Dividing Properties

Answered according to Hanafi Fiqh by Askimam.org

 

Writing the question with the hope that Allah will save all concerned in this transaction from the hell fire.

This is a question related to inheritance.

Property is a site which has a 2 floor building. The property is in the name of my Father-in-law. The site was acquired by my father-in-law by selling the jewels of my late mother-in-law(may Allah grant her Jannat-ul-Firdous! Ameen!). Almost all the jewels were those gifted to my mother-in-law by her father. The building was constructed by selling a property which was gifted to my late mother-in-law by her father. My parents-in-law have 2 sons & 2 daughters. It was my mother-in-law’s wish that the property be divided equally between her children & husband after her demise. My father-in-law is too attached to the property & would not like to sell the property in his life time. My Father-in-law also wishes that the property be divided equally between the four children. To this effect, in the lifetime of my Mother-in-law, my father-in-law has made a will indicating equal share to all.

In the light of Islamic teachings, we would like to know if the above arrangement is permitted in Islam.

Answer

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

As-salāmu ‘alaykumwa-rahmatullāhiwa-barakātuh.

At the outset you should understand that upon the demise of your mother in-law the property should have been distributed amongst her heirs according to the Shariah Law of Inheritance and Succession. According to your explanation your mother in-law was survived by a husband, 2 sons and 2 daughters. 

Accordingly, your mother-in-laws estate will be distributed into 36 shares as follows:

Husband: 636

Son: 1036

Son: 1036

Daughter: 536

Daughter: 536

The heirs have a shareholding (as explained above) in the house that your farther in-law bought as he did so with the estate of your mother-in-law which should have been distributed.  

You also mentioned that it was your mother in-law and your father in-laws wish that the property be divided equally amongst the heirs (children). In principle, if the owner of an estate wishes to distribute hisher estate amongst their children during their life time then, it is preferable that the estate is divided equally, regardless of whether the children are male or female. [1]However, in the above scenario your mother in-laws estate was not divided during her life time and was used to purchase a property. Therefore it will not be divided equally and will be distributed as explained above.

The Sharee ruling regarding wills is simply that if the will is Shariah compliant then, it should be followed diligently and if not then, it should be discarded. If your father in-laws will is distributed during his life time then, he may distribute the estate amongst his children equally. However, if this is done after his death then, his estate should be divide according to the Shariah Laws of Inheritance and Succession due to which each son will receive 2 shares and each daughter will receive 1 share. However, if the brothers jointly agree to forfeit their rights and allow their sisters an equal share then, this too will be permissible. 

And Allah Ta’āla Knows Best

Ismail Dawoodjee

Student DarulIftaa
Zambia 

Checked and Approved by,
Mufti Ebrahim Desai.

«[1]اتقوا الله واعدلوا في أولادكم» فالعدل من حقوق الأولاد في العطايا والوقف عطية فيسوي بين الذكر والأنثى، لأنهم فسروا العدل في الأولاد بالتسوية في العطايا حال الحياة. وفي الخانية ولو وهب شيئا لأولاده في الصحة، وأراد تفضيل البعض على البعض روي عن أبي حنيفة لا بأس به إذا كان التفضيل لزيادة فضل في الدين وإن كانوا سواء يكره وروى المعلى عن أبي يوسف أنه لا بأس به إذا لم يقصد الإضرار وإلا سوى بينهم وعليه الفتوى(الرد المحتار ج4 ص444 سعيد)

فتاوى محمودية ج20 ص278 فاروقية

 

 

 

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