Section One
Real Estate and Fixtures

With respect to real estate and other immovable fixtures, it is permissible to divide them either by mutual agreement or by drawing lots, provided the resulting shares are equalised in value. The scholars are unanimously agreed on this principle, though they differ over the precise circumstances and conditions under which it applies.

A division is either of a single site or of several sites.

1. If the property lies in a single site, there is no disagreement about the permissibility of partitioning it when the parts can be made equal in quality and the usefulness of the property is not diminished by the partition; in such a case the partners may even be compelled to divide.

2. If, however, the division would leave the parties with portions that confer no benefit, the jurists diverge:
   • Mālik held that the property may still be divided at the request of any one partner, even if none of them ends up with anything useful—no more, for example, than the space of a single footprint. This view is shared only by Ibn Kinānah among his disciples, and it is likewise the position of Abū Ḥanīfah and al-Shāfiʿī. Their proof is the divine statement:
   “whether it be little or much—a prescribed share” (Q 4:7).

   • Ibn al-Qāsim ruled that division is not allowed unless every partner receives in his share something he can use without the partition itself impairing that benefit, although any fall in market value is not taken into consideration.

   • Ibn al-Mājishūn allowed partition once each partner obtains something from which he can benefit, even if the type or degree of benefit differs from what existed during joint ownership.

   • Muṭarrif said that if no partner’s portion contains anything useful, the property is not divided; but if some receive useful portions while others do not, the division proceeds and they are compelled to accept it, whether the request came from the holder of the smaller or the larger share. One opinion states that compulsion applies when the request is made by the owner of the smaller share but not when made by the owner of the larger; another opinion reverses this, though it is weak.

They also differed about property whose benefit changes to a different kind of benefit once divided, such as a public bath. Mālik—and Ashhab with him—held that it may be divided if either partner so demands. Ibn al-Qāsim ruled that it may not be divided, a view shared by al-Shāfiʿī.

Those who forbid division rely on the Prophet’s ﷺ saying: “No harm and no reciprocating harm.”

Those who allow it cite the verse, “whether it be little or much—a prescribed share” (Q 4:7).

A further proof for those who prohibit division is the ḥadīth of Jābir, from his father: “There is to be no taʿḍiyah (fragmentary partition) among the heirs except to the extent that the division can bear.”