Who Owns a Guava Tree on Jointly Owned Land

Question

An inherited house was divided between two full brothers, say Zayd and Bakr. Before this division, Zayd had, out of his own liking, planted a guava tree in the said house and tended it; it grew big and bore fruit. But when the division took place, the tree went into Bakr’s share. Now the tree, together with its roots, is on Bakr’s land, while some of its branches, despite a wall having been raised, hang over into Zayd’s share.

Answer

When, by mutual settlement or by an official division, the guava tree came into the other brother’s share and both agreed to that division, it now belongs to the one into whose share it came; and it is not permissible to pick guavas even from those of its branches that are on the side of the planter’s house, unless he too consents.

Source: Fatawa Mahmudiyya

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