after possession of the undivided share has been delivered, the two parties’ living in the house—one occupying the half that remains his and the other occupying the other half, whether under an arrangement dividing their use or otherwise—invalidates the gift, as Mālik holds in the case of residence in the donated property itself, has contravened the consensus of the Muslims. Such a person is far removed from any sound grasp of jurisprudence or knowledge of Islamic law. For if this were correct, someone who gave away an undivided share would be prevented from benefiting from what remained his, and would be in the same position as someone who had given away the whole property.

Moreover, the jurists discussed this only in relation to the donated property, because the donor’s continued control over it, or its return to him shortly afterwards, ordinarily precludes the recipient’s taking possession. This might also become a means of making a gift without transferring possession: the donor could portray his residence there as a loan for use, as a stratagem. Hence it is reported that ‘Uthmān, may Allah be pleased with him, said:

“What is the matter with people who give their children gifts, but if a man’s child dies, he says, ‘It is my property and remains in my possession,’ yet in the event of his own death, his claim is, ‘I had given it to him’? Only what the child has taken into possession from his father’s property is established as a gift.”

They then asked him about a young child, and he said, “His father’s possession counts as possession on his behalf.” Mālik and others adopted this position. This is clear in itself, whether the donated property is separately owned or an undivided share.

As for the other share, which was not given away, it is like a separate item of property that was not given away. Its owner exercises the rights of a co-owner: if the property requires repairs, he is compelled to undertake them according to Ahmad and according to the apparent position of Mālik’s school. The right of pre-emption also applies to it. Where physical division of the property is possible—that is, if it is divisible—it may be divided.

If it is indivisible, may he be compelled to sell when the other co-owner requests this so that they can divide the proceeds? Scholars hold two views on this. Compelling the sale is the position of Mālik, Abū Hanīfah, and Ahmad. The contrary position is that of