before the pre-emptor has asserted his claim, the latter may take it under whichever of the two sales he prefers. The right of pre-emption takes effect once the sale is fully concluded; it becomes due at that moment, and title passes when the price is paid.
If a holder of one of the fixed, designated shares in an estate (dhawu al-furūḍ) sells his portion of property subject to pre-emption, he is more entitled to exercise pre-emption than the ʿaṣabah (agnatic heirs). Conversely, should one of the ʿaṣabah sell his share, all his co-owners—whether fellow ʿaṣabah or fixed-share heirs—stand on the same footing with respect to pre-emption: the fixed-share heirs may override the ʿaṣabah, while the ʿaṣabah may not override a shareholder who already has someone sharing that very share with him. Some jurists say that neither group overrides the other; others say that each may override the other, for the operative cause is joint ownership and indivision. All three views are reported within the Medinan Mālikī school, yet the first is the position that best represents Mālik.
Example: A man dies leaving two daughters and certain ʿaṣabah. If one of the ʿaṣabah sells his share, the two daughters may join the remaining ʿaṣabah in claiming pre-emption. If, however, one of the daughters sells, her sister has the stronger claim, and none of the ʿaṣabah may join her. Likewise, if the deceased were a brother who left sons, and one of those sons sells, their paternal uncles may not pre-empt with them; the sons alone have the superior claim. But if the heirs are a mixture of full brothers and consanguine half-brothers, and a full brother sells, the consanguine brothers may join him in pre-emption, for their common father unites them.
Should a man donate or bequeath a share of a house to several persons, and one of those recipients then sells the share that was given or bequeathed to him, the donor’s (or testator’s) heirs may, if they wish, join the seller’s co-sharers in exercising pre-emption; none of those recipients, however, may intrude upon the heirs in the pre-emption they pursue among themselves.
When a house is owned jointly by two men, and one of them donates his share or turns it into an endowment, and thereafter his partner sells his own share, then no