“Glory be to Allah! He intends to stand,” while others say, “Glory be to Allah! He intends to sit.” The scholars say: Both statements are disregarded, and the imam returns to what he himself had intended. Likewise here: when the two sets of evidence conflict, they cancel one another out. We say to the party not in possession, “We disregard your evidence,” and to the possessor, “We disregard your evidence.” The oath then remains upon the one who denies the claim. Thus, the defendant swears that the property belongs to him and that its ownership has not passed away from him, and it is adjudged to be his.
They answered the statement of the Messenger, peace and blessings be upon him, “The evidence is upon the claimant, and the oath is upon the one who denies,” by saying that this implies that the defendant has no evidence. For if we were to take the apparent meaning of the hadith, we would say regarding the case you have mentioned: if the defendant has evidence, the oath is waived.
We say: This is not correct, because the Messenger, peace and blessings be upon him, placed the oath upon the defendant, whereas you say that if he has evidence, there is no need for an oath. This shows that the Messenger, peace and blessings be upon him, intended a claim in which the claimant has evidence while the defendant has no evidence. In that case, nothing remains except the oath when he has no evidence. The Messenger, peace and blessings be upon him, did not mean the case in which the two sets of evidence conflict. For the requirement of the Sacred Law is to establish justice, and establishing justice requires us to say: every set of evidence that conflicts with another nullifies it. It is then as though neither man has any evidence, and we return to the original principle. We say to the defendant, who is the possessor: “Swear.” If he swears, judgment is given that the property in his possession belongs to him, and the claim is dismissed.
This view is held by many of the scholars, and it is stronger in reasoning than the first view. It remains to be said that, in a claim that ownership has been transferred, the original presumption is that no transfer has occurred. Thus, the property remains in the defendant’s possession along with his oath.