curred, fuch a complaint cannot be heard. If, however, the partition
was made by the order of the Kdzee, and extreme fraud be
alleged, the complaint muft be heard, as the liability ©f the. Kdzee'
authority depends on juftice.
Sim hid to I f a houfe be divided betwixt two partners, each receiving a part,.
111» and afterwards one o f them claim a room in the poffeffion of the-
toufe, after other, alleging, that “ it is one of the things which ought to have-
parution* tt fa}[en t0 gjm jn COnfequence of the partition,” arid the other
deny this,— in this cafe, as the plaintiff complains of ufurpation, it is
requifite that he bring proper evidence; and if both bring evidence,
that adduced on the part of the plaintiff, who is net in poffeffion,,
mull be admitted in preference to that of the other; for it is a maxim
of the law that the evidence on the fide of the party who is out o f
poffeffion is preferable to that on the fide of him who is in poffeffion.
If the complaint above-mentioned be previous to an avowal o f
the plaintiff’s having ever acquired poffeffion, both parties mull be*
required to fwear, and the partition muff be annulled, and performed
anew. In the fame manner, alfo, if two partners differ regarding-
their boundaries, the one alleging that “ a certain boundary belongs.
Iff to. him, but has fallen into the poffeffion of the other,” and the
other alleging the fame thing regarding another boundary, and both,
produce evidence, the Kdzee muff decree, in favour of each, that
boundary which is in the poffeffion- o f the other. I f only one produce
evidence,, the Kdzee muff pafs a decree only in his favour; but
i f neither of them produce evidence, they muft both be required to.
fwear, in the fame manner as in cafos of fale.
S ECT I O Ni.
S E C T I O N .
O f the Laws which prevail in a Claim o f Right *.
If a houfe (for inftance) held in partnerfhip be divided, and afterwards
an undefined part of the whole, (fuch as a h a lf or a th ir ty
prove the right of another, the partition, according to all our doctors,
is null, and muft be made anew.
I f a particular and defined part o f what has fallen to one o f the
partners, in confequence o f partition fhould prove the right of another
perfon, the partition is valid, according to all our doctors, and
becomes not void with refpedt to what remains after the right of the
other perfon has been feparated:— but the party from whofe fhare
that right is taken has it in his option either to diflolve the partition,
(thereby reftoring the property to the ftate in which it flood previous
to the partition) and then to demand a new one,— or, if he chufe,
he may let the partition hold good, and exaft from his partner’ s
fhare a compenfation for that part of which he has been deprived by
its proving the right o f another.
If, after partition, an undefined part of the fhare of one o f the
partners (fuch as an h a f~), prove the right of another perfon, the
partition is valid with refpeft to the remainder, and does not become
void according to Haneefa and Mohammed; but the partner upon whofe
fhare the claim operates has it in his option to annul the partition;
* Arab. Iflihkai; meaning a claim fet up to the fubjea of a deed or contrafl, by Come
perfon not concerned in <uch deed or contrail:.
£ Z
In a cafe o f
claim fet up
to an indefi>
nite part, after
partition,
it muft be dif-
folved and
made-anew.
I f a definite
part be claimed,
after partition,
it muft
becompenfat-
edforfromthe
lhares o f the
other partners,
or, the
partition muft
be diflblved
and executed
anew;
and lb like-
wife, i f an
undefined part
be Claimed.
(reftorin;