Fatwa No : 84538
Is a son who already got a house gifted from his father during his lifetime entitled a share from father’s inheritance

Is a son who already got a house gifted from his father during his lifetime entitled a share from father’s inheritance

:
What do the respected
mufthis say about this matter?
My late father owned a house in Buffer Zone. He sold it and gave one of his four sons a share from the proceeds, amounting to Rs. 163,000. With the remaining amount, he bought another house and verbally assigned it to us three sons. There was no written documentation, and the daughters were not given any share. A small amount was set aside for the daughters but was later spent on my wedding.
We three brothers continued to live in that house with our parents. Later, our mother passed away, and after that, one of the brothers living with me on the first floor also passed away. He left behind a widow and three daughters. Then, two months ago, our father passed away as well. At the time of his death, he was residing with me on the first floor. The two other brothers still live on the ground floor.
It should also be noted that this arrangement of residence was done according to our parents’ instructions. Whenever the daughters demanded a share, the father used to reply, “This belongs to the three sons. If you want a share, take it after I am gone.”
Now, I humbly request answers to the following questions in light of Shariah:
The brother who was given a share of Rs. 163,000 by the father before purchasing the current house — is it permissible for him to claim any share in this current house? And based on that earlier amount, will he be excluded from inheritance from the father’s estate?
What is the correct method of distributing the mentioned house (the one currently under discussion)? At the time of the father's death, his heirs included three sons and three daughters. Do the heirs of the deceased brother (i.e., his widow and three daughters) have a share in the inheritance or not? Please clarify this as well.

الجوابُ حامِدا ًو مُصلیِّا ً

It should be clear that if the deceased father of the inquirer, during his lifetime, had given ownership of a portion of the first house to one of his sons, then that was a gift (hiba) and donation from the father, and the son had become its rightful owner, as is evident from the question. However if no actual transfer of ownership took place, then the son did not become the owner of that house merely by being told so. In that case, the house remained in the ownership of the deceased father, and after his passing, it will now be distributed—like the rest of his estate—among all rightful heirs, including the mentioned brother, according to their Islamic legal shares, as explained below.
However, the brother of the inquirer who passed away during their father's lifetime—his children will not be entitled to any share in the grandfather’s estate. Having said that, if the other heirs voluntarily wish to give something from their own share to the deceased brother’s children, they are permitted to do so, but it is not obligatory upon them.
Now, it should be further clarified that the estate of the deceased father, in accordance with the laws of Islamic inheritance, will be divided among the inquirer and the other heirs in the following manner:
Whatever movable and immovable property, including gold, silver, jewelry, cash, and all types of small and large household items, the deceased owned personally at the time of his death, shall first be used to cover the moderate funeral expenses.
Then, if the deceased had any outstanding debts, they must be paid off.
After that, if the deceased had made any valid will, it shall be executed to the extent of one-third (1/3) of the remaining estate.
Finally, the remainder of the estate will be divided into nine (9) shares, with each son receiving two (2) shares and each daughter receiving one (1) share.

مأخَذُ الفَتوی

كما في حاشية ابن عابدين (رد المحتار): بيانه أن شرط الإرث وجود الوارث حيا عند موت المورث اھ (6/ 769)۔
وفي الدر المختار: (وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) والأصل أن الموهوب إن مشغولا بملك الواهب منع تمامها اھ (5/ 690)۔
و في رسائل ابن نجيم الاقتصادية: و في (البزازية) من (كتاب الدعوى) من (الرابع عشر) ولو قال : تركت حقى من الميراث او برئت منه أو من حصتى لا يصح وهو على حقه لأن الإرث جبرى لا يصح اسقاطه اهـ (ص: 453)۔