Division by shares (muqasama)

Muqasama is the division of a shared thing so that each partner takes his share. Jurists use the word in several chapters: a grandfather's share with the brothers in an estate, kharaj taken as a share of the produce, a partner's demand that common property be divided, and the picking of fruit and its division between the owner and the collector. ¹

Muqasama is broader than mahaya (sharing the use of a thing in turns) and muhasa (pro-rata division among creditors when assets fall short). Musharaka is joint ownership; muqasama is its opposite in meaning. ^{1 2}

The majority of Malikis, Shafi'is and Hanbalis, and the two companions of Abu Hanifa, let the grandfather inherit with full and consanguine brothers. He takes the better of a share in the division or a third of the estate when there is no fixed-share heir, and the better of a share in the division, a third of the remainder or a sixth of the estate when there is one. In the division he counts as one brother, the male taking twice the female's share. Abu Hanifa rejects this: the grandfather is like the father and excludes all brothers. Details appear in the chapter on inheritance. ²

Al-Kasani reports that when the imam takes a town and grants its people their lives, he may set on their land a share of the produce, a half, a third or a quarter, on the model of Khaybar. Its ruling follows that of the tithe, but it is placed in the position of kharaj. ^{2 3}

If one partner asks the other to divide common property and he refuses, the judge compels division once ownership is proven and the property can be divided and used separately. Details are in the chapter on division. ³

The Hanbalis allow picking fruit before it ripens for fear of drought or to improve the rest of the crop. Al-Qadi lets the collector choose between estimating the crop before harvest and taking the poor's share as a single palm with its fruit, harvesting and dividing by measure, or selling the fruit before or after picking and sharing the price. Abu Bakr holds zakat due on it dried. Details are in the chapter on zakat. ³