We are two brothers and four sisters. In 2001 my father gifted my elder brother a vacant site, and the property was registered in my brother’s name. All of us are aware of this. My mother expired in 2011, and my father died in 2012, intestate, leaving behind a residential property. Recently all of us got together and decided to divide the residential property – my elder brother suggested that the property be divided into 8 shares, and the 4 sisters will be given 1 share each, and 2 brothers will take 2 shares each. Can my brother claim 2 shares in the property, as my father has already given him a site in 2001? My brother says that as per Shariah, the house left behind by my father is ancestral property, and as my father has not left a will, and not declared that elder son will not get a share in the house, after his death, he is entitled to his legitimate share in the house as per Shariah. Is my elder brother justified in claiming a share in the property?

Answered according to Hanafi Fiqh by Darulifta-Deoband.org

بسم الله الرحمن الرحيم

(Fatwa: 667/568/H=05/1435)

It was not good on behalf of your father to give his elder son alone in his lifetime and deprive the other children. However, now the ruling is that if your father gave the site in the complete possession of his elder son then he became its owner. Now the ruling of inheritance shall not be issued in it rather the elder son shall remain its owner. However the ruling of inheritance shall be applicable in the property which the father left behind at the time of his death. Thus your brother is correct. The property of your father shall be divided into eight shares out of which 2-2 shares shall go to each son and each daughter shall get 1-1 share.

Allah knows Best!

Darul Ifta,
Darul Uloom Deoband

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