Fatwa No : 84109
The ruling regarding some heirs creating obstacles in the sale of a jointly owned house

The ruling regarding some heirs creating obstacles in the sale of a jointly owned house

What do the respected scholars say regarding the following issue that we purchased a house on installments. The installments were paid by four brothers, while our other four brothers did not pay anything, as at that time they were not working. After purchasing the house, we registered it under our mother’s name and formally handed over full ownership to her. Since the installments were paid by us four brothers, our mother verbally declared to all the brothers that the house belonged to these four. The remaining four brothers, with their consent, renounced their shares, and they wrote this on an affidavit and signed it. However, the complete legal procedure to transfer the house to the names of these four brothers was not carried out, though whatever proceedings were done were completed in the presence of witnesses. Now, the other four brothers are claiming their share in this house. According to Shariah, are they entitled to a share or not?
Some of the brothers do not wish to live in this house, as it has become too small for them and living there is difficult. They also do not have enough money to purchase a house of their own. In this regard, the question is: if some brothers do not agree to sell the house and refuse to allow the sale, are they acting rightfully in Shariah, or not? Because some of the brothers want to sell the house, but two brothers refuse to sell.
Is it necessary in Shariah that all the brothers give their consent in order for the house to be sold? If one brother demands his share, is it obligatory on the others to give him his due portion? And if they cannot give it, should the house then be sold? According to Shariah, how many brothers are entitled to a share in this house, and what is the exact proportion of their shares?
Note: This house was originally a single-storey building, then later it was made into a double-storey house, and in this later construction, most of the expenses were endured by Syed Usman.

الجوابُ حامِدا ًو مُصلیِّا ً

The act of the brothers jointly purchasing the said house and then giving it to their mother was undoubtedly valid, and it was a gesture of generosity and kindness towards their mother, for which they will be rewarded. However, after that, when the late mother did not separate and hand over ownership and possession of each son’s individual share, then by merely naming them or verbally declaring so, the said house did not become the property of those four sons. Rather, it remained in the ownership of the mother as before, and after her death it will be counted as part of her estate, in which all heirs will be entitled, except in the case where Syed Usman, who endured the additional expenses, had made it clear at the time of spending that these costs would be considered a loan upon the house or upon his siblings to be recovered later. In such a case, he has the right to demand repayment of his additional expenses separately. Otherwise, his contribution too will be regarded as voluntary charity.
Likewise, those brothers who, without valid reason, are obstructing the sale of the said house and preventing the other heirs from receiving their rightful shares are undoubtedly in the wrong. They must refrain from such impermissible conduct. The proper course is that the house should be sold and the shares of the late mother’s estate should be distributed among all the heirs. Thereafter, if the other four sons, out of their own free will and happiness, return their portions to the four brothers after taking possession of them, then they are authorized to do so. But they cannot be compelled to do this, and such coercion must be avoided.

مأخَذُ الفَتوی

کما في الفتاوى الهندية: ومنها أن يكون الموهوب مقبوضا حتى لا يثبت الملك للموهوب له قبل القبض اھ (4/ 374)۔
و في مشكاة المصابيح: وعن أبي حرة الرقاشي عن عمه قال: قال رسول الله صلى الله عليه وسلم: «ألا تظلموا ألا لا يحل مال امرئ إلا بطيب نفس منه» . رواه البيهقي في شعب الإيمان والدارقطني اھ (2/ 889)۔
و في مشكاة المصابيح: وعن أنس قال: قال رسول الله صلى الله عليه وسلم: «من قطع ميراث وارثه قطع الله ميراثه من الجنة يوم القيامة» . رواه ابن ماجه اھ (2/ 926) ۔