Under what conditions is the partition (Qisma) of an endowed property permissible when separating shares?
General Chapter
Al-Mughni
Book of Endowments (Awqaf) and Donations
Primary text
The permissibility of partitioning an endowment to distinguish it from other shares depends on whether the partition constitutes a sale or a mere separation of right. The correct view is that it is a separation of right. Partition is permissible if no part of the endowment is taken back ('radd') by the endowment beneficiaries. Partition is also permissible if the 'radd' comes from the owners of the non-endowed share, as this is considered purchasing a portion of the non-endowed asset. However, if the 'radd' comes from the owner of the endowed share, partition is impermissible because it involves selling part of the endowment, and selling an endowment is not permitted.
Supporting text
If the shared portion is an endowment for two categories and their families wish to partition it, the ruling depends on the principles mentioned above. Partition involving any form of 'radd' is never permissible in such a case. If a partition is validly established without 'radd' or detriment, and one partner or the guardian of the endowment requests it, the other partner must comply, as such partition is obligatory.