Book of Istihqāq (Restoration of Wrongfully Held Property)

Istihqāq is when a judge, on the strength of admissible testimony, rules in favour of a man who claims property that is in another person’s possession, after the claimant swears that he has neither sold the article, nor authorised anyone to sell it, nor given it away as a gift or charity, and that his ownership has remained intact up to that very moment.

Once he has taken the oath together with the witnesses who confirm his title, the person from whose hand the property is removed may seek redress from the one who sold it to him, or from the co-heir who divided the inheritance with him and share it anew. If he had received the item as a gift, he has no claim against the donor. If he had accepted it in discharge of a debt, he may revert to claiming that debt.

Whoever purchases an item that is later taken from him through istihqāq has recourse against the seller for the purchase price only, not for the current market value of the adjudicated article.

If something a woman received as her bridal dowry is reclaimed from her by right of istihqāq, she may claim its value in money but not another dowry of the same kind. The same rule applies if the adjudicated property is a tract of land shared between the spouses, or property taken in lieu of a pre-emption right.

With respect to property that has already been divided, an istihqāq claim is treated like the discovery of a defect in the goods, whether the affected share is small or large.

If one commodity is exchanged for another and both parties take possession, and then one of the two commodities is reclaimed from the hand of one of them through istihqāq, that party may take back the commodity he himself delivered, provided he can find it; if not, he may claim its like—so long as it has an equivalent and is a fungible good measured by volume—