Answered by: Mufti Eunus Ali
Question
A-Father (deceased-funds provider for the construction of the house)
B-Mother (deceased)
B1-Khala (deceased-house was under her name)
C-Son (now under his name, who is in Canada)
D-Daughter (in the USA)
E-Daughter (in Pakistan)
F-Daughter (in the USA)
G-Daughter (deceased, & having 2 sons & 1 daughter & husband remarried)
1. A & B expired during 1997 & 1998 but left no will for the distribution of their property left behind. All the properties which were under the names of A & B are under process as per the rule of the Shariah Court. All the matters are clear & well understood among brothers & sisters, & there appears to be no issue up to this stage. There is one house where the whole family was living since 1977 together. All the sisters (D, E, F & G) are married, & living in their houses with their families now. Son (C) was staying with his family & parents together with khala in that house, as khala never married. The house was under the name of Khala (B1), but actual funds were provided by A for the construction of the house earlier & later on provided by C for renovations, maintenance and other wear & tear of the house etc. – – – Khala expired in 2013. During 1996 A advised B1 in presence of C, to execute a Gift Deed in favour of C. B1 transferred the house under the name of C with her own wish & intention as a gift as advised by A, who was also one of the witnesses & actual owner of the house at that time. C took the complete physical possession of the house under his responsibility, as advised by A on countable times. He also gifted a plot to another sister & allocated defence savings certificates for the other remaining sisters during his lifetime. B1 was actually acting as an assistant of A, as she was performing all official work of this property through her signatures on behalf of A.
Now there is no dispute in anything regarding the property matters among the brother & sisters, but C is somewhat doubtful that sister/sisters are not so happy with this decision of A, B & B1 regarding the gift of the house? In your opinion & as per Shariah, what steps are to be taken by C that all will remain smooth & peaceful among the brother & sisters if something comes up in future?
2. Another matter is regarding some funds which A invested through the personal funds of C with the help of joint accounts of A, B & C when C was not present in the home country. Later on A informed C about such investment in the properties. When A was retired & was unable to pay the remaining balance of another property (land), A requested C to pay the remaining balance as & when convenient to C. Later on all the expenses incurred so far was under the responsibility of C, for all the wear & tear of the available properties (including the house, as stated in 1 above).
A. What is the Islamic ruling as per Shariah, for the above-stated points?
B. What will be the status of gifted properties, which he already gifted to his son & a daughter during his lifetime?
C. What will be the status of the funds, which were used by A & C for other properties & for other miscellaneous use from the joint accounts?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
- Firstly I would like to mention that the mere name on the lease of a property will not make that person the owner of the property from the Islamic point of view rather the owner will be the one who has contributed towards the purchasing of the property.[1]
As the funds have been provided by the father, from the Islamic point of view the house will belong to him even though his name may not be on the lease. [2]
As the house had been gifted to the brother through the suggestion of the father (Islamic owner) and the willingness of the Khala (legal owner), the brother will become the Islamic owner of the house in the eyes of Shariah.[3]
It should be noted that the house will no longer be included in the father or Khala’s estate which would be distributed amongst the heirs.
Being the owner of the house, the brother may share or distribute the house if and how he wishes.
- (A) There are two possible scenarios for the above:
- If the brother had intended to become a partner in the ownership of the property with the father at the time of agreeing to pay the rest of the balance of the property, he will become the owner of that percentage he had paid for. In this case that percentage which belongs to the brother will not be included in the father’s estate and will not be distributed with the rest of his wealth amongst his heirs.
- If his intention at the time agreeing to pay the rest of the balance was to gift the money to the father (by assisting him in clearing the remaining balance), he will not become a joint owner of the house with the father.
(B) In Shariah when an item is gifted to another, the ownership will be transferred to the one receiving the gift. The giver of the gift will have no right to make any claims on the item.[4]
Therefore any property gifted by the father to his children during his lifetime will remain as their property and will not be included in the estate of the father after his death.
(C) If the father or the son deposited money into the joint account with the intention of gifting the money to other, it will be permissible for the other to use it without consent.
If the person had deposited the money with the intention of storing the money and not sharing, he will remain the owner of the money and the other may not spend from it without prior consent.
Therefore if the son had deposited the money with the intention of gifting the money to the father which was then used to purchase a property, after the death of the father it will be included in his estate to be distributed amongst the heirs.
If the brother did not intend to gift it to the father however the father invested the money in a property and the son later agreed to it, the father will be considered a representative of the son and not a partner, because the money did not belong to him neither was it gifted to him. In this situation, the property will not be included in the estate of the father.
Only Allah knows best
Written by Mufti Eunus Ali
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[1] Fatawa Rahimiyyah, Volume 10, Page 296, Darul Isha’at
[2] The only exception to this would be that if the father had gifted it to the Khala in which case she would be the Islamic owner of the house. However as she willingly gifted the house to the brother, he will become the owner of the house.
[3] Raddul Muhtar, Volume 8, Page 488-450, Darul Kutubul Ilmiyyah
[4] Ibid