poffeffion moveable property remains is refponfible for it; whereas
(according to Haneefa) , he is not fo with regard to «»moveable property.
It is alfo otherwife with refped! to landed property acquired by
purchafe; becaufe an article fold is no longer accounted the property
o f the feller, although it ftill remain undivided ; and thé partition of
it, therefore, cannot be regarded as a decree of the Kdzee, palled
again!! an abfent perfon, by which his right is terminated.
nor in cafe
o f a partition
being demanded
without
the parties
fpecify-
ing the manner
in which
the joint property
was
acquired.
If the joint owners of a property requeft a partition of it, without
fpecifying whether it was acquired by inheritance, or by purchafe,
or by any other means, the Kâzee may order the partition, this being,
in fad!, not a decree again!! another perfon, fince no ôther is acknowledged
by them.’ T h e author of this work fays, that this adjudication
is to be found in the Kitâb al Kiffmat*.— It is mentioned in the
Jama Sagheer that when two men apply for a partition of lands which
they prove by witneffes to be in their poffeflion, the Kâzee muf! not
order the partition until they alfo prove, by evidence, that the lands
are their property ; for otherwife it is poffible that they may belong
to another perfon. Some fay that this is agreeable to the opinion of
Haneefa alone :— but others aver that it is agreeable to the opinion of
all the learned,; and this is approved, fince it is unneceffary to order
the partition of landed property in order to preferve it. Befides, the;
right of property being the ground on which partition is made, it
cannot take place until that right be eflablifhed by evidence.
A partition W h e r e two heirs appear, and produce evidence to prove the
grantecfon death o f their anceftor, and the number of his heirs,„and the houfe
the requifi- or other inheritance is in their polTeflion, but one of the heirs is abtion
and tef- . . . r x . . - r i i *
timony o f lent,— in this cale the Kazee may order a partition, i f the heirs who
but an°agent’ attend require it, appointing an agent to take poffeflion of the portion
or guardian 0f j-jjg abfentee; or if, under the fame circumftances, one of the
unuft be ap- ,
* A colleftion of laws compiled by Mohammed, the difciple of Haneefa.
heirs
heirs be an infant, the Kdzee may order a partition, appointing a
guardian to take poffeflion of his portion ;— becaufe, in fo doing, the
■ interef! of the infant or abfentee is promoted.— (But here likewife
the produdtion of evidence is indilpenfable,'according to Haneefa, in
-oppofition to the opinion of the two difciples, as before Hated.) It
would be otherwife i f they had become proprietors of the houfe by
purchafe ; for in that cafe no partition could be made in the abfence
of any of the partners. This diftmdtion between the cafe of property
acquired by inheritance and property acquired by purchafe is made on
the following grounds.— An heir is matter of'his anceftor’S eftate as
his fubftitute, infomuch that he has the power of returning (on discovering
a defect) any thing which his anceftor may have bought,
or, in like manner, he may be compelled (on the difeovery of a defect)
to take back any thing which his anceftor may haye fold; and
he is likewife fubjedt to become deceived* in confequence o f the pur-
chafes o f his anceftor;— (that-is to fay, if the anceftor purejiafe a female
Have and die, and the heir afterwards have a fon by her, and the Have
then prove the property of another perfen, the fon born o f her is
free, but the heir muft pay the value o f him to the proprietor of the
Have, and he may again recover it from the perfon who fold the
Have, in the fame manner as i f he were the anceftor who made the
purchafe.)- One of the heirs, therefore, ftands as.litigant on behalf
o f the anceftor, and the other is litigant on his own behalf; and the
partition, -under fuch circumftances, is in fad! a .decree pafled in the
prefence of both the parties. The purchafer, on the,contrary, becomes
the proprietor of the thing bought by a recent title of property,
and not in the manner o f a fubftitute, infomuch that he cannot, on
difcQv.ering a. defedt, return the Article to the perfon from whom .the
late feller had before bought it. Hence neither of the two prefent
purchafers can ftand as litigant on behalf of an abfentee. Thus
there is an evident difference between the two cafes.
* Arab. Magroor. .The meaning of this term has been fully explained ellewhere.
Vpi. IV., C If
pointed to the
charge o f the
fiiares of the
abfent or infant
heirs ;