Can a judge partition property shared between two partners without established proof of their ownership?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
The judge must grant the request of two partners to partition any shared property, whether it is a quarter share or otherwise, even if their ownership has not been formally proven before the judge. This is based on the principle that possession (al-yad) indicates ownership when there is no claimant against them, establishing apparent ownership which allows for disposition. This is further supported by the Prophet's action of partitioning Khaybar and the general consensus on the permissibility of partition due to public necessity.
Supporting text
Abu Hanifa stipulates that if the property pertains to inheritance, partition is delayed until proof of death and inheritors is established for real estate, to safeguard the deceased's estate, but partition is allowed for non-real estate inheritance or non-inheritance property. The apparent view of Al-Shafi'i suggests no partition occurs unless ownership is proven, fearing subsequent challenges to the ruling.