My late father transferred the property ownership to my mother in his lifetime while he was safe and sound in year 2005. We all 5 brothers including myself were happy with the decision of my father. My parents allowed my one brother the possession of the upper portion of the property for his use and livelihood, in their lifetime, when everything was smooth without any legal documentation.
However, my parents developed some issues with him and they separated from him as he had no respect for any body including parents and would do loggerhead with them quite often. My parents then moved to me. My father expired, and my mother used means to vacate the property possession from my this brother but in vain. She then transferred the ownership to me in 2013, also per my late father’s will because I was/am weak financially, and I now want to take legal action to get it vacated from my brother and get the possession myself & don’t have my own home, since now I own it per law.
My brother objects that he also has had share in the property, and it was illegal/wrong for my mother to transfer the ownership to me and is now unwilling to vacate the possession. Whereas, my mom had another property, which she inherited from her father, whose ownership 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. My mother trusted him and he betrayed her trust that is why she is unhappy with him and says that this brother doesn’t have any right in property.
My mother lives with me happily alhamdolillah and I am affording her expenses wholeheartedly from more than past 5 years. Kindly advise in the light of Shariah if it is all right for me to use any means to vacate the property upper portion from my this brother. Jazakallah.
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
We understood from your query that your father transferred the ownership of a property to your mother making her the sole owner of the property.[1] A portion of this property was simply “lent” to your brother so he may have a place to live and stay. This property was later transferred to you making you the sole owner of the property as your brother was never made owner of his portion. Now you wish for your brother to vacate his portion so you may have complete control over the property.
Islam emphasizes greatly on securing family ties and keeping great bonds of kinship with one another. Judging by the current situation, it is clear that having your brother vacate the upper portion will lead to a break in family ties and increase the hardships in your life. If possible, we greatly advise to gift this portion to your brother and form a peaceful agreement. We further advise you refer to a person that may share some influence over your brother. He may be able to persuade your brother in realizing his mistakes which may lead him to rectify his character and conduct with you.
If all attempts fail in securing ties with your brother and he has no legal possession over the house, then only should you take up any means to have your brother vacate the upper portion of the house. It must be kept in mind that this must be the last and final resort and you should refrain from taking such action to the best of your ability.
And Allah Ta’āla Knows Best
AbdulMannan Nizami
Student Darul Iftaa
Chicago, IL, USA
Checked and Approved by,
Mufti Ebrahim Desai.
[1] It is clear from this statement that your father’s will to transfer the property under your name had no effect since he was never the owner of the property at the time of writing his will. However, the transfer was still valid simply because the person to do the transfer was actually the owner of the property i.e. your mother.