Fatwa No : 90374
Distribution of the Inheritance

Distribution of the Inheritance

What do the respected scholars say regarding the following issue: My father has passed away. At the time of his death, he was survived by four daughters, one grandson, and three granddaughters. During his lifetime, my father had transferred the house into the name of our mother, although he himself also used to live in that house. In fact, the house had originally been purchased in our mother’s name.
My mother passed away earlier. At the time of her death, her heirs were: her husband Abdul Bari, one son (Anwar Ali), and four daughters. After the mother’s death, the son Anwar Ali also passed away, leaving behind a widow, one son, and three daughters. The question is: according to the laws of Islamic inheritance, how should this property be distributed among the mentioned heirs?

الجوابُ حامِدا ًو مُصلیِّا ً

It should be clearly understood that merely registering or purchasing something in another person’s name does not, according to Shariʿah, make that person its owner, unless the property is formally handed over to him/her with full proprietary rights and authority of disposal. Therefore, in the present case, if the deceased father of the questioner had only purchased the said house in the name of the deceased mother, but did not grant her full ownership rights and powers of disposal, then according to Shariʿah the house will be regarded as the property of the deceased father. Since the deceased son (Anwar Ali) and the wife had already passed away during the lifetime of the deceased father, the deceased son and his widow (the questioner’s mother) will not be entitled to any share in the deceased father’s estate. Likewise, the widow of the deceased son will not be entitled to any share in the estate through him. However, if the deceased son (the questioner’s brother) owned any personal property of his own, then that property will be distributed among his heirs (his widow and children). Nevertheless, at the time of the deceased father’s death, since no surviving male offspring were present, his grandson and granddaughters will be entitled to inherit from the estate according to their respective Shariʿah shares, the details of which are set out below.
Then it should be clearly understood that the estate of the deceased father of the questioner will be distributed among his surviving heirs according to the principles of Islamic inheritance as follows: Whatever movable and immovable property, gold, silver, jewelry, cash, and all types of major and minor household items the deceased left in his ownership at the time of death constitutes his estate. From this estate, the moderate expenses of shrouding and burial should first be paid. Thereafter, any outstanding debts owed by the deceased must be settled. After that, if the deceased made any valid bequest, it should be executed up to a maximum of one-third (1/3) of the remaining estate. Thereafter, whatever remains should be divided into a total of thirty (30) equal shares. From these, each of the deceased’s daughters shall receive five (5) shares, the grandson shall receive four (4) shares, and each of the granddaughters shall receive two (2) shares.

مأخَذُ الفَتوی

کما فی الدر المختار: ( و تتم ) الھبۃ (بالقبض) الکامل (و لو الموھوب شاغلا لملک الواھب لا مشغولا بہ ) ( کتاب الھبۃ ، ج 5 ، ص 690 ، ط : سعید)۔
وفی الشامیۃ: وشروطه ثلاثة: موت مورث حقيقةً أو حكمًا كمفقود أو تقديرًا كجنين فيه غرة، ووجود وارثه عند موته حيًّا حقيقةً أو تقديرًا كالحمل، والعلم بجهل إرثه الخ( كتاب الفرائض، ج 6، ص 758، ط: سعيد)۔
وفی لسان الحكام في معرفة الأحكام: وتنعقد الْهِبَة بالايجاب وَالْقَبُول لِأَنَّهَا عقد فتفتقر الى الايجاب وَالْقَبُول كَسَائِر الْعُقُود وَفِي الْبَدَائِع ركن الْهِبَة الايجاب من الْوَاهِب فَأَما الْقبُول من الْمَوْهُوب لَهُ فَلَيْسَ بِرُكْن اسْتِحْسَانًا وَالْقِيَاس أَن يكون ركنا وَبِه قَالَ زفر رَحمَه الله تَعَالَى ‌وتتم ‌بِالْقَبْضِ الْكَامِل فالقبض الْكَامِل فِي الْمَنْقُول مَا يُنَاسِبه الخ(الفصل التاسع عشر فی الھبۃ، ص 369، ط: البابي الحلبي)۔