If one co-owner benefits from partition while the other is harmed, is the reluctant party compelled?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
If one co-owner benefits from partition while the other is harmed (e.g., in a house where one has a one-third share and the other two-thirds), and the benefited party seeks partition, the harmed party is not compelled. This is the apparent view of Ahmad, Ibn Abi Layla, and Abu Thawr, based on the principle that partition causing harm is not compulsory, similar to mutually harmful division.
Supporting text
The scholars of Al-Qadi, Al-Shafi'i, and the people of Iraq hold that the other party is compelled because the requesting party seeks to isolate their share without being harmed by its segregation, which must be granted as if both benefited. However, the primary view holds that compulsion is rejected because the partition causes harm and loss of property.