his planting, he may have recourse against his partner for half of the building and planting. This was mentioned by al-Sharif [Abu Ja'far] (29), and Abu al-Khattab narrated it from the Qadi. Abu Yusuf and Muhammad ibn al-Hasan said: He has no right of recourse against him for anything (30); for he built and planted by his own choice, so he may not claim back the loss of that from another, just as if he had built on his own property. Our view is that this partition is in the category of a sale; for two houses are not partitioned by compulsory partition [qisma al-ijbar] such that each one of them must be a share; rather, they are partitioned as such by mutual consent, so it takes the standing of a sale. If he had sold him the entire house, then it turned out to be rightfully claimed by another, he would have recourse against him for the entire building; thus, if he sold him half of it, he has recourse against him for half. Similarly, this is deduced for every partition that takes the standing of a sale, which is partition by mutual consent [qisma al-taradi], such as that which involves an exchange of compensation, or that which is not subject to compulsory partition due to harm therein, and the like. As for compulsory partition, if the share of one of them appears to be rightfully claimed after building and planting upon it, and the building is demolished and the planting is removed, then if we say: the partition is a sale, then the ruling is the same. But if we say: it is not a sale, he has no recourse; for his partner did not entice him, and no sale transferred to him from his side, rather he merely separated his right from his right, so he is not liable for what he spent on it. This is what the position of our companions entails.

Section: If the heirs partition the estate of the deceased, then a debt appears against it that cannot be satisfied except from what they partitioned, the partition is not void; for the attachment of debt to the estate does not prevent the validity of disposing of it, because it attached to it without their consent; it is thus similar to the attachment of a debt of injury to the corpus of the perpetrator. It differs from a pledge [rahn], for the right attached to it with the consent of its owner and by his choice. Based on this, it is said to the heirs: If you wish, you may pay off the debt while keeping the partition as it is, and if you refuse (34), the partition shall be rescinded, and the estate sold to settle the debt. If one of them responds [agrees] and the other refuses, the share of the refuser is sold alone, while the share of the responder remains as it is. If there is (35) a will