Islamic Fiqh > Judgment and testimony > Judgment (qada) and its conditions > Second case: each of the two litigants holds proof
Contents
Updated on 06 October 2026 at 10:50 PM
This chapter sets out the rules of judgment in disputes between two litigants over a single item of property: how proof, possession and the oath are apportioned, and how judgment is rendered when proofs confront one another or when neither of them exists. It covers the clash of two ownership claims depending on whether the item is in the hand of one of the two, of a third party, or of no one; the disagreement of spouses over household furniture; the preference of one proof over another; the dispute over a wall between two houses; and the claim of a marriage contract. The positions of the four schools are reported together with their bases and their classical references.
The item in dispute may be in the hand of one of the two litigants, of a third party, or in the hand of no one. The basic rule is the saying of the Prophet (peace be upon him):
The proof is upon the claimant, and the oath is upon the one who denies.
Authentic hadith reported by al-Bayhaqi in as-Sunan al-Kubra (20990)
Ibn Qudama (may Allah have mercy on him) said: if one of the two litigants holds proof, judgment is rendered by it without any disagreement we know of (al-Mughni 10/251, al-Qawanin al-fiqhiyya p. 200, al-Bayan 13/161).
The second case is the one in which each of the two litigants holds proof.
The Shafi'is in the school and the Hanbalis in the school held that if the two dispute an item held by a third party who denies it, whether for himself or for either of the two litigants, or if the item is in no one's hand, and each of the two holds proof, then the two proofs fall away and the matter is as if no proof existed. Each of the two proofs establishes ownership for the one in whose favor it testifies, and a single thing cannot belong to two persons in one and the same state; since neither proof has superiority over the other, both fall. Moreover, both cast doubt upon the right of the owner of the item, just as if a proof testified to ownership of an item in general in favor of one of the two men, without designating the item itself.
The schools then differ over what must be obtained as an outcome of the judgment.
The Hanafis, the Shafi'is in one opinion and the Hanbalis in one narration held that the item is judged to be divided between the two in halves, if they both claim absolute ownership or if the date of their two holdings is identical. This rests upon what Abu Musa reported:
Two men claimed a camel in the time of the Messenger of Allah (peace be upon him); each of the two brought two witnesses, and the Messenger of Allah (peace be upon him) divided it between them in halves.
Weak hadith reported by Abu Dawud (6315), Abd al-Razzaq in al-Musannaf (15202), al-Tahawi in Sharh Mushkil al-Athar (4754, 4755) and al-Hakim in al-Mustadrak (7032)
And from Abu Hurayrah (may Allah be pleased with him):
Two men claimed a riding animal; each of the two brought two witnesses, and the Messenger of Allah (peace be upon him) judged between them in halves.
Reported by Ibn Hibban in his Sahih (5068)
The basis of this is that proof is a legal title just like possession: if each of the two held possession, the item would be divided between them, and it is the same when each holds proof. The two litigants are moreover equal in the cause of entitlement, a cause that admits sharing: they are therefore equal in entitlement, like the two legatees to each of whom the third of a thing was bequeathed, that third being then divided between them in halves. It is the same for the two creditors of an estate, unlike marriage, which does not admit sharing, so that mutual invalidation (tahatur) becomes inevitable. And because proofs are among the legal titles that must be acted upon whenever possible, which is possible here: possession may indeed alternate over a single item at different times, each party relying on what it witnessed of the general cause of testimony, namely possession; so the division into halves is judged between them (Sharh Mukhtasar al-Tahawi by al-Jassas 8/191, Tabsirat al-Haqa'iq 4/316, al-Jawhara al-Nayyira 6/99, al-Lubab 2/418).
It is not permitted to decide by holding that the witnesses of one of the parties are fairer, because the aim is fully achieved by the whole, namely refraining from lying; nor is it permitted to decide by abundance of number, because preference comes from the strength of the proof, not from its number.
The view of the Malikis is like that of the Hanafis, except that they said: the item is divided between them after the mutual oath is taken according to the measure of their respective claims; for they are two proofs that would conflict if either litigant stood alone with his, since judgment would then be rendered for ownership in his favor. When they confront one another, the thing must therefore be divided between the two, the basis being possession. And because they are equal in the cause of entitlement and the thing admits sharing, judgment must be rendered for both.
Ashhab, Sahnun and Qadi Abd al-Wahhab said: the item is divided between them equally, even if one claims its half and the other all of it (al-Ishraf ala Nukat Masa'il al-Khilaf 5/99-100, no. 1852, al-Taj wa-l-Iklil 5/198, Sharh Mukhtasar Khalil 7/233, al-Qawanin al-fiqhiyya p. 200, al-Sharh al-Kabir with Hashiyat al-Dasuqi 6/151-152, Tathbir al-Mukhtasar 5/202).
The Shafi'is held, in one opinion, that the matter is suspended until the two come to an agreement: one of the two is indeed truthful inwardly and the other a liar, and it is hoped that the truthful one will become apparent; so one must suspend until the truthful one is identified, like two guardians who marry a woman to two men, one of the marriages preceding the other and the first becoming doubtful.
The Shafi'is, in another opinion, and the Hanbalis in one narration held that lots are drawn between them and the item is judged for the one for whom the lot comes out. This rests upon what Sa'id ibn al-Musayyib reported: people disputed before the Prophet (peace be upon him) and their proofs were equal in fairness and in number; the Prophet (peace be upon him) therefore drew lots between them and judged in favor of the one for whom the lot came out. The two litigants are indeed equal in the claim and in the proof, hence the drawing of lots, as when a man manumits slaves in his final illness and they do not exceed the third of his estate.
Must the one for whom the lot comes out take an oath?
The Hanbalis and the Shafi'is, in one opinion, said: he swears; for the drawing of lots is weak, so it was strengthened by the oath, just as the proof was strengthened by it; the two combined thus stand in place of the possession by which one of the two proofs would be preferred.
The Shafi'is, in the second opinion, said: he is not required to swear, and this is the sounder view; for the proof was strengthened by the drawing of lots, and whenever two proofs confront each other and a preference is found with one of them, it prevails and no other factor of preference is sought, as when one of the two proofs is accompanied by possession (al-Bayan 13/163-164, Rawdat al-Talibin 7/513-514, al-Najm al-Wahhaj 10/431, Mughni al-Muhtaj 6/455, Tuhfat al-Muhtaj 12/507, al-Mughni 10/251-252, al-Kafi 4/490).
The jurists differed concerning two litigants who dispute an item held by a third party, or one held by no one, while one of the two holds no proof: are lots drawn between them, with the one for whom the lot comes out swearing for his companion and the item being handed over to him, or is the item divided between them?
The Hanafis and the Malikis held that the item is divided between them as if each of the two held proof (Mukhtasar Ikhtilaf al-Ulama 4/225, Tabsirat al-Haqa'iq 4/315-316, al-Qawanin al-fiqhiyya p. 200, Majmu al-Fatawa 31/337).
The Hanbalis held that lots are drawn between them: the one for whom the lot comes out swears that the item is his and it is handed over to him. This rests upon what Abu Hurayrah (may Allah be pleased with him) reported: two men disputed over an item before the Prophet (peace be upon him) with neither of them holding proof, and the Prophet said:
Have them take an oath over its present state, whether they accept it or refuse.
Authentic hadith reported by Abu Dawud (3616), Ibn Majah (2346) and Ahmad (10352)
And because they are equal and no proof exists for them, lots are drawn between them, like the two wives when the husband wishes to travel with one of them (al-Kafi 4/489, Sharh Muntaha al-Iradat 6/610).
Second situation: the two litigants claim an item held by one of them
When two men claim an item that is in the hand of one of them, two configurations arise. First configuration: each of the two establishes proof. The jurists differed concerning the item in a person's hand claimed by another who establishes proof that it belongs to him, while the holder likewise establishes proof: to whom does the item belong? To the holder, called the insider (the one who holds it), or to the outsider, that is, the one in whose hand it is not?
The majority of the jurists, namely the Hanafis, the Malikis and the Shafi'is, held that when the item is in a person's hand and another claims it, and each of the two brings proof, the proof of the holder, the insider, is preferred. This rests upon what Imam al-Shafi'i reported from Jabir ibn Abdullah (may Allah be pleased with him):
Two men disputed over a riding animal; each of the two established proof that it was the offspring of his riding animal, born in his ownership, and the Messenger of Allah (peace be upon him) judged in favor of the one in whose hand it was.
Reported by Imam al-Shafi'i in his Musnad (p. 330) and by al-Bayhaqi in as-Sunan al-Kubra (21012)
The two were indeed equal in establishing proof, and the proof of the holder was strengthened by his possession, so it was preferred. The secret of this: when the two titles confronted one another, they fell away together, and the item remains in the hand of its holder, nothing requiring its return; or: one of the two proofs was supported by the outward indication, namely possession, and so it prevailed (Hujjat Allah al-Baligha 1/781).
Al-Damiri (may Allah have mercy on him) said: Shurayh judged on this basis, and this is the view of most scholars. It has been said, on the other hand: nothing is judged in his favor unless he takes an oath; for the two proofs opposed and fell away, and possession remains, and judgment is not rendered by it without an oath. In the proof of the holder, he is not required to state the cause of ownership, purchase, inheritance or the like, nor is he required to take an oath in addition to his proof (al-Najm al-Wahhaj 10/433, Mughni al-Muhtaj 6/456).
Imam al-Shafi'i (may Allah have mercy on him) said: when two men dispute over property, consider which of the two has the stronger cause in what they dispute, and assign it to him; if their two causes are equal, neither of the two is more entitled than the other, and they are equal in this respect. If what they dispute is in the hand of one of them, the holder has a cause stronger than that of the other; the item therefore belongs to him with his oath, if no proof has been established for either of the two. If the one who does not hold the item establishes proof in support of his claim, it is then said to the holder: the fair proof, the one that does not lean toward itself by its testimony and does not push its testimony away from itself, is stronger than the fact that the thing is in your hand, for it may be in your hand while you are not its owner; the thing therefore belongs to the one who established proof, by the superiority of his cause over yours.
If the two establish proof together, it is said: you are equal in the claim and in the proof, and the one who holds the thing has a cause, by the fact that it is in his hand, stronger than yours: it therefore belongs to him by the superiority of his cause. This is a balanced reasoning according to the principle of analogy, even if there were no sunnah on the subject, yet there is one in accordance with what we have said.
Al-Rabi' reported that al-Shafi'i reported from Ibn Abi Yahya, from Ishaq ibn Abi Farwa, from Umar ibn al-Hakam, from Jabir ibn Abdullah, the hadith cited above, and then said: "This is the view of everyone whose words I have memorized and whom I have met, concerning the offspring born in ownership and what occurs only once" (al-Umm 6/236-237).
Imam al-Imrani (may Allah have mercy on him) said: if the two claim an item in the hand of one of them and each establishes proof, judgment is rendered for the holder. Shurayh, al-Nakha'i, al-Hakam, Malik and Abu Thawr said the same.
Abu Hanifa said: when the claimant establishes proof and the defendant wishes to establish proof against him, the case is examined. If the defendant's proof testifies to absolute ownership, or to ownership attached to a cause that repeats itself, such as a claim concerning vessels that are melted down and recast a second and a third time, or a garment of linen or wool that is unraveled and rewoven, his proof is not heard. If, on the contrary, his proof testifies to ownership attached to a cause that does not repeat itself, such as a claim concerning the riding animal, when the claimant's proof testifies that the animal belongs to him as offspring born in his ownership, and the defendant's proof testifies that it belongs to him as offspring born in his ownership, then here the proof of the one without possession is stronger than that of the holder. Ahmad said: the proof of the one without possession is stronger in every situation.
Our argument is what is reported: of the two men who disputed before the Prophet (peace be upon him) over a riding animal, each establishing proof that it belonged to him as offspring born in his ownership, the Prophet (peace be upon him) gave the animal to the one in whose hand it was. Each of the two has proof, and one of the two enjoys a preference by possession: his proof is therefore preferred, like two reports that confront one another when one of them carries a factor of preference (al-Bayan 13/162-163).
It is stated in al-Mudawwana al-Kubra, concerning two men claiming goods that are in the hand of one of them while both establish proof: if goods are in a man's hand which another claims while establishing proof, and the holder likewise claims them while establishing proof, to whom do they belong? The answer: to the one in whose hand they are, according to Malik, if the two proofs are equal in fairness; and Ibn al-Qasim said: the oath then falls upon him (al-Mudawwana al-Kubra 13/186-187).
Imam al-Sarakhsi (may Allah have mercy on him) said: a riding animal is in a man's hand which another claims as the offspring of his riding animal, born with him; the one establishes proof of this and the holder establishes a similar proof: judgment is rendered for the holder by istihsan, legal preference. By analogy, judgment would be rendered for the outsider, and this is the view of Ibn Abi Layla. The reason is that the aim of each of the two is to establish ownership, so that no one becomes an opponent except by claiming ownership for himself. This is the meaning of "the proof of the holder does not contradict the proof of the outsider," as we explained in the claim of absolute ownership, with no difference between the two: the establishment of proof upon absolute ownership entails entitlement from the very origin, just like the establishment of proof upon the offspring born in ownership, except that we preferred the report, namely whatAbu Hanifa (may Allah have mercy on him) reported from al-Haytham, from a man, from Jabir ibn Abdullah:
A man claimed a she-camel before the Messenger of Allah (peace be upon him) against another man, and established proof that she was his she-camel, offspring born in his ownership; the holder established proof that she was his riding animal, offspring born in his ownership, and the Messenger of Allah (peace be upon him) judged in favor of the one in whose hand she was.
Report narrated by Abu Hanifa from al-Haytham, from Jabir ibn Abdullah
The possession of the one who holds proof does not indeed indicate priority of ownership: he establishes by his proof what is not established, hence the necessity of the oath by virtue of the outward appearance of his possession, and then his proof is strengthened by his possession, unlike absolute ownership: there, his proof establishes only what is established for him by the outward appearance of his possession, hence the necessary acceptance of his proof (al-Mabsut 17/64, al-Lubab 2/422-423).
The Hanbalis held that when the item is in the hand of one of the two and each holds proof, the proof of the claimant, that is, of the outsider, is heard, and judgment is rendered for him by virtue of the following hadith:
The proof is upon the claimant, and the oath is upon the one who denies.
Authentic hadith reported by al-Bayhaqi in as-Sunan al-Kubra (20990)
Ibn Qudama (may Allah have mercy on him) said: if one of the two litigants holds proof, judgment is rendered for him by it, without any disagreement we know of (al-Mughni 10/251, al-Qawanin al-fiqhiyya p. 200, al-Bayan 13/161, Sharh Muntaha al-Iradat 6/604-605).
Imam al-Imrani (may Allah have mercy on him) said: if the two dispute an item and one of them establishes proof, judgment is rendered for the holder of the proof, whether the item is in the hand of the holder of the proof, in the hand of the other claimant, in the hand of a third party, or in the hand of no one; according to the saying of the Prophet (peace be upon him): "The proof is upon the claimant, and the oath is upon the one who denies" (authentic hadith reported by al-Bayhaqi in as-Sunan al-Kubra, 20990). He began indeed with judgment rendered by means of proof, which indicates that it is the strongest title; and here this man established proof, so judgment is rendered for him by it (al-Bayan 13/161).
Third situation: the two litigants claim an item held by both of them
When two men dispute over an item that is in their hands, several cases arise. First situation: neither of the two has proof. If two men dispute an item in their hands, each claiming that it belongs to him to the exclusion of his companion, with no proof existing for them, each of the two takes an oath against his companion, and the item is divided into halves between them, with no disagreement among the jurists; it is the same if they both refuse the oath.
Imam Ibn Qudama (may Allah have mercy on him) said: if two men dispute an item in their hands, each claiming that it belongs to him to the exclusion of his companion, with no proof existing for them, each of the two takes an oath against his companion and the item is divided into halves between them; we know of no disagreement on this, for the possession of each of the two extends over the half of the item, and the word is that of the holder, accompanied by his oath. If they both refuse the oath, the item is likewise between them, for each of the two is entitled to what is in the hand of the other by reason of his refusal. If one of the two refuses and the other swears, judgment is rendered in favor of the latter for the whole of the item, for he is entitled to what is in his own hand by his oath, and to what is in the hand of his companion, either by that companion's refusal, or by his own oath which was returned to him when his companion refused.
If one of the two holds proof against the other, judgment is rendered for him, without any known disagreement (al-Mughni 10/246-247, al-Bayan 13/160-161).
Imam Ibn Qudama also said: if there is a house in their hands, one claiming all of it and the other its half, with no proof existing, it is divided into halves between them; Ahmad explicitly stated this, and the oath on the claimed half is owed for the benefit of the companion, with no oath upon the other, for the half judged in his favor admits no contest; we know of no disagreement on this. It has however been reported from Ibn Shubruma that the claimant of the whole receives three quarters of it, for the half is his without contest, and the other half is divided between them according to their respective claims.
Our answer is that the possession of the claimant of the half extends over what he claims; the word is therefore his concerning it, with his oath, as in the other claims.
If each of the two holds proof covering what he claims, the two proofs confront one another: the half goes to the claimant of the whole, and the other half depends on the question which of the two proofs is preferred. According to the apparent view of the school, the proof of the claimant is preferred, and the house then belongs in its entirety to the claimant of the whole; this is the view ofAbu Hanifa and his two companions. If the house is in the hand of a third party who does not claim it, the half belongs to the claimant of the whole without possible contest, and lots are drawn between the two for the other half: the one for whom the lot comes out swears, and it becomes his. If each of the two holds proof, the two proofs oppose and fall away, and the two litigants are as if they held no proof; if it is said that the two proofs are put to use, lots are drawn between them and the one for whom the lot comes out is preferred, according to one of the two aspects.
The second aspect: the disputed half is divided between them, so that the claimant of the whole receives three quarters of the house.
Section: if the house is in the hands of three persons, one claiming its half, another its third and the third its sixth, this is an agreement among them on the manner in which their ownership is exercised, with no divergence or contradiction. If each of them claims that the remainder of the house is held by him as a deposit or a loan, and each holds proof of the ownership he claims, judgment is rendered for him, for his proof testifies in his favor concerning what he claims, with nothing opposing it; if one of the three holds no proof, each takes an oath and a third of the house is confirmed in his hand (al-Mughni 10/248-249).
Second situation: each of the two holds proof
The jurists differed concerning an item in the hand of each of the two litigants, each establishing proof, the two proofs being equal: is the item divided into halves between them, or judged according to their claims, or are lots drawn between them, the one for whom the lot comes out swearing and then taking the item?
The Hanafis, the Malikis, the Shafi'is and the Hanbalis held that if each of the two establishes proof and the two proofs oppose one another, the item is divided between them in halves, according to the hadith of Abu Hurayrah (may Allah be pleased with him):
Two men claimed a riding animal; each of the two brought two witnesses, and the Messenger of Allah (peace be upon him) judged between them in halves.
Reported by Ibn Hibban in his Sahih (5068)
As well as according to what Abu Musa (may Allah be pleased with him) reported:
Two men disputed before the Messenger of Allah (peace be upon him) over a camel; each of the two brought two witnesses, and the Messenger of Allah (peace be upon him) judged the camel divided between them in halves.
Authentic hadith reported by Abu Dawud (3613), al-Nasa'i (5424) and Ibn Majah (2330)
And because each of the two is an insider for half of the item and an outsider for its other half: the proof of each of the two is preferred for what is in his own hand, by the one who prefers the insider's proof, and for what is in his companion's hand, by the one who prefers the outsider's proof; the two are therefore equal according to either of the two views.
A divergence arose: does each of the two swear on the half judged to him, or does the item belong to him without an oath?
The Shafi'is, in one opinion, and the Hanbalis, in one narration, held that he swears; for the two proofs, having opposed one another without any factor of preference, must fall away, like two reports that oppose one another in equal measure; and when they fall away, the two litigants are like people without proof, and each of the two swears on the half judged to him.
The Hanafis, the Malikis, the Shafi'is in the second opinion and the Hanbalis in the second narration held that the item is divided between them without an oath, according to the report of Abu Hurayrah (may Allah be pleased with him) already cited.
First situation: one of the two holds proof covering what he claims
The people of knowledge agreed that if the two spouses differ over the furniture of the home, or over part of it, each of the two saying: "All of it is mine", or each of the two saying: "This item is mine", and one of the two holds proof, that proof is established in his favor.
Imam Ibn Qudama (may Allah have mercy on him) said: the two spouses, if they differ over the furniture of the home or over part of it, each of the two saying: "All of it is mine", or each of the two saying: "This item is mine", and one of the two holds proof, that proof is established in his favor without disagreement (al-Mughni 10/272).
Imam Ibn Hazm (may Allah have mercy on him) said: they agreed that whichever of the two spouses establishes proof concerning the furniture of the home is judged for by it, on condition that he also takes an oath along with his proof (Maratib al-Ijma p. 82).
Second situation: neither of the two has proof
The jurists differed concerning the two spouses who differ over the furniture of the home they inhabit, each claiming that it belongs to him, with no proof existing for either: does judgment mean that what suits men belongs to the man, what suits women belongs to the woman, and what suits both is divided between them, or do the two take an oath and the item is divided, whether the item suits men rather than women, or women rather than men?
The Hanafis held that if the two spouses differ over the furniture of the home, what suits men belongs to the man, what suits women belongs to the woman, and what suits both belongs to the man. The categories are as follows:
There is no difference between the case in which the disagreement occurs during the marriage and that in which it occurs after separation. If one of the two dies and his heirs differ with the other, what suits men and women belongs to the survivor, for possession belongs to the living rather than to the dead, and this is the view of Abu Hanifa.
Abu Yusuf said: there is given to the woman what suffices to equip a woman like her, and the remainder belongs to the man with his oath; for the outward indication is that the woman brings the trousseau from her family's house, and beyond that nothing opposes the outward possession of the man; divorce and death are identical in this respect. Muhammad said: what was for men belongs to the man, what was for women belongs to the woman, and what suits both belongs to the man or to his heirs; divorce and death are identical, for the heir stands in the place of the deceased (Mukhtasar Ikhtilaf al-Ulama 2/345-346, al-Mabsut 5/213, al-Hidaya 3/166, al-Ikhtiyar 2/147-148, al-Jawhara al-Nayyira 6/132-133, al-Lubab 2/440-441).
The Malikis held that if the two spouses differ over the furniture of the home, whether that disagreement occurs before or after consummation of the marriage, before or after divorce, whether they are Muslims or unbelievers, free or slaves, or in disagreement over the state of consecration, or after separation by li'an, divorce, ila or annulment, and no proof exists for either spouse, recourse is had in this matter to custom. What suits women, such as jewelry, is decided by the woman's word, with an oath if she is not in need; otherwise her word is accepted only up to the amount of her mahr. What suits men and women together, or men alone, is decided by the man's word, with an oath; for the house is his house, and she follows him in it; the outward indication is that what is in a person's house belongs to him, except what custom attests is mostly the woman's. The man's word should likewise not be accepted, in case of dispute, in what does not resemble ownership on his part owing to his poverty, among what belongs to men (al-Ishraf ala Nukat Masa'il al-Khilaf 5/101-102, no. 1854, Sharh Mukhtasar Khalil 3/301, Tathbir al-Mukhtasar 3/81-82).
The Shafi'is held that if the two spouses differ over the furniture of the home they inhabit, each claiming that it belongs to him, with no proof existing for either, the two take an oath, each of the two swearing against his companion on his claim. If they both swear, the item is divided between them, whether the item suits men rather than women, such as weapons, or women rather than men, such as jewelry, or suits both, such as dinars and dirhams; and whether the item is in their hands by way of actual holding or by way of judgment: actual holding is that the item is taken in their hands, possession by judgment is that it is in their ownership. Men are not given exclusivity over men's implements. It is the same whether they differ during the marriage bond or after separation.
It is likewise if they both die and their heirs differ, or if one dies and the survivor differs with the heirs of the deceased; and Ibn Mas'ud as well as Uthman al-Batti said this. The two spouses are indeed equal in the possession established over the disputed thing, so the word is theirs, as if they disputed the house they inhabit.
The Shafi'is further object that judgment by suitability is inadmissible: a man may own a woman's furniture, and a woman may own a man's furniture. If conjectures were resorted to, it would be judged that a tanner and a perfumer disputing over a perfume and tanned leather in their hands each receive what suits him; and that if a rich man and a poor man dispute over pearls, the pearls go to the rich man. Yet judgment by conjecture is not permitted (al-Umm 7/123, al-Hawi al-Kabir 17/408-409, al-Bayan 13/215-216, al-Najm al-Wahhaj 10/450).
The Hanbalis said: if the two spouses dispute the furniture of the home during the marriage bond or after separation, or if their heirs dispute after the death of both, or one of the two and the heirs of the other, with no proof existing, it is judged that what suits men among their clothes, their turbans and their weapons belongs to the man; what suits women among their clothes, their veils, their jewelry and their spindles belongs to the woman; and what suits both, among beds, felt mats and vessels, is between them. For the outward indication is that what suits a person belongs to him; his word is therefore preferred in this case, like that of the holder. The Qadi said: this applies when the possessions of the two extend over the item by way of judgment, that is, it is in their dwelling; if it is in the hand of one of the two, by actual holding, it belongs to that one; if it is in their hands, it is between them, for actual holding is stronger, and preference is given by it (al-Mughni 10/272-273, al-Kafi 4/505, al-Zarkashi's Sharh 3/433).
The preference of one proof over another
The jurists differed concerning the preference of one proof over another: does a proof prevail by abundance of number or not? Does the proof of the one who brings two witnesses prevail over that of the one who brings one, accompanied by an oath? And does the proof of one of the two prevail by superiority of probity, or not?