What is the ruling when a previously agreed-upon division of jointly owned property reveals that a portion of one partner's share rightfully belongs to a third party?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
If a specified part of the divided property is found to belong to another party and that specified part falls within one partner's share, the division is voided. This is the position of Al-Shafi'i. The basis for this ruling is that the division lacked equity in the shares, rendering it null, similar to a situation where both parties knew of the superior claim beforehand. If the superior claim is equally distributed between the shares of both partners, the division is not voided because what remains for each partner after the rightful claim is still proportionate to their right, and the division fulfilled its purpose of separating each partner's right. However, if the superior claim causes greater harm to one partner's share, such as obstructing their path, water source, or place of ablution, the division is voided due to the lack of equitable value.
Supporting text
Abu Hanifa held that the division is not voided; rather, the partner whose share is affected by the superior claim has the option to either annul the division or retain the remainder of their share and seek recourse for the lost part, similar to finding a defect in what they received.