Book of Partition (Kitāb al-Qisma)
The point of departure for this subject is the Almighty’s words:
"When the relatives are present at the division …" (Qur’an 4:8),
and His words:
"… whether it be little or much—a prescribed share." (Qur’an 4:7),
as well as the statement of the Messenger of Allah—may Allah bless him and grant him peace:
“Any house divided in the pre-Islamic era remains upon its pre-Islamic division, and any house reached by Islam that has not yet been divided is to be divided according to the rule of Islam.”
Inquiry in this book concerns three matters: the person who effects the division, the property to be divided, and the act of division itself. Discussion of division is arranged under several chapters:
Chapter One: the various kinds of division.
Chapter Two: specifying, for each kind, the properties that admit of division and those that do not, together with the manner of division and its conditions in cases that do admit it.
Chapter Three: the legal rulings that follow from division.
[Chapter One: Kinds of Division]
Chapter One deals with the kinds of division. Consideration of division is first divided into two broad categories:
- Division of the very corpus of property; and
- Division of the usufruct of that corpus.
Section One of this chapter
With regard to division of the corpus that is neither measured by volume nor by weight, it falls, in general, into three types:
- Division by lot after appraisal and equalisation;
- Division by mutual consent after appraisal and equalisation; and
- Division by mutual consent without appraisal or equalisation.
As for property that is measured or weighed, it is divided by measure or by weight.
Section Two
Corporeal property (al-raqāb) itself is divided into three classes:
- Property that is neither movable nor transferable—namely, real estate and fixtures;
- Property that is movable and transferable, which itself comprises two kinds:
a) what is neither measured nor weighed, such as livestock and movable goods, and
b) what is measured or weighed.
Accordingly, this chapter contains three sections:
First: real estate;
Second: movable goods; and
Third: property measured by volume or by weight.