Inheritance of Property

Question:

Asalamualikum Mufti Sahab

Last 1 ½ year ago my father died and he had left one house (300 Yard) for: (a) His wife (b) 5 sons (1 died) (c) 1 daughter

My brother died before 5 years and he had 2 kids I had married to his widow and taken the responsibility of his kids. As discuss with my mother as my mother had requested my father to write the will and give something for my expired brother sons but unfortunately he did not write the will.

My mother & 2 brothers are living in that house and we 2 brothers are working in Dubai. So my mother wants to divide the house into 4 equal parts and give the share of her daughter in cash so she start saving money to give her share of house from her pension from bank which she had worked earlier.

My question is: My mother wants to give some share to the 2 kids of my expired brother from the house and what she had in jewellery. Is it allowed for my mother to give cash to my sister like mention above? How shall his property be divided?

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

The property should be divided into 72 shares:

  • Your mother will receive 9 shares[1]
  • Each brother will receive 14 shares
  • The sister will receive 7 shares[2]

The two children of your deceased brother are not entitled to any inheritance[3]. However, it is at the discretion of your mother to voluntarily give something to the children from her own share or belongings[4].

It is permissible for your mother to buy your sister’s share in the property with her consent on an agreed price[5].

It must be noted that each heir is entitled to the property according to his or her share. It is incorrect for the mother to unilaterally divide the property or force any heir to sell their share unless the heirs in reference themselves consent to it. Thus, your mother cannot force your sister to sell her share.

And Allah Ta’āla Knows Best

Hanif Yusuf Patel

Student Darul Iftaa UK

Checked and Approved by, Mufti Ebrahim Desai.

www.daruliftaa.net

 

 

References

[1] فإن كان لكم ولد فلهن الثمن مما تركتم من بعد وصية توصون بها او دين

[Al-Qur`an, 4: 12]

[2] للذكر مثل حظ الأنثيين

[Al-Qur`an, 4: 11]

[3] ويستحق الإرث بإحدى خصال ثلاث: بالنسب وهو القرابة والسبب وهو الزوجية والولاء

Al-Fatawa al-Alagiriyyah, (Al-Fara`iz) 6:447, Maktabah Rashidiyyah; Radd al-Muhtar ala ad-Durr al-Mukhtar, 6: 762, H. M. Saeed Company; Majma` al-anhur, 4: 495, Maktabah Gaffariyyah Kuwaitah]

[4] ولكل واحد منهم أن يتصرف في حصته كيف شاء

[Sharh al-Mujallah, (Kitab ash-Shirkah: at-Thamin) 1: 643, Maktabah Hanafiyah Kuwaitah; Ibid, no. 1192, 1: 654, Dar al-Kutub al-Ilmiyyah, Beirut; Radd al-Muhtar ala ad-Durr al-Mukhtar, (Kitab al-Buyu`: fi ta`rif al-mal), 4: 502, H. M. Saeed Company]

[5] وأما حكمه فثبوت الملك في المبيع للمشتري وفي الثمن للبائع

[Al-Fatawa al-Alagiriyyah, (Al-Buyu`) 3:3, Maktabah Rashidiyyah; Al-Bahr ar-Ra`iq, 5: 432, Maktabah Rashidiyyah; Bada`i as-Sana`I, 4: 482, Maktabah Rashidiyyah]

[Fatawa Mahmudiyyah, 24: 545-7, Dar al-Iftaa Jamiah Faruqiyyah, Karachi]

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Posted in Inheritance & Will on 28th Jan 2016 by Our Imam | 509 Views