been lost, he re-enters with him as a partner in whatever remains in his possession; but if it has perished, he may recover from him one-half the value of what is in his hand, and if the portion successfully claimed is small, he recovers one-half the value of that specific item.
Muhammad said: If what lies in the hand of either party is successfully claimed, a partition concluded by drawing lots is annulled, for it has become clear that the division was not equitable—precisely as Ibn al-Mājishūn ruled in the case of a defect.
Should a right attach to the estate after partition—such as the sudden appearance of a debt, the enforcement of a bequest, or the emergence of an heir—the Mālikī jurists differ.
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If a debt arises, the well-known view in the school—reported from Ibn al-Qāsim—is that the partition is rescinded unless the heirs unanimously agree to pay the debt out of their own funds, whether or not their allotted shares are still in their possession and whether those shares have perished through a calamity from heaven or remain intact.
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Another opinion holds that the partition is rescinded only for the heir whose share is still in his possession and has not been lost through a heavenly cause; the one whose share has perished in such a way has no recourse against the other heirs for what remains with them after the debt has been settled.
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A third position insists that the partition must in every case be rescinded, in deference to the right of God, Exalted is He, in view of His words: “after fulfilling any bequest that may have been made or any debt” (Q 4:12).
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A fourth view states that the partition is rescinded except with respect to the heir who has contributed from his share an amount intended to discharge the debt.
The same rulings apply when the right of a legatee surfaces against the heirs.
As for an heir who appears after the division but before any of the original heirs’ shares have been lost: the partition is not rescinded; the newcomer takes a proportional amount from each heir if the property is measured by volume or by weight. If, however, the estate consists of livestock or merchandise, the partition is annulled. Concerning liability for property that perishes while in an heir’s possession without his fault, one opinion makes him liable, while another absolves him.