How is possession of the estate managed when the distribution depends on the known status of a missing person?
Chapter on Distant Kindred (Dhawu al-Arham)
Al-Mughni
Book of Inheritance Shares (Farā'id)
Primary text
If the estate is in the possession of established heirs (e.g., two daughters when the third heir is a son whose father is missing), the judge should not remove the property from their hands nor hold any part of it, even if the daughters acknowledge the father is missing or claim he is dead. If the property is in the hands of the missing person's son, the other heirs (the daughters) only receive the minimum possible share (half). If the property is held by a third party, and that party admits the son is missing, half is held in trust for him. If the third party asserts the missing person is dead, two-thirds must be given to the daughters, and one-third held, unless the missing person's son admits his father's death, in which case the remainder is given to him. The majority adhere to the first principle regarding possession.
Supporting text
Some Shafi'i scholars argue that the property should be divided among those present because they are certain, while the missing person is doubtful and should not inherit based on doubt. Muhammad ibn al-Hasan supports the view that possession dictates the initial status quo; the judge should not disturb the current possession unless litigation demands it.