My grandfather were two brothers only. They did not divide the property among their inheritors while they were alive. My grandfather’s elder brother had only one daughter i.e. my paternal aunt and my grandfather had two sons, in which my father is the elder one. My aunt was married and has never returned since 1975. We don’t know if she is still alive or not but while she was leaving she had given the power of attorney to my father. Legally he is the sole hier of all her property or wealth. For the last 30 years my uncle and his family has not been living with us nor taking care of our ancestral property. They don’t live with us at the ancestral property since it is located in a very remote area far far away (1500 km) for his house.
For more than 40 years my father has been looking after the whole property with all of its related difficulties including many legal cases that he had to take care of. Even during the court cases my uncle didn’t help physically or monetarily and he never chipped in for any repairs or construction. We have invested hundreds of thousands of rupees for the past 40 years and my uncle has not paid a penny. Now he claims half of the property belongs to him.
Please help us how the property should be divided given these circumstances according to the Islamic Shari‘ah.
الجواب وباللہ التوفیق
1- Regardless of how much your father has taken care of this house and regardless of the money he had to invest on maintaining this house and regardless of how careless the other brother has been regarding the above aspects, both brothers will have a share in this house.
2- Secondly, your father should have documented the nature of the renovations or maintenance and the nature of expenditure (whether loan or ehsan) and discussed it with the other brother to get his agreement, before taking those actions. However it seems that this agreement could not be arranged. In this situation, the ruling is that if in addition to maintaining the existing structure your father also performed extensions to it, then the extensions will be considered your father’s property. However, the other brother will still have his share in the land (i.e. he has a valid right to demand the area with extensions, if he chooses). In the case of division of the house, either that portion of the land which is still not occupied with any extensions should be given to the other brother and your father can keep the portion on which he has performed the extensions, or request the other brother to pay your father for the portion with extensions (which your father’s brother does not have to agree with) and then equally divide the money once the sale of the whole house takes place.
The expenses your father had to incur to perform maintenance on the existing structure, if they were performed with the brother’s agreement then your father has a right to demand the money from him. If however, the maintenance was performed without the brother’s agreement, it will be impermissible for your father to demand for the expenses from him. It is a moral obligation on your father’s brother however, to pay your father back for the necessary maintenance your father kept on performing.
Note: It should be noted that as per the situation described in the question, apparently this property belonged to your grandfather and his elder brother. From that perspective, the division will take place among the elder daughter of your grandfather, your father and your uncle and any other inheritors who are alive at this time. The share of the elder brother of your grandfather will be given to the phoopi (paternal aunt) whereas the share of your grandfather will be divided equally between your father and your uncle. Since the issue of maintenance and extensions to ths house has been described above, therefore that should be considered as the guideline for the next steps.
الحمام إذا احتاج إلی مرمۃ وأنفق أحد الشریکین من مالہ، أجاب: لا یکون متبرعاً ویرجع بقیمۃ البناء بقدر حصتہ … وجعل الفتویٰ علیہ۔ (شامي / قبیل مطلب في الحائط إذا خرب وطلب أحد الشریکین الخ ۶؍۵۱۳ زکریا)أما إذا سکن أحد الشریکین مدۃ في الدار بدون إذن الآخر فیعد ساکنًا في ملک نفسہ فمن ثم لا تلزمہ الأجرۃ لأجل حصۃ شریکہ۔ (شرح المجلۃ لسلیم رستم باز ۱؍۶۰۲ رقم: ۱۰۷۵)ولو بنیٰ فالصحیح أنہ یرجع … ثم في کل موضع لم یکن الباني متبرعًا کان لہ منع صاحبہ من الانتفاع إلیٰ أن یرد علیہ ما أنفق أو قیمۃ البناء۔ (شامي ۶؍۵۱۵ زکریا)
سئل فیما اذابنیٰ قصراً بمالہ بنفسہ فی دار مشترکۃ بینہ وبیں اخوتہ بدون اذنہم فہل یکون البناء ملکاً لہٗ الجواب نعم واذا بنیٰ فی الارض المشترکۃ بغیر اذن الشریک لہٗ ان ینقض بناء ہ ذکرہ فی التاتارخانیۃ من متفرقات القسمۃ۱ھ تنقیح الفتاویٰ الحامدیۃ ،ج۱؍ص ۱۰۰)
فقط واللہ اعلم بالصواب