Question:
First, I want to thank you for your precious time.
After my father’s death in 2010, we didn’t divide heirship. My mother was alive, and she became the sole owner of all property. We are total two brothers and two sisters.
My mother told one of my sisters about her will that she wrote, but after her death, both sisters didn’t find any written will. I want to ask you few questions regarding our situation. Kindly answer these according to Shariya law.
Thanks in advance.
Question 1: My mother once in her life told my sisters that she is doing hiba of all her gold jewelry to both of my sisters during a conference call. There was no other witness during the call nor we brothers were present in the call. My mother told her sister as well that all her gold jewelry is for her both daughters when she was alive. This was all verbal. It was not handed over to my sisters. After my mother’s death, both my sisters got the gold jewelry out of the locker and divided between them. We both brothers came to know about “hiba” after her death. We had no prior knowledge of this.
Does the jewelry belong to my sisters only or we all four siblings have a right to it ?
Question 2: My mother during her lifetime told my sisters that she had a bank locker, and all the contents of locker are for both my sisters. This was also said to my sisters only. No witness was present nor we brothers have any knowledge. Even we came to know about it after my mother’s death. But my sister divided the cash present in the locker into three equal parts (myself, sister 1 and sister 2). One brother was not (told?) about the cash and the distribution.
Will the cash and gold jewelry present in the locker belong to my sisters as I asked in first question or it will be considered as heirship ?
Question 3: If the jewelry mentioned in above two questions considered as heirship, do we brothers have to pay zakat for the time period back to our sisters on the jewelry kept by our sisters after mother’s death till today?
Question 4: My mother kept her money with one sister like 56,000 dirham and with other sister like 1150 pounds. After some time, she told them over the phone that the money is theirs. Even no witness on it, and both brothers came to know this after mother’s death.
Does all this money belong to my sisters as given by my mother?
Question 5: My father during his life gave loan of 900 Kuwaiti dinar to my brother. My mother and sister-in-law both were the witness for this loan. Will this money be included in heirship?
Question 6: When my father was alive, he gave me 150,000 Pak rupees to invest in stock exchange. We were both business partners for profit and loss. In 2005, Pakistan Stock Exchange crashed, and we lost the money, which my father knew about it. Nobody knows about this money except me and my father. There was not any witness present. After my mother’s death, my siblings came to know about it. Will this money be considered as heirship?
Answer:
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ʿalaykum wa-rahmatullāhi wa-barakātuh.
We are saddened to hear about the loss of your father and then your mother. We are equally saddened to hear about the division caused among siblings over their inheritance. The Sharī`ah stipulates quite clearly the division of inheritance and the rules surrounding inheritance and gifting (hibah). In doing so, there is little ambiguity that would lead to disagreements and fighting. Hence, deviation from or ignorance of the Sharī`ah is a cause for disagreements. We will begin by laying out some principles before answering your questions.
When it comes to inheritance, the individuals who have a right to it and their shares are explicitly stated by the Sharī`ah. This is their right given by Allah. Any deviation from it is oppression (ẓulm) and sinning, questionable on the day of Judgement, and punishable by Allah. At the moment of death, after burial expense and liabilities owing have been paid out, the deceased no longer owns any property, and his belongings are instantly the property of his inheritors. One may not withhold the rightful amount from the inheritors without their consent.
As such, at the time of your father’s death, his assets belonged to his inheritors including his children. His wife did not have the right to keep what is beyond her share without the consent of all the inheritors. Although, she kept his inheritance then, it was not her right, and the proper amount is still due to the inheritors. The inheritors may include others beyond just her children. This should be rectified immediately, and Allah’s forgiveness should be sought.
Transference of ownership of a gift does not take place until there is:
(1) an offering of the gift by the gifter and
(2) the giftee takes it into his possession.[1]
If an item was offered by the gifter and accepted verbally by the giftee, but not taken into her possession physically, the hibah has not taken place. Although having a witness to gifting is better, it is not a condition for the validity of the gift.
Answer 1: Your mother gifted all her jewelry to your sisters. However, they did not take possession of it before her death. As mentioned, without having taken possession, the gift was not complete.[2] Upon your mother’s death, her jewelry became a part of her estate and belonged to her inheritors according to the ratio stipulated in the Sharī`ah. The sisters do not have a right to what was offered as a gift prior.
Answer 2: Your mother gifted the contents of a locker to your sisters. Likewise, they did not take possession of it before her death. At the time of her death, the contents came into the ownership of all the inheritors according to the ratio stipulated in the Sharī`ah.
Answer 3: Even though your sisters unlawfully kept your mother’s jewelry, the jewelry still belonged to you. As such, zakat is due on you for the previous years once it comes into your possession. [3] If the matter remains unresolved to the level where you lose all hope of acquiring this jewelry, then you may write it off as irrecoverable, and no zakat will be due on you.
Answer 4: Your sisters had your mother’s money in their possession. Your mother then gifted them that money. Since the money was already in their possession and she offered the gift, the two conditions of gifting have taken place.[4] The money rightfully came into the possession of your sisters. No one else may make a claim to it.
Answer 5: Your father gave a loan to your brother. Loans remain in the ownership of the lender even while in the possession of the lendee. Unless forgiven, this loan remained a debt on your brother to repay to your father. At the time of his death, the debt was transferred into the ownership of the inheritors. Your brother became the owner of his own share from his father’s inheritance, but he still owed the remainder debt to your father’s other inheritors.
Answer 6: Your father gave you money to invest. It appears you acted as his agent in a muḍarabah agreement.[5] In this type of agreement, a silent partner gives the active partner money to invest. They then share in profit or loss according to their agreement. If the money is lost without negligence (i.e. you did your due diligence in investing and taking cure of the securities), the active partner does not owe the silent partner anything.[6] This money is not part of the inheritance. The inheritors do not have a claim to it.
Allah and His Messenger ﷺ have stipulated the rights of individuals in these situations to prevent disagreement and injustice. It is incumbent on the parties involved to fulfill the rights of one another. This is even more so when the other parties are relatives, especially siblings. The passing of your parents should not have become a cause for division, but rather a cause for coming together. We ask Allah ta`āla to join your hearts and fulfill one another’s rights.
And Allah Ta’āla Knows Best
Mufti Faisal bin Abdul Hameed al-Mahmudi (S1)
شرح مختصر الطحاوي، أحمد بن علي أبو بكر الرازي الجصاص الحنفي، دار البشائر الإسلامية، ج 4، ص 20
(ولا تجوز الهبة في الأعيان إلا مقبوضة.)
وذلك لما روي عن النبي عليه الصلاة والسلام أنه قال: “يقول ابن آدم مالي مالي .. وما لك من مالك إلا ما أكلت فأفنيت، أو لبست فأبليت، أو تصدقت فأمضيت”. فشرط في صحة الصدقة إمضاءها، ومنع صحتها بالقول دون إمضائها، وهو الإقباض والتسليم، فدل أنها لا تصح إلا مقبوضة.
اللباب في شرح الكتاب، عبد الغني بن طالب بن حمادة بن إبراهيم الغنيمي الدمشقي الميداني الحنفي، المكتبة العلمية، ج 2، ص 171
ثم لا ينفذ ملك الموهوب له (وتتم) الهبة له إلا (بالقبض) الكامل الممكن في الموهوب، فالقبض الكامل في المنقول ما يناسبه
الفتاوى الهندية، دار الفكر، ج 4، ص 377
ولا يتم حكم الهبة إلا مقبوضة
العناية شرح الهداية، دار الفكر، ج9، ص 19
وتصح بالإيجاب والقبول والقبض) وهذا بخلاف البيع من جهة العاقدين، أما من جهة الواهب فلأن الإيجاب كاف، ولهذا لو حلف على أنه يهب عبده لفلان فوهب ولم يقبل بر في يمينه، بخلاف البيع، وأما من جهة الموهوب له فلأن الملك لا يثبت بالقبول بدون القبض بخلاف البيع
البناية شرح الهداية، دار الكتب العلمية، ج 5، ص 231
(أن الهبة من شرطها القبض بالنص) ش: وهو قوله – عليه السلام -: «لا تصح الهبة إلا مقبوضة»
فتاوى محمودية، دار الافتاء جامعة فاروقية كراجي، ج 16، ص 469-473
كتاب مجلة الأحكام العدلية، نور محمد، كارخانه تجارتِ كتب، آرام باغ، كراتشي، ج 1، ص 163
(المادة 849) إذا توفي الواهب أو الموهوب له قبل القبض تبطل الهبة.
رد المحتار على الدر المختار، دار الفكر، ج 2، ص 266
(ومغصوب لا بينة عليه) فلو له بينة تجب لما مضى إلا في غصب السائمة فلا تجب، وإن كان الغاصب مقرا كما في الخانية
(قوله: فلو له بينة تجب لما مضى) أي تجب الزكاة بعد قبضه من الغاصب لما مضى من السنين قال ح: وينبغي أن يجري هنا ما يأتي مصححا عن محمد من أنه لا زكاة فيه لأن البينة قد لا تقبل فيه. اهـ. قال ط: والظاهر على القول بالوجوب أن حكمه حكم الدين القوي
الفتاوى الهندية، دار الفكر، ج 1، ص 171
رجل أدى زكاة غيره عن مال ذلك الغير فأجازه المالك فإن كان المال قائما في يد الفقير جاز، وإلا فلا كذا في السراجية.
فتاوى رحيمية، دار الشاعت، ج 7، ص 143
كتاب مجلة الأحكام العدلية، نور محمد، كارخانه تجارتِ كتب، آرام باغ، كراتشي، ج 1، ص 163
(المادة 846) من وهب ماله الذي هو في يد آخر له تتم الهبة ولا حاجة إلى القبض والتسليم مرة أخرى.
العناية شرح الهداية، دار الفكر، ج8، ص 446
لأن المضارب يسير في الأرض غالبا طلبا للربح قال الله تعالى {وآخرون يضربون في الأرض يبتغون من فضل الله} [المزمل: 20] وفي الاصطلاح: دفع المال إلى من يتصرف فيه ليكون الربح بينهما على ما شرطا
مختصر القدوري في الفقه الحنفي، : دار الكتب العلمية الطبعة: الأولى، ص 14
وما هلك من مال المضاربة فهو من الربح دون رأس المال فإن زاد الهالك على الربح فلا ضمان على المضارب فيه