Section

The second category is compelled partition. It applies wherever the division causes no harm and requires no financial compensation. Such a partition is allowed with every commodity measured by volume or weight, as well as with a large house or a spacious tract of land, with any trees included as appurtenances. Because this kind of division is not deemed a sale, the judge may compel a reluctant partner to accept it.

The partners may conduct the division themselves or appoint a partitioner to act for them. That partitioner must be Muslim, upright, legally competent, and knowledgeable about the rules of partition. His fee is shared by the partners in proportion to their respective shares.

If they divide by drawing lots, the procedure is valid and the partition becomes binding as soon as the lots are drawn, even if one share turns out to be inferior or disadvantageous. Should one partner, without resorting to lots, invite the other to choose a share and both consent, the partition becomes binding once they part company.

If a hidden defect later appears in one partner’s share, he may choose either to rescind the partition or to keep his share while taking arsh (monetary compensation for the defect). If he suffers ghabn fāḥish (gross inequity), the partition is void.

If each partner claims that a particular item belongs to his share, both must swear an oath and the partition is rescinded. Likewise, if the sole access road falls within one partner’s portion and the other is left without a right of way, the partition is invalid.