What is the ruling on a resident claiming a non-resident's share of a property from the possessor, asserting the purchase and right of preemption (Shuf'ah)?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
If a resident claims a non-resident's share of a jointly owned property from the current possessor, asserting that the possessor sold it to him and that he is entitled to take it by preemption, and the possessor affirms this claim, the preemption claimant has the right to take the share. This is based on the principle that the possessor's affirmation regarding what is in his possession is accepted. Abu Hanifa and his followers hold this view. The evidence supporting the affirmation is analogous to the possessor confirming the basis of his ownership. Furthermore, if one claimed against the possessor that he sold the non-resident's share with permission, and the agent affirmed it, this is treated like the seller affirming the sale.
Supporting text
The scholars of Shafi'i school have two opinions on this matter. One view is that the preemption claimant cannot take the share because this affirmation is made against another party (the non-resident). If the non-resident later returns and denies the sale or the permission to sell, his statement is accepted with his oath, and the share is reclaimed. The possessor (the initial affirmant) is liable for the rental income received, as these usufructs were consumed under his possession. If the principal sues the agent, the agent reverts to the preemption holder; if the principal sues the preemption holder, the preemption holder bears the loss entirely.