and it cannot
be granted
where the
property, or
any part o f
it, is held by
an abfent heir,
or his truftee,
or an infant.
T h e partition
inaybe ordered
although
one o f the rerequiring
parties be an
infant^ or, one
an infant
heir, and the
other a le gatee
»
If the land * , or a part of it, be in the poffeflion of the abfent
heir, or of his truftee, or in that of an infant heir, the partition muft
not be ordered, whether the heirs who are prefent produce the evidence
or not. This is approved} for the partition, in fuch a cafe,
would in fa£t be a decree of the Kazee againft an abfentee, or an infant,
divefting them of lomething they poflefs without any litigant
appearing on their behalf;— nor can the truftee of the abfentee ftand
as litigant on his behalf in any thing which may be attended with
lofs to him ;— -and it is illegal in the Kazee to pafs a decree without
all the litigants being prefent..
I f only one heir appear, a partition muft not be ordered, although
he produce the neceflary evidence, for it is requifite that both the litigants
be prefent; and one man cannot ftand as litigant on both fides.
It is otherwife where two appear,, as has been already fhewn.
If two heirs appear, one an adult, and the other an infant, the
Kazee muft appoint a guardian to the infant, and order the partition
as loon as evidence is produced; and in the lame manner, if an
adult heir appear, and alio a legatee of one third of the eftate, and they
demand a partition, and produce evidence (one to prove that he is
heir, and the other that he as legatee,) the Kazee muft order the
partition ; for in each of thefe cafes the litigating parties are both
fuppofed to appear,— the adult heir being litigant on the part of
the deceafed, and the legatee on his own behalf, and, in
the fame manner, the guardian being litigant on behalf of the infant,—
whence it may be faid that the infant (as it were) has appeared
in his own proper perfon as an adult, becaufe of the guardian
being his fubftitute.
* Arab. -Abhor; meaning any immoveable property; (and in this {bnfe is the term
land to be underftood throughout.)
C H A P .
C H A P . II.
Of Things which are fit Objects of Partition.
W h e r e the refpeclive lhare of each of the partners is capable of
being feparately converted to ufe, if any one of them demand a partition
it muft be granted; becaufe partition is an indifputable right,
when required in any article capable of partition, as has been before
explained. If, on the contrary, the lhare of one partner only be fit
for ufe, and not that of the other, becaufe of its being extremely
fmall, and the owner of the greater lhare demand a partition, the
Kazee muft grant i t ; but he muft not grant it at the requifition of
the other partner; for as the former can reap a benefit from his
lhare, his demand is worthy of regard ; but as the latter can have no
other motives for his requifition than malice, and a defire o f giving
trouble, it is not to be attended to. Khafifhol&s the reverie o f this
doctrine, “ becaufe (fays he) the great partner, in making his de-
“ mand, occafions an injury to another, whereas the fmall partner,
“ in making his demand, fubmits to his own injury.”— Hdkim Sha-
hced, on the other hand, mentions, in his abridgment, that “ the.
“ Kazee muft order the partition at the requeft of either of the part-
“ ners ; for the great partner is defirous of enjoying the ufe of his
“ lhare, and the fmall partner voluntarily fubmits to his own in-.
“ jury.” The firft o f thefe opinions, however, is the moft
authentic.
If the Chares of each o f the partners be fo very fmall that they
w.ould feparately be o f no ufe, the Kazee muft not order a partition
unlels both partners acquiefce ; for whenever partition is compul-
C 2 lively
An eftate
may be distributed.
on
'the requifition
o f any
one partner,
whofe lhare
feparately is
capable o f
being converted
to ufe.
I f the ihares
be feparately
ufelefs, the
aflent o f alf
the parties is
r equifitc.