Is partition involving compensation (Radd) subject to compulsion?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
Partition that requires compensation to balance shares, making it a transaction (mu'awadah), is not subject to compulsory partition, as no one can be forced into a transaction. This includes cases where two houses are partitioned by making each house a share, or where partition causes demonstrable harm. Such partitions are considered partitions of mutual consent (Qismat al-Tiradhi) and are permissible based on the consent of the parties.
Supporting text
If a partition involves compensation, it is a sale. If this occurs regarding endowment property (Waqf), it is invalid because selling the endowment is impermissible. If part is endowment and part is free property, and the compensation comes from the owner of the free property, it is invalid as they are buying part of the endowment. If the compensation comes from the beneficiary of the endowment, it is valid as they are buying part of the free property.