Fatwa No : 83890
The ruling on division in the case of joint construction.

The ruling on division in the case of joint construction.

Respected Mufti Sahib, Assalamu Alaikum, Our father passed away in 1991, leaving behind one shop and one house for his widow and ten children. About ten years ago, the shop was sold for 3.6 million, and according to the Shariah ruling, the shares were distributed among the widow and all the children. We are ten siblings, five brothers and five sisters. At that time, the share of a son came to 400,000 and that of a daughter came to 200,000. The five sisters were given their shares, and the two younger brothers were given their shares as well. Now three brothers remained. We three brothers are married. Our mother placed a condition for the three brothers. The condition was that you will not be given your share of money, meaning you will not receive the amount. Our house was single-storey on 120 square yards. Mother said that the house will be built with your share of money—the first floor, second floor, and third floor. When the house is built, you will move into it. Upon the strong insistence of our mother, we had to accept her condition. At that time, no formal agreement was made that this money would be a loan or a voluntary contribution. However, our mother had said that you should construct the house, and the money you put in will be returned to you. The two younger brothers who received their shares invested them in business. We constructed the house. But if at that time we had also bought some property with our share, today it would have been of good value. Now the matter is that, at our mother’s instruction, the house was built and we three brothers also shifted there. Mother had said that these upper floors belong to your children. For example: this floor belongs to the son of Brother Nadeem, this floor belongs to the daughter of Brother Naeem, and this floor belongs to the son of Brother Khalid.
One year ago, our mother passed away. Now the house has to be sold. In the single-storey house, there are shares of the ten brothers and sisters, whose current value is 6 million, while the value of the entire building is 10 million. We wish to know whether in the amount that we spent, the three brothers have a share, or do all the brothers and sisters have a share in it? While at that time, all the sisters and brothers had received their shares. We did not spend our money by choice, but at mother’s insistence. Or is it that only in the single-storey house the three brothers have a share, and the value of the upper houses is 4 million, which will be divided among the three brothers, and the single-storey house worth 6 million, how will it be divided? Respected Mufti Sahib, this is an important matter. Please explain in detail so that no sister or brother is hurt, and so that the share of every son and daughter may be clear. Another matter is that five years ago, the two younger brothers spent 500,000 rupees on the lower house for flooring, painting, and other works. How should this money that they spent be accounted for? The two younger brothers, who renovated the lower house which is part of the inheritance, neither took permission from the other co-heirs nor clarified whether the money they spent was a loan upon the other brothers and sisters or a voluntary contribution. So, will seven brothers and sisters have a share, or do they have a share in the lower house? Because in the share of the three brothers, the seven brothers and sisters have no connection.
Note: The five sisters say that when mother had asked you to build the house, at that time we had already received our shares, so we have no share in the three upper floors, our share is only in the single-storey lower house. We do not want anything from the upper floors, because when we received our shares at that time, we also benefitted.
Note: Now, since our mother is no longer alive, we three brothers do not want her to face any difficulty in answering before Allah for the decision she made at that time.
Note: Also, the two brothers who had received their shares, and who did not spend anything on the construction of the upper floors, their objection is that the inheritance will be divided according to the whole building, not just the ground floor.
Note: How will the value of the ground floor be determined, according to the market value of the area, or according to any Shari principle?

الجوابُ حامِدا ًو مُصلیِّا ً

It should be made clear that a Mufti does not possess knowledge of the unseen; he is bound to give answers according to the question presented. The responsibility for whether the question is based on truth or falsehood lies upon the questioner.
With this preface, it is evident that the late mother’s statement “You should construct the house, and the money you spend will be returned to you” shows that she was the head of the household and wished, during her lifetime, for her children to have a constructed home and to remain together. It was on her instructions that the children spent the money, with the understanding that it would be returned later. This indicates that the money was given as a loan, and the constructed floors were jointly owned. Therefore, the mother did not make those three children the separate owners and possessors of the individual floors.
Furthermore, transferring those floors to the names of the sons’ children after construction is, in Shariah, considered a gift (hiba). However, since ownership and possession were never handed over to the recipients, the gift was not completed. Thus, those three floors did not become the property of the grandsons and granddaughter.
Accordingly, since the said house is joint property, its market value will be assessed. From that, the expenses incurred on the additional floors will be reimbursed to the said brothers, and the remaining value will be combined with the rest of the estate and distributed among all the heirs according to their respective Shari shares of inheritance.

مأخَذُ الفَتوی

کما في الفتاوى الهندية: ومنها أن يكون الموهوب مقبوضا حتى لا يثبت الملك للموهوب له قبل القبض اھ (4/ 374)۔
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)۔
و في شرح المجلة: واعلم ان المراد بالقبض الذي تتم به الهبة هو القبض الکامل وھو فی المنقول ما یناسبه، فقبض مفتاح الدار قبض لها، والقبض الکامل .......... حتى يقع القبض على الموهوب بالاصالة من غیر ان یکون .......... ، وفيما لاتحتمل القسمة يتبعية الكل اھ ( ج : ٣: ٣٤٥)۔