The heir; because the original status is with them. If the mudabbar provides evidence for his claim, it is accepted, and it is prioritized over the evidence of the heirs if they have evidence, because the evidence of the mudabbar testifies to an increase. If the mudabbar does not acknowledge that it was in his possession during his master's lifetime, and the heirs provide evidence for it, then is their evidence heard? There are two views.
1973 - Issue: He said: (And he may have intercourse with his mudabbarah.)
Meaning: He is permitted to have intercourse with her. It was narrated from Ibn Umar that he performed tadbir for two slave women and used to have intercourse with them. Among those who held this view were Ibn Abbas, Sa'id ibn al-Musayyib, 'Ata', al-Thawri, al-Nakha'i, Malik, al-Awza'i, al-Layth, and al-Shafi'i. Ahmad said: I do not know of anyone who disliked that, except for al-Zuhri. It was narrated from al-Awza'i that he used to say: If he was having intercourse with her before her tadbir, then there is no harm in having intercourse with her after it, but if he was not having intercourse with her [before it, he shall not have intercourse with her] after her tadbir. Our position is that she is his owned slave, she has not purchased herself from him, so it is lawful for him to have intercourse with her, due to the saying of Allah the Almighty: {or what their right hands possess, for then they are not blameworthy}. And this is like the umm al-walad.
Section: The daughter of the mudabbarah is like her mother in terms of the permissibility of having intercourse with her, if he had not had intercourse with her mother. According to another opinion, [he may not have intercourse with her]; because the right to freedom has been established for her as a consequence, resembling the child of a mukatabah (a slave in a contract of emancipation). Our position is that the ownership of her master over her is complete, so it is lawful for him to have intercourse with her, due to the verse and because she is like her mother, and her entitlement to freedom does not exceed the entitlement of her mother, and that did not prevent having intercourse with her. As for the child of the mukatabah, she was attached to her mother, and it is prohibited to have intercourse with her mother, so her daughter is likewise, whereas the mother of this one is lawful for intercourse, so it is necessary to attach her to her mother. Ahmad's statement is interpreted as meaning that he had intercourse with her mother, [so she became prohibited for him due to that].
(1) The word "wa" (and) was omitted from the original and M. (2) It was reported by Imam Malik in the chapter "The man having intercourse with his slave woman if he performs tadbir for her," from the Book of the Mudabbar, Al-Muwatta 2/814; and by al-Bayhaqi in the chapter "Intercourse with the mudabbarah," from the Book of the Mudabbar, Al-Sunan al-Kubra 10/315; and by 'Abd al-Razzaq in the chapter "The man having intercourse with his mudabbarah," from the Book of the Mudabbar, Al-Musannaf 9/147. (3) Omitted from the original. (4) In the original and A: "al-tadbir." (5) Surah Al-Mu'minun, 6. (6) In M: "alayha" (on her). (7) Omitted from the original, A, and B.
