Is it permissible for me to take any legal action to get the property’s upper portion vacated?

Answered according to Hanafi Fiqh by Askimam.org

 

My mother transferred a commercial property, which was leased out to her from my late father, to me in her life a year ago, and she is still alive alhamdolillah and lives with me. However, one of my elder brothers  is unhappy with this decsion and he has the possession of upper portion of the preopty for past several years and is now unwilling to vacate it despite my mother and my isistence to vacate. He is adamant that he also has the right/share in the property, and it was wrong for my mom to transfer the property to me. Whereas, my mom had another property, which she inherited from her father, which she transferred to my this brother,  and he then sold it out and took the money himself and spent it on his accord without the discretion of my mother.

Keeping in view above circumstances, is it permissble for me to take any legal action to get the property’s upper portion vacated from my elder brother since my mom has transferred it to me in her life. Please enlighten/advise me in the light of Shariah.

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

In order to answer your query, we require clarification on the following:

(1) You mentioned that your late father ‘leased’ the property to your mother. Who was the owner of the actual property? Who is the owner now? If it is your mother, how did she gain ownership of it? Did she gain it through inheritance or some other means?

(2) If the property was simply leased to her by “transferring it to you”, do you mean that she transferred the lease to you? Or does she own the property now and she transferred ownership to you?

(3) How did the upper portion of the property come into the possession of your brother? Was it leased to him? If yes, by who? If no, then does he own it? Did your late father give it to him, and how?

You may forward your reply to the following email: [email protected]

And Allah Ta’āla Knows Best

Bilal Mohammad

Student Darul Iftaa
New Jersey, USA 

Checked and Approved by,
Mufti Ebrahim Desai.

www.daruliftaa.net

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