Fatwa No : 90644
Elder brothers obstruction in distributing inheritance.

Elder brothers obstruction in distributing inheritance.

I would like to mention that my mother has passed away. My mother possessed approximately six to seven tolas of gold. Out of this, three tolas of gold were made by me and gifted to my mother, and the remaining approximately four tolas of gold were made by my elder brother as a gift for her. We are three sisters and four brothers. Now all of this gold is in the possession of my elder brother, and he is not giving it to any of the brothers or sisters, claiming that it belongs to him. Therefore, we request you to kindly explain to us, in the light of the Qur’an and Sunnah, whether the three sisters and four brothers have a rightful share in this or not.
P S :
All of us brothers and sisters are married, and the parents and husband of the deceased had passed away earlier.”

الجوابُ حامِدا ًو مُصلیِّا ً

“It should be understood that if a person, during his or her lifetime, gives something to someone as a gift, and at the time of gifting, hands over possession of that item to the recipient (the one to whom the gift is given), then such a gift is legally valid and complete, according to Islamic law. That item then leaves the ownership of the giver and enters the ownership of the recipient. Therefore, in the present case, if the questioner and his brother had the gold made and gifted it to their mother and handed it over into her possession and control, then according to Islamic law, that gold became the mother’s property. Consequently, after the mother’s death, this gold will be included in her estate and will be distributed among all the heirs according to their prescribed Islamic shares (as explained below).
Accordingly, it is neither permissible nor valid in Islamic law for the mentioned brother to take possession of the gold and consider it his own without the permission and consent of the other heirs. By doing so, he is committing a serious sin. It is obligatory upon him to include this gold in the rest of the deceased mother’s estate and distribute it among all the heirs. He must repent sincerely with remorse for his action, seek forgiveness, and promptly give the remaining brothers and sisters their lawful shares, so that he may free himself from accountability in this world and the Hereafter. Otherwise, the remaining heirs are also entitled to take legal action against him.
Thereafter, it should be clarified that the estate of the deceased mother will be distributed among her existing heirs according to the principles of inheritance as follows: whatever movable and immovable property, including the aforementioned gold, land and buildings, gold, silver, jewelry, cash, and all kinds of household items—small or large—the deceased owned at the time of her death, first the moderate expenses of her shrouding and burial shall be paid from it. After that, if the deceased had any outstanding debts, they shall be paid. Thereafter, if the deceased had made any valid bequest, it shall be carried out up to the limit of one-third (1/3) of the remaining estate. After that, whatever remains shall be divided into a total of eleven (11) shares, out of which each of the four sons of the deceased will receive two (2) shares, and each of the three daughters will receive one (1) share.”

مأخَذُ الفَتوی

کما فی مشکاۃ المصابیح: وعن أنس قال: قال رسول الله صلى الله عليه وسلم: ”من قطع ميراث وارثه قطع الله ميراثه من الجنة يوم القيامةالخ (باب الوصایا، الفصل الثالث،ج:1،ص: 266،ط: قدیمی كتب خانه)۔
وفی الدر المختار: (و تتم)الھبۃ بالقبض الکامل(ولو الموھوب شاغلاً لملک الواھب لا مشغولاً بہ)الخ (کتاب الھبۃ، ج: 5،ص: 690، ط: سعید)۔