Q: Two brothers are partners in a property which generates monthly rentals. The one partner passed away recently (may Allah Ta’ala forgive him). Now that the one partner has passed away, does it mean that the living partner and the heirs of the deceased partner automatically become joint partners? How should the property actually be distributed now? Can the one party purchase the other 50% share from the other party? The other living partner (who is blind) wishes to give his 50% share in the property to his 3 daughters. Can he do this? If yes, does he require consent from the heirs of the marhoom partner? Also, how should he actually do this transfer? If he merely has a document drawn up wherein he willfully transfers ownership (gifts) his share to his daughters and has an independent person sign on his behalf or merely verbally mention this in the presence of perhaps 2 witnesses, will this be in order? The blind person also has a personal house (he is the sole owner) which he also wishes to gift to his 3 daughters. How should he actually complete the hiba (gifting) process, considering that the title deeds are also in his name? If he does not transfer the house onto their name but merely gifts it to them in the presence of witnesses and has it duly signed perhaps as well, will this be sufficient?
A:
1. With the passing away of one partner, the partnership automatically terminates. The share of the deceased partner will be included in his estate which will have to be distributed among his heirs according to the stipulated laws of inheritance. If the living partner and the heirs of the deceased partner mutually wish to enter into a new partnership, then they may do so. In this case the 50% rentals will be distributed among the heirs according to the stipulated laws of inheritance. If they do not wish to enter into a new partnership, then the building can be divided into two parts. Half the building will be owned by the living partner and the other half will be owned by the heirs of the deceased partner. Alternatively if one party is prepared to purchase the share of the other party, then with mutual agreement this will also be permissible.
2. As long as the above mentioned issues are not resolved, it will not be possible for the living partner to gift his share to his daughters. After his share is separated from the shares of the heirs of the deceased partner, then it would be permissible on condition that the gifting is done correctly.
And Allah Ta’ala (الله تعالى) knows best.
Answered by:
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)