separately, according to Abū Ḥanīfah. Abū Yūsuf and Muḥammad maintain that, if the more beneficial course for the partners is to mix portions of some houses with portions of others, the surveyor may divide them in that way. If the joint property consists of a house together with farmland, or a house together with a shop, each unit is divided on its own.
The surveyor should draw a plan of the property to be divided, equalize the shares, take precise measurements, appraise the buildings, and detach every portion from the remainder with its own access road and water-right, so that no part of one person’s allotment remains dependent on that of another. He then labels one share “first,” the next “second,” the third “third,” and so on. Lots are then cast: the name that comes out first receives the first share, the name that comes out second receives the second share, and likewise for the rest.
Silver and gold coins are not included in the division unless the partners all agree.
If, after division, one partner retains a watercourse or right-of-way across another’s allotment and this was not stipulated in the deed of division, then, if it is possible to redirect that path or watercourse away from the other’s land, he may not use the other’s share for passage or drainage. If diversion is impossible, the division is annulled.
When there is a lower storey without an upper, an upper storey without a lower, and a lower storey that does have an upper, each is separately valued and the division is made according to those values; no other method is considered.
If the partners in the division disagree and the two surveyors testify, their testimony is accepted.
If one partner claims an error, asserting that property belonging to his share is in the hand of the other, while he has already had witnesses attest that he received full delivery, he is not believed unless he brings evidence. If he first said, “I have received my full right,” and later says, “I took only part of it,” the statement of his opponent is accepted on oath. If he says, “My share reaches up to such-and-such a point, which you have not delivered to me,” and he did not have witnesses attest to his receipt and his partner denies the claim, they both swear an oath and the division is dissolved.
If a third party successfully proves title to a specific part of one partner’s share, the division, according to Abū Ḥanīfah, is not voided; instead, the affected partner recovers the corresponding proportion from his fellow’s share. Abū Yūsuf, however, holds that the division is dissolved.