Partition cannot
be made
o f a bath,
mill, or well,
without the
confent o f all
the parties.
Partition o f
boufes and tenements.
but that ‘when the grains are fmall, the difference being inconftder-
able, the jewels may be divided. Others, again, maintain that no
jewels, whether of fmall or large grains, can be divided, becaufe the
difference betwixt them, and the difficulty of afcertaining their value,
is greater than in the cafe o f {laves, infomuch that if a man marry a
woman, and in general terms ftipulate to give pearls or rubies as her
dower, fuch ftipulation is invalid ;— whereas, if he ftipulate, in general
terms, to give Jlaves, it is valid. The Kdzee, therefore, is not
to exert his authority in making .a partition of jewels.
T he Kdzee muff not order the partition of a joint mill, bath, or well,
unlefs with the concurrence of all the partners ; (and fuch alfo is the
rule with refpeff to a wall which Bands betwixt two houfes ;) for if,
in thefe cafes, a partition were to take place, it would be injurious to
all parties, as the individual ffiare of each would then be ufelefs.
I t is proper to remark, that a Angle roofed place, furrounded
with walls, with a door or entry, is termed a Bait, or room. A
Manzil, or tenement, on the contrary, is a place compofed o f different
rooms, a roofed court*, and a kitchen, fuch as a man may refide in
with his family. A Ddr, or houfe, on the other hand, is a place
confifting of various rooms or tenements, with an open court. A tenement
is therefore fuperior to a room and inferior to a houfe. Thefe
are the definitions of Shims-al-Ayma in his book on Shaffa. In this
work, whenever the general word Khanna (houfe] is ufed, we mean
fuch an one as we have now defcribed, uiider the denomination of
D ar, excepting only where we mention an under houfe in contra-
diftinction to an upper, houfe, and then we only mean a Bait or a
Manzil.
* Arab. Sahn; meaning the interior Square o f a dwelling, common to all the family,
and which, in large edifices, is open, bu t-in fmall ones is covered in.
I f there be feveral houfes held in partnerffiip or coparcenary in
one city, each houfe mult be feparately divided according to Haneefa.
T h e two difciples fay, that if it be expedient for the partners the
whole of the houfes muff be united in one general partition, and not
divided feparately. All the houfes, therefore, muft be, confidered
merely as one houfe, conftfting of various apartments, and all the
fhares of each partner muff confequently concentre in one of the
houfes, fo that it may be his entirely., T h e fame difference of opinion
alfo fubftfts regarding the cafe of lands held in partnerffiip or
coparcenary, and difperfed in different fituations.. The argument of
the two difciples is, that all the houfes are, oh the one hand, of one
fpecies with refpedt to name, appearance, and original delign as, on
the other hand, they are of different fpecies with regard to their parti,
cular qualities, and their commodioufnefs for habitation, which depends,
on fize, and fo forth whence it muft be left to the Kdzee to determine
their different degrees o f fupeyiority.— The argument of Haneefa is,
that regard ffiould be paid only to what they are. in reality, with re-
fpeff to their qualities; and that in them they may greatly differ on.
account of the difference o f the cities, lanes, or neighbourhood, in,
which they are fttuated, and their proximity to or diftance from water
or a mofque ; and that therefore it is impoffible t'o obferve- an equality-
in the partition without dividing each houfe feparately;— whence it:
is that a man cannot appoint an agent to- purohafe a houfe in general-
terms ;•— and fo likewife, that if a man marry,, affigning as a dower
“ a houfe f (in general terms) his mention of the houfe is invalid,-^-in
the fame manner as holds where a man affigns “ cloths” (generally)*
as a dower, or appoints an agent to purchafe “ cloths,”— It is other-
wife with refpedt to a Angle houfe-, held in partnerffiip or coparcenary,
compofed of different rooms; for as, in fuch. cafe, to divide each
room amongft the co-partners would be produftive of inconv.eniency.
to all, the- whole houfe is therefore divided at once,.
W hen two houfes, held in partnerffiip, are fttuated in different
towns, we learn from Hillal that it is the concurrent opinion of,
2 Haneefa.