not on the one who has not folicited it, becaufeof its being advantageous
to the one,- but not to the other.
In the diftri- W hen feveral co-partners appear before the Kdzee, and reprefent
reditaments, that a tenement or piece of ground which is in their pofleflion has
muft'previ-te devolved to them as the heirs of a certain perfon, the Kdzee muft not
0U'flj,thfceI"" make a partition of the houfe or ground until they have proved by
cumftances: witneffes the death of the perfon, and the number of his heirs.
This ;is according to Haneefa. The two difciples fay that if they all
concur, the Kdzee may make the partition, taking care, however, to
infertinthe Kijfmat Ndmma, or deed of partition, that it was made in
but not i f confequence of their declarations. If, on the contrary, the joint prothe
property 1 7 J . J 1
confift o f perty be moveables and not lands or tenements, and the parties reprefent
" ’ that it is their inheritance, the Kdzee may, on their reprefentation,
ofrpropertyfe order the partition; or, if the joint property be lands or tenements,
acquired by an(j they reprefent that they acquired it by purchafe, the Kdzee may
order a partition. T h e argument of the two difciples is, that poflef-
fion is an apparent proof of property, and the concurrent declaration
of all the parties with refpeft to their feveral claims is a proof o f their
veracity. Belides, there is no perfon who cither difputes or denies
their allegations'; and where there is no denier the l aw requires no
evidence. Hence the Kdzee muft order the partition in the inftanee
above-mentioned, as well as in cafes which relate to moveable property
acquired by inheritance, or landed property acquired by pur-
chafe. It is requifite, however, that he fpecify, in the deed of partition,
that it has been made -in confequence o f their declarations, in
order that his decree may extend only to thofe who have attended,
and not to others who may (perhaps) afterwards appear. T h e argument
of Haneefa is, that the order which the Kdzee gives for the partition
is infaft a decree againft the defunft:, by which his right is
terminated; for until a partition take place, the hereditaments are
ftill confidered as his eftate, infomuch that if any increafe be produced
upon it, fuch increafe is fubjeft: to the will of the deceafed de-
6 dared
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C h a p . I . P A R T I T I O N . i f
dared in his teftament, or is appropriated' to the payment of his debts,
neither of which could be the cafe after partition has been made.
T h e partition, therefore, being in faft a decree of the Kdzee affecting
the defunft, the concurrence o f a part of the claimants to the fuits of
the others is not admitted as an argument of fufficient wéight; and
hence they muft fupport their claims againft the defunft by evidence;
in which cafe a part of the heirs are confidered as litigants on behalf
o f the defunft.
O b j e c t io n .— A part of the heirs cannot be confidered as litigants
on behalf of the defunft, fince each individual acknowledges
the claims of the others, sind a man w ho acknowledges another’s
claim cannot be regarded as his opponent.
R e p l y .— A part o f the'heirs may be confidered as litigants on
behalf of the defunft, although. they do acknowledge the claims o f
the others, their acknowledgment being of no weight;— in the fame
manner as where a man fues for a debt againft an eftate, and an heir
or executor acknowledges his claim, in which cafe fuch acknowledgment,
as being to the detriment of the others, is not fufficient, but
the claimant muft produce evidence before the Kdzee in his ftiit, even-
againft that heir or executor, before he can eftablifh his claim againft
the eftate in general to the prejudice of the whole of the heirs. T h é
acknowledgment of the heir or executor being therefore of no
weight, he may, with propriety, be confidered as an opponent or
litigant.
— What is here mentioned is the law with refpeft to immoveable property*.
It is Qtherwife with refpeft: to moveable property ■ }■ ; became
that requires care in keeping, and there is an advantage arifing from
the immediate partition of i t ; whereas »«moveable property, being
by its nature fafe, requires; no care:— befides, the perfon in whofe
* Arab. A kkarmeaning houfes, tenements, Scc. fuch as is termed, in ouri *w5 reat
property.
t Arab. Manhol•, comprehending every fpecies of perfoml property.
poffeffioru