The Book of the Judiciary

Division (of Shared Properties)

اْلقِسْمَةِ

Glossary

Division (of Shared Properties)

There are two types:
First, a division that can be imposed: Those properties that can be divided without any harm (to any partner) ¹⁷²⁶ or need for compensation (of any partner). If one of two partners requests that the property be divided, but the other refuses, the judge will force him to accept it as long as there is proof of their shared ownership. ¹⁷²⁷ If their ownership is established through acknowledgment, then the second one will not be forced to accept the division. If they both agree to divide the property in this case, it will be divided between them, but it will be documented that the division was based on their mutual acknowledgment of shared ownership, not on proof of it. ¹⁷²⁸

وَهِيَ نَوْعَانِ:
قِسْمَةُ إِجْبَارٍ، وَهِيَ: قِسْمَةُ مَا يُمْكِنُ قِسْمَتُهُ مِنْ غَيْرِ ضَرَرٍ، وَلاَ رَدِّ عِوَضٍ إِذَا طَلَبَ أَحَدُ الشَّرِيْكَيْنِ قَسْمَهُ، فَأَبَى اْلآخَرُ، أَجْبَرَهُ اْلحَاكِمُ عَلَيْهِ إِذَا ثَبَتَ عِنْدَهُ مِلْكُهُمَا بِبَيِّنَةٍ، فَإِنْ أَقَرَّ بِهِ، لَمْ يُجْبِرِ الْمُمْتَنِعَ عَلَيْهِ، وَإِنْ طَلَبَاهَا فِيْ هَذِهِ اْلحَالِ، قُسِمَتْ بَيْنَهُمَا، وَأَثْبَتَ فِيْ اْلقَضِيَّةِ أَنَّ قَسْمَهُ كَانَ عَنْ إِقْرَارِهِمَا، لاَ بِبَيِّنَةٍ.

1726. For example, if two men inherit a piece of land that has a well on one side, where the land is worth 100 and the water well is worth 200, then whoever takes the well will need to pay 50 to the one who gets the rest of the land (to make the value of each inheritance the same – that is, 150). In this case, the transaction is a sale that must be concluded with mutual agreement.

If the land is worth 1000 and the well is worth 500, then each should receive a value of 750; one of them may take the well and 1/4 of the land (500+250), while the other takes the rest of the land (worth 750). This would be enforceable by (A) + (+H, +s), if there is no harm to either one, but not enforceable by (-S).

1727. Based on that, there are three conditions for the division to be enforceable by the court:
. There is no harm for either partner.

. There is no need to compensate either partner with something that is not part of the property being divided.

. The ownership of the parties is established via admissible proofs, not merely by their mutual acknowledgment.

1728. (-S): It will not be divided, due to the possibility that it may be owned (totally or partially) by a third party.

Second, a division by mutual agreement: The division associated with harm to either party such that they cannot benefit from their share in the way it was intended, ¹⁷²⁹ or it cannot be divided evenly without one of the partners having to pay a (separate) compensation to the other. ¹⁷³⁰ In this case, the division cannot be imposed on them. ¹⁷³¹

والثَّاني: قِسْمَةُ التَّرَاضِيْ، وَهِيَ قِسْمَةُ مَا فِيْهِ ضَرَرٌ؛ بِأَنْ لاَ يَنْتَفِعَ أَحَدُهُمَا بِنَصِيْبِهِ فِيْمَا هُوَ لَهُ، أَوْ لاَ يُمْكِنُ تَعْدِيْلُهُ، إِلاَّ بِرَدِّ عِوَضٍ مِنْ أَحَدِهِمَا، فَلاَ إِجْبَارَ فِيْهَا.

Division is (simply) a sorting out of rights, in which there is no right to preemption and no option to rescind. It is permissible to divide items that are measurable by volume on the basis of weight instead, and to divide those measurable by weight on the basis of volume instead. Also, it is permissible to divide fruits on the basis of estimation (of the yield before it is actually harvested). ¹⁷³²

وَاْلقِسْمَةُ إِفْرَازُ حَقٍّ لاَ يُسْتَحَقُّ بِهَا شُفْعَةٌ، وَلاَ يَثْبُتُ فِيْهَا خِيَارٌ. وَتَجُوْزُ فِيْ اْلمَكِيْلِ وَزْنًا، وَفِيْ الْمَوْزُوْنِ كَيْلاً، وَفِيْ الثِّمَارِ خَرْصًا.

It is permissible to divide the waqf as long as there

وَتَجُوْزُ قِسْمَةُ اْلوَقْفِ إِذَا

1729. If, for example, land and a factory are divided so that one individual takes part of the factory, leaving the other individual unable to use it as it was intended (as a factory).

1730. (A): Using the land with a well as an example, if the party that will not get the well can be made whole from the land itself, the division can be imposed, but if he will have to be paid a separate compensation, such as 50 dirhams or the like, then it cannot be imposed.

1731. In other words, the judge cannot proceed with the division unless all parties agree.

1732. This is all to say that this division of property is not a sales transaction. In contrast, if it were a sale, the right to preemption and the option of return would be established; moreover, in a sales transaction, conjecture is avoided in order to avoid usury, and items measured by weight must be measured by weight, not volume. (Refer to the Chapter on Usury.) This text refers to the case when the division can be made evenly without any separate compensation needed. In the example of the land with the well, there will be a sales transaction if the party who does not get the well is made whole by a separate compensation (50 dirhams). If he will be made whole by getting a larger piece of the land to be divided, then (A) does not consider it a sale; it is still a sorting out (unscrambling) of rights.

will be no need for compensation. If some of the property is privately owned and some is waqf, and the private owner will need to pay compensation, then the division is not permissible, but if the waqf manager will have to pay the compensation, it is permissible. ¹⁷³³

إِذَا لَمْ يَكُنْ فِيْهَا رَدُّ عِوَضٍ، فَإِنْ كَانَ بَعْضُهُ طِلْقًا، وَبَعْضُهُ وَقْفًا، وَفِيْهَا رَدُّ عِوَضٍ مِنْ صَاحِبِ الطِّلْقِ لَمْ يَجُزْ ، وإنْ كَانَ من رَبِّ الوَقْفِ جَازَ.

After adjusting the shares (to make them equitable), he will then cast lots (between the partners). He whose lot comes out indicating entitlement to a particular share will have it, and it will be binding.

وَإِذَا عُدِّلَتِ اْلأَجْزَاءُ، أُقرِعَ عَلَيْهَا، فَمَنْ خَرَجَ سَهْمُهُ عَلىٰ شَيْءٍ، صَارَ لَهُ، وَلَزِمَ بِذٰلِكَ.

The people doing the dividing (working for) the authorities must be trustworthy, and the scribes should also be.

وَيَجِبُ أَنْ قَاسِمَ اْلحَاكِمِ عَدْلاً، وَكَذٰلِكَ كَاتِبُهُ.

1733. The need for compensation means that in order for the waqf to stay whole after the division, the other partner (whether it is another waqf or a private entity) will need to compensate it. In the example of the land with the well, if the land is worth 100 and the well is worth 200, then the one getting the well will need to pay the other party 50 dirhams to make them even (with 150 each). If this land was originally shared by a waqf and a private owner, the waqf must get the well and compensate the private owner (if they agree). The opposite is not permissible because the private owner would be purchasing part of the waqf for 50 dirhams, and a waqf may not be sold. If the land was shared by two waqfs, the division would not be possible either, because neither of them may be partially sold.

Division (of Shared Properties)

( Page : no 176)

The Book of the Judiciary

Division (of Shared Properties)

اْلقِسْمَةِ

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

Division (of Shared Properties)