Chapter on Partition (Qisma)

A partition may be carried out by the partners themselves, by an agent whom they appoint, or by an agent appointed by the imam. The imam’s appointee must be a free, upright male who is skilled in land-surveying and arithmetic. Where valuation is required, two surveyors are obligatory; if no valuation is involved, one is sufficient—though another opinion still calls for two.

The imam may invest the surveyor with the authority of a judge for the purpose of valuation; in that case he proceeds with the assistance of two upright witnesses and completes the division. The imam should pay the salary of his appointee from the public treasury; if this is not possible, the fee is charged to the partners. Should they engage him on a fee basis and each partner stipulate a specific sum, that sum becomes binding; otherwise the fee is apportioned in proportion to their shares—although one opinion holds that it should be divided equally per capita.

As for items whose partition would cause serious harm—such as a single jewel, two fine garments, or a pair of leather socks (khuff)—the judge is not obliged to grant division even if all the partners request it. He does not, however, prevent them from dividing the property themselves, provided its usefulness is not destroyed, as would happen if a sword were sawn in two. Where division would eliminate the intended benefit altogether—such as a small bathhouse or a small mill—the sounder view is that the judge does not oblige division at the request of a partner. If it is feasible to convert the bathhouse into two functional bathhouses, the request is granted.

Suppose one partner owns one-tenth of a house that is itself unfit for habitation while the remainder belongs to another; according to the sound view, the owner of the one-tenth can be compelled at the request of the majority owner, but not the reverse.

Property whose partition does not entail great harm may be divided in several ways.

1. Division by parts: for example, two identical objects, a house of uniform construction, or land whose plots are similar. A partner who refuses is compelled. The shares are balanced by volume, weight, or surface measurement according to the number of shares when they are equal, and the name of each partner is written on a separate slip.