Assalamu Alaikum wa Rahmatullahi wa Barakatuh!
What do the esteemed scholars andn respected muftis say regarding the following matter: There was a land partnership between Nooruddin and brothers with Abdul Malik and Abdul Majeed. Some money was owed by Abdul Majeed to Nooruddin. Abdul Majeed has since passed away. Abdul Majeed and Abdul Malik were co-owners of a piece of land. The nature of the land is such that Abdul Malik and Abdul Majeed jointly owned 3¼ annas (a historical unit of share in land), while 12¾ annas were owned by other people. This land spans across multiple survey numbers, with government land lying in between. Abdul Majeed had given some portion of his land to Nooruddin in exchange for the loan, but no written agreement was made, no formal possession was given, nor were any documents handed over. Also, due to the nature of the land, possession couldn’t practically be given. However, witnesses are present who testify that Abdul Majeed gave the land to Nooruddin in lieu of the debt.
The question is: Who does this land now legally belong to – Nooruddin or the heirs of Abdul Majeed – given that land was given in return for a loan, and there are witnesses to this transaction, but no formal documentation or possession?
Giving one's share from jointly owned land in exchange for a loan, in the presence of witnesses, and the creditor accepting it — is undoubtedly permissible. This constitutes a valid sale (contract), as a result of which Nooruddin will be considered the rightful owner of that share.
کمافی الشامیۃ: اذا باع احد الشریکین فی البناء والغراس فی الارض المحتکرۃ حصتہ من اجنبی ھل یجوز بیع ام لا ؟ اجاب ! نعم یجوز وکذا الشریک اھ(4/301)۔