Fatwa No : 83873
Sons demanding a larger share of inheritance from their father.

Sons demanding a larger share of inheritance from their father.

Respected Mufti Sahib, Assalamu Alaikum wa Rahmatullahi wa Barakatuh. I present the following question regarding inheritance. My father had a plot of land measuring 200 square yards allotted in my mother’s name. The cost of this land was paid with the cooperation of my father and my brothers. During the construction of the house, my father was employed in Saudi Arabia for a long period, and whatever he earned, he sent to Pakistan. In this way, my brothers also contributed towards the construction, and thus the house was completed. We are five brothers and three sisters. After the house was built, all of us brothers have been living in it for the past 25 years, without paying any rent. Recently, three of my brothers raised the issue that, since they had contributed some amount to the construction of the house, they should be given a greater share in this property according to their financial contribution. About 15 years ago, my eldest brother already took 1 million rupees under this claim (as part of what he had contributed to the construction). What is the ruling of the respected scholars regarding this? My elder brothers also contributed to the wedding expenses of my younger sister. My father says that since my sons have been living in this house throughout their lives, this demand for extra share is not appropriate. Two of my elder brothers have had my mother sign over the property documents into their names. Alhamdulillah, both my father and mother are alive, and they want everyone to get an equal share according to Shariah and the law, without any injustice. However, my brothers wish to distribute the inheritance according to their own will, as the property is now in their names. What is the ruling of the respected scholars on this matter?
In light of the above details, please inform us of the Shariah rulings so that the family does not fall into confusion. We would be most grateful. JazakAllahu Khayran.
Additional Clarification: The brothers who contributed to the construction of the house did so during my father’s lifetime, and at that time, there was no agreement or specification that it was a loan to be repaid.

الجوابُ حامِدا ًو مُصلیِّا ً

If the brothers of the questioner, who contributed towards the construction of the house and the marriage expenses of their sister, did not make any agreement with their father at the time of contribution that the amount was a loan or was to be returned, as is also apparent from the question, then such expenses were, in reality, an act of voluntary assistance (tabarru‘) and kindness from these two sons towards their father. Therefore, in return for this favour, it is not permissible for them to demand a greater share from their other brothers at the time of property distribution, nor is it permissible for them to demand back that amount. They must refrain from doing so. However, if the father, out of his own will, wishes to give something to these sons in recognition of their service, he is entitled to do so, but it is not obligatory upon him. Those brothers who, through deceit, had the said property transferred into their own names and are now blackmailing the other siblings, must immediately desist from such conduct. Otherwise, the brothers and sisters have the right to take legal action in order to protect their rights.
During the lifetime of the parents, without their consent and permission, the children have no right to distribute the parents’ property, nor to demand such distribution. However, if the father himself wishes to distribute his property among his children, then it should be made clear that, during his lifetime and before falling into a terminal illness (marad al-mawt), every person is the sole owner of his property, and its distribution is not obligatory upon him. If he does choose to distribute it, then according to Shariah, this is termed hiba (gift), and in such a case, equality among the children is preferable. If the questioner’s father wishes to distribute his wealth and property among his children, the best method is for him to keep aside, according to a careful estimation, whatever he wishes for his own remaining lifetime, and then distribute the rest equally among all his children, granting each one full legal possession of their share. This will make the hiba valid and complete according to Shariah, as merely writing their names on paper is not sufficient. It is better that in such a gift or distribution, all children be treated equally, as they are all his offspring, giving no one more or less without a valid Shariah reason. However, if he wishes to give a little extra to a child due to service, need, or piety, he is permitted to do so. But he must not, without a Shariah-based reason, deprive any heir of his share, as that is sinful. As for the amount taken by the questioner’s elder brother, if the father willingly gave it to him in recognition of his services, then it is permissible and valid. Otherwise, the complete details should be written and the question sent again, so that a Shariah ruling may be given after careful consideration.

مأخَذُ الفَتوی

كما في الدر المختار: وهل إرث الحي من الحي أم من الميت؟ المعتمد: الثاني شرح وهبانية اھ (6/ 758)۔
و في درر الحكام شرح مجلة الأحكام: المادة ( 1398 ) - إذا عمل أحد في صنعته مع ابنه الذي في عياله فكافة الكسب لذلك الشخص ويعد ولده معينا اھ (3/ 444)۔
و في حاشية ابن عابدين (رد المحتار): (قوله والإعارة) (إلی قوله) شراه فشهد رجل على ذلك وختم، فهو ليس بتسليم يريد به أنه إذا شهد بالشراء أي كتب الشهادة في صك الشهادة، وختم على صك الشهادة ثم ادعاه صح دعواه، ولم تكن كتابة الشهادة إقرارا بأنه للبائع، وهذا لأن الإنسان يبيع مال غيره كمال نفسه، والشهادة بالبيع لا تدل على صحته جامع الفصولين في الرابع عشر اھ (5/ 596)۔
و في الدر المختار: و) شرائط صحتها (في الموهوب أن يكون مقبوضا غير مشاع مميزا غير مشغول) كما سيتضح. (5/ 688)۔
كما في الدر المختار: (وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) والأصل أن الموهوب إن مشغولا بملك الواهب منع تمامها، (5/ 690)۔
وفيه ايضاً : و في الخانية لا بأس بتفضيل بعض الأولاد في المحبة لأنها عمل القلب، وكذا في العطايا إن لم يقصد به الإضرار، وإن قصده فسوى بينهم يعطي البنت كالابن عند الثاني وعليه الفتوى اھ (5/ 696)۔