(reftoring the concern to the Bate in which it previoufly flood,) and
then to demand a new partition;— or, i f he chufe, he may let thé
partition hold good, and exaót from his partner a compenfation for
the half o f his fhare which he has loft, and which is equivalent to
one fourth o f the fhare in that partner’s poffefiion. . According to
Aboo Toofaf, the partition is in this cafe null, fmce by an undefined
proportion of one of their fhares proving the right of another perfon,
a third partner is ■ created, without whofe concurrence the partition
is void;— in the fame manner as where an undefined part of the
whole article proves the right of another perfon. T h e reafon of this
is, that where an undefined proportion of one of their fhares becomes
the right of another, one of the objedls of partition (namely, feparation)
is deftroyed, fince the fhare of ,one >of the partners by that
means becomes in itfelf a matter of partnerfhip; and he mu ft have
récourfe to the fhare of the other for an undefined part, equal to that
proportion of his right of which he has been deprived. It is. other-
wife in the preceding cafe, where a particular and defined part of one
of their fhares proves the right of another ; for in that cafe the object
of partition (namely, feparation) ftill exifls with .refpedt to the
remainder. The argument of Haneefa and Mohammed .is, that the
oBjed of partition,, namely feparation, is not defeated by an undefined
proportion of one of the partner’s fhares becoming the right of another
perfon. Hence a partition of this nature, originally made, would be
valid ;— as where, for inllance, the firft half of a houfe is jointly
held by two partners, Zeyd and Amroo, and by a third perfon, named
Khalid, one half thereof by Khdlid, and the other half .betwixt Zeyd
and Amr'dó-, the fecond half being I'.cld jointly between Zeyd'e.wA
Amroo, Khalid holding no fhare therein ;— in which cafe Zeyd and Am-1
roo might lawfully make a partition betwixt themfelves, Zdyd getting
the whole of their joint fhafé in the firft half of the houfe, and One-
fourth of the fecond half; and Amroo getting, three fourths of the,
fecond half; and it is in the'fame manner ultimately valid; the: cafe
becoming fimilar to that in which a - defined proportion óf one of the-
6 fhares
fhares proves the right of another. ‘ It-is otherwife where an undefined
proportion of the whole houfe, including both fhares, proves ^the right
of another;; becaufe, in this latter cafe, fuppofing the partition to be
Valid, an' injury is fuftained by the third perfon, whofe right was
manifefted after the partition, fince he muft then accept his proportion,
not in a compaQ manner, but difperfed, from the fhares o f each
of the others ; whereas, in the former cafe, (hi which an undefined
proportion of one of the fhares proves the right of another,) he fuffers
no injury. Thus there is an* evident difference between the two
cafes.’ In fhort, the nature of the cafe in queftion is this,, that one
of two partners takes one third of a houfe, and the other takes the
remaining two thirds, the value of the firft third being, equal to that
of the. other two thirds ; and afterwards one half of the. firft third
proveSj.thc right of'another perfon;— in which cafe, (according to
Haneefa and Mohammed,) the firft partner has it in his option to annul.
the partition ; for if it continue valid, his fhare is defective, becaufe'
of its being difperfed, part in i'a cfirfi third of the houfe, and part in.
the two loft thirds ;— or, if he pieafe, he may, take one fourth of the.
fhare which fell to the fecond partner; for if the whole of his [the
firft partner’ s] fhare had.proved the right of a third perfon, he would
have been entitlçd to take one half of the fecond partner’s fhare ;
wherefore (arguing of a part from the whole) fince one h a lf o f his
fhare proved the right of the third perfon, he is entitled to take one.
half of air half o f the fecond partner’s fhare, which is equal to one
fourth.
I f the partner to whofe lot the fir fi half falls fliould f e ll a
moiety of it, and afterwards the other moiety prove the right of another,
he,is ftill entitled to one fourth of the fecond half in the pof-
feffion o f his co-partner, for the reafons before afligned ; and his
option of annulling the partition drops, becaufe o f his having fold a
part of his fhare. This.is according to Haneefa and Mohammed. Aboo .
Toofaf, mäintaitis that thefica n d half, in thepoffeffion of the co-partner,
J J