Message No : 7Sr.No : 235/724
Question By : Mr.Nahed Parvez

Assalamu Alaikum
Dear Mufti Saheb

We are a sunni-muslim family (Currently surviving members are - One widowed mother, Five married daughters & Two married sons) based in Hyderabad-India.

Myself is the eldest son, employed in Saudi Arabia for last 14 years. I had greatly helped my parents financially i.e my four sisters got married entirely on my financial assistance and also my late father's house (New portion) was built with my financial assistance (70 to 75% share of the total) which is currently yielding a rent of around four thousand rupees per month, which is being regularly taken by my mother herself, for her routine daily living expenses.

My father died recently in Holy Madina - Saudi Arabia after the Haj pilgrimage and he had left an immovable property i.e. large house at Hyderabad - India, which is currently valued at around estimated 70 to 80 lakhs rupees. The said house is in fact the one entirely, in custody of my widowed mother for her own use, which was acquired/built by my late father with his hard earned money, half part of which is under his name & the other half on my widowed mother's name, which
he had kept with the only intention to keep her secure, in case of his death.

Since my late father had not left any written will for the property, for reason not known to us, but prior to his death, he had verbally told us clearly (at my home in Jeddah) in front of my wife and mother that, his whole property will pass on to his two sons (i.e. me and my younger brother), after the parents death, provided the two sons should make monetarary compensatation to our five sisters & in return obtain a clear written certification of Property Release/No-Objection Certificate in favour of us and after that finalize the whole matter of legal registration/name transfer.

So, kindly advise me with your legal opinion (According to the Islamic Shariah laws), for the following queries :

01. What is the current legal position of the said property ---------?

02. Who will be the next rightful owners of the said property ---------?

03. What is the legal value of my late father's verbal wish, regarding his property, which he clearly said for his two sons only. Is it fair and justified as per shariah laws--? And also how to establish/prove his verbal wish-----?

04. Are myself & my younger brother the only two persons, who will be equally entitled in or all of us (Including my married sisters) will be entitled for some or equal share in our late father's property -?

05. If my married sister/s or their husband/s or their children are also entitled in the said property, If yes, then what will be their share percentage ----? equal or unequal ----?

06. What is the best method for distribution of the said property ---? & on what basis---? Without selling the same -----?

07. Is it legally possible for my mother to give some share of the said property to my married sisters, without seeking our (Two brothers) written consent---------? (Since the whole property was solely acquired by my late father, But the half portion on her name is considered as a benami ones, according to the Indian laws, since she did not bought on her own, nor it was gifted by her parents/bro-thers/sisters during/after marriage, besides that she did not have any other sources of income to establish/prove that it is not a benami ones)

08. Regarding the property, when can we get it transferred to two sons names ----?

09. Is it necessary to get it transferred from my late father's name to new name/s If yes, then what is the maximum time-limit ----?

10. Is it not fair that, I should get the maximum share in my father's whole property, since I had alrady spent lot of (Current vale of over 15 to 18 lakhs rupees) money previously on my father's responsibilities like daughter's marriages + building the new portion of the house for rental purposes---? & in return I had not received anything in so far ------?

11. Is it fair and acceptable to urge my married sisters to fully/partly relinquish their respective shares in my favour, because they got married only, due to my financial assistance --------?

Awaiting for your favourable response,


N.B : KINDLY NOTE THAT, ALL THE FAMILY MEMBERS COLLECTIVELY ARE NOT OVER-ANXIOUS OR DESPERATE TO TAKE UNDUE ADVANTAGE OVER THIS PROP- ERTY MATTER AND DIVIDE IT OUR AMONG OURSELVES, BY DEPRIVING THE OTH- ER'S DUES, EVEN WHEN MY WIDOWED MOTHER IS ALIVE. IN FACT, WE WANT TO HAVE AN AMICABLE SOLUTION AND FINALIZE THE WHOLE MATTER, WITH THE WRITTEN CONSENT/AGREEMENT OF EACH AND EVERY MEMBER OF THE FAMILY.

 

Reply By : Mohd. Shihabuddin Qasmi
Designation : Mufti, ODI, MMERC, Mumbai 

In the name of Allah, All Gracious, All Merciful
Wa Alaikumossalam
Dear Brother in Islam,

It might be appropriate to draw your attention towards some basic Islamic teachings regarding your questions in order to help you understand the answers easily. The teachings are as follows:

♦ Islam furnishes a man absolute authority to use his property during his lifetime. He is permitted to give his property to whomsoever he likes when he does not want to harm his heirs or deprive them of his property.

♦ There are some conditions for a gift to be valid. One of them is possession. If someone gives a gift to a person but does not let him take possession over it, the gift will not be valid and remain the property of giver. A person gives some clothes to his friend, for instance, in a locked box but does not give the key then the gift is not complete unless the key is also given.

♦ Islam also permits a man to make a will up to one third of the property for such relatives who are not entitled to share his legacy or for a stranger provided that he doesn¡¯t leave the inheritors poor begging others. It narrated on the authority of Sa¡¯d Bin Abi Waqqas (RA). He said, ¡°The Prophet (SAWS) came visiting me while I was (sick) in Makka, (Amir, the sub-narrator said, and he disliked to die in the land once he had already migrated). He (The Prophet) said, ¡°May Allah bestow His Mercy on Ibne Afra¡±. I said, ¡°O Allah¡¯s Apostle! May I will all my property? He said, ¡°No¡±. I said, ¡°Then may I will half of it?¡± He said, ¡°No¡±. I said, ¡°One third?¡± He said, ¡°Yes, one third, though one third is still too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others, and whatever you spend for Allah¡¯s sake will be considered as a charitable deed even the handful of food you put in your wife¡¯s mouth. May Allah lengthen your age so that some people may benefit by you and some others be harmed by you¡±. At that time Sa¡¯d had only one daughter. (Bukhari, Kitabul Wasaya, Vol: 1 Page: 382) But making a will for a relative who is entitled to have shares in the heritage, such as parents, husband, wife, sons, daughters and so on, is not permitted. The Prophet of Islam (SAWS) is reported as having said, ¡°There is no permission to make a will for a heir¡±. (Ibid 383)

♦ All the earnings of a son who lives under the care of his father will belong to the father. And after the death of the father, it would be distributed amongst the inheritors who would be alive at that time, as per their shares. But the earnings of a son who does not live under the care of his father will be his own. These earnings do not belong to the father. (Raddul Muhtaar Alaa Durril-Mukhtaar, Faslun-Fish-Shirkatil-Fasidah, Vol: 3)

♦ It is the moral and religious responsibility of a son to look after his parents and relatives particularly when they are in need. Parents are permitted to use the wealth and property of the children for much as they need even without taking permission. The Apostle of Allah (SAWS) is reported as to have said, ¡°You as well as your wealth belong to your father¡±. (Masnad Imam Shafee Part: 3 Hadith: 639)

Now go through the following answers and hope you will find no difficulty to get them:

01. The above-mentioned property is heritage.
02. The property will be distributed amongst the heirs who were alive when your father was living for heavenly abode, as per their shares.
03. Sons are entitled to have their shares in the legacy. Therefore, the will made by your father is invalid, as per Islamic Shariah. But, if all the heirs are sane and adult and unanimously agree to follow the will of deceased then they are allowed to do.
04. After performing his all obligatory duties such as Mehr, debt and so on, the house and all other properties of your father will be divided into seventy two portions if he left behind one wife, two sons and five daughters. Amongst these seventy two shares, nine for wife, twenty eight for two sons (fourteen for each) and thirty five shares for five daughters (seven for each).
05. Sisters¡¯ husbands and children are deprived of the said property.
06. It is up to heirs mutual understanding.
07. It is not proper and permissible for a heir to entertain or give as charity and Sadaqa etc. out of the property left by the deceased, before distributing the same. After distributing, heirs are permitted to use their shares as they like. As per your statement, the whole property was solely acquired by your father and the half portion of the property is on your mother¡¯s name in the Bainama. The position of the Bainama is not clear. However, if your father acquired the property for himself and put the name of your mother in Bainama due to some reason then it would be the property of your father. But if he made her owner of the half portion and she had taken possession over it then that half portion would be hers and she is allowed to use it as she wills.
08. After distributing the heritage, every heir is permitted to transfer his/ her share on his/ her own name.
09. The property of a deceased person transfers to his/ her heirs without any transformation, as per the Islamic teachings. As far as the Indian law is concerned, you can get information from an advocate in regard.
10. It was your religious and moral responsibility to look after your father, brother and sisters when they were in need and you would be rewarded on the Day of Resurrection.
11. They have absolute authority to use or gift their shares to whomever they wish, after distributing the legacy and taking possession over the shares.

And Allah knows the best,

(Note: If there is any doubt or confusion then feel free to ask, but in a concise and precise way. I would be obliged to you for your brief and c

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