Abstract:
Possession, by title of ownership, shall be taken as proof of ownership (Article 35 of Civil Code); If someone claims ownership versus a possessor, he has to prove it and illegal possession of the possessor (Zil yad). This situation is referred to as Amarah-e-Yad. If it is proved that the claimant was formerly the owner of the property ,by the continuity of it( Istishab of ownership), a conflict arises between Istishab and Amarah and according to the opinion of Islamic jurists, Amarah precedes Istishab, unless the ownership of the claimant has been proved with admission of the possessor. In this case, Istishab precedes Amarah (Article 37 of the Civil Code). This issue has wondered some of the jurists who believe that the proof of the former ownership of the claimant, with any reason, invalids the Amarah; On the other hand, some believe that there is no conflict between current ownership of possessor and former ownership of the claimant and in any case, Amarah precedes Istishab, and proves the ownership of possessor. This article tries to examine the issue from a jurisprudential (Fiqhi) point of view and analyze the Article 37 of Civil Code.
Machine summary:
1 A group of others also consider the presumption of Yad to be absolutely prior to Istishab and believe that there is no conflict between the claimant's previous ownership, established by any evidence, and the current ownership of the possessor (Sheikh Tusi, 1407 AH, Vol. 6, p.
Others, however, consider Istishab to be absolutely prior to Yad, believing that with any evidence that establishes the claimant's previous ownership, the presumption of Yad loses its validity, and the possessor must prove that the property was transferred to him through a legitimate legal transfer (Sheikh Tusi, 1407 AH, Vol. 6, p.
This statement is correct in terms of the general rule of the issue; meaning, this principle that "presumptions govern practical principles" is true in a general sense, but the debate lies in the identification of the minor premise; there is serious doubt as to whether the premise of the problem is truly a real instance of the conflict between the principle of Istishab and the presumption of Yad. In the book Fara'id al-Usul, Sheikh Ansari, despite considering the presumption of Yad absolutely prior to the principle of Istishab, in line with justifying the famous opinion which considers the presumption of Yad invalid in the case of the possessor's confession to the previous ownership of the claimant and believes that the possessor, to prove his own ownership, he must prove that the property has been transferred to him by a legal transferor.
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