Category: Inheritance
Fatwa#: 19820
Asked Country: Pakistan

Answered Date: Mar 09,2012

Title: Division of property during one's life:

Question

Division of property during one's life:

Syed Ghulam Shah s/o Syed Ahmed Shah is Mashallah alive. He has one wife, four sons and five daughters. He has a property of 2 kanals. On the half of property, he built a house and the remaining property is empty. Now he wants to divide/distribute this property during his life. Please keep in mind that S.G Shah is a retired person and has no source of income except relying on his sons. He is also a paralysis (CVA) patient and cannot walk by his own, his wife too is aged and due to pain in both knees, cannot work and walk freely. In the light of given facts, please answer the following questions according to Quran-o-Sunnah.

As all the five daughters are married and their husbands and in some cases, their children are doing jobs and earning money. In addition, as S.G Shah is not obliged to divide property in his life, then in this case, if he gives equal property to all of his sons and wife but does not give anything to his daughters or gives very less property (as compared to sons and wife) to his daughters. Whether it is permissible? If not, whether it is a great sin or little bit? 

One of brothers owns his house which he purchased by him. He wishes that his son's residence/ house problem would be solved, at the same time he want to invest some property itself or by selling it, and by investing this amount in some business or earn profit through any legal source for himself and his wife's daily expenses, medical and other necessities.(as told earlier, he is retired person).  If he distribute some property among sons on equal basis and handed over them its possession too, so that they can build house as and when they have some money, but did not give any property to his daughters and wife.  By keeping in view the fact that  after his death, this remaining property or invested amount (which is now his asset) will be distributed among all heirs (inheritors) including wife (if alive) and daughters. In other words, the piece of property which he had already given (with possession) to his sons, it is out of his control, but the amount or property he left at the time of death, will be then his total asset. So all his successors including wife, sons and daughters will get their share according to shariah. Whether it is permissible or not?


Answer

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

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

The distribution of property in one’s life time is a gift amongst his children.

It is permissible for one to give a gift as he wishes during his lifetime. If one intends to give a gift to his children, he should maintain equality in the gifting. To give preference to one child over another will be Makruh Tanzīhi (undesirable act); if there is no pressing need in Sharīah.

If one child is given preference due to a valid Sharī reason, i.e., one is exalted in Deen than others, or one is more in need than others and by giving preference it is not intended to harm anyone then it is permissible.[1] 

Therefore, given preference and gifting to one son over the others or to the sons and not to the daughters with the reasons mentioned in query is permissible.

After the demise, whatever is left behind will be distributed amongst the heirs in accordance to the laws of Inheritance and Succession of Sharīah. 

Your second question is not clear.

However, our understanding is that you wish to give some wealth to your sons and save some for your needs and your wife’s needs (as referred to in the query). 

If you wish to secure income for yourself, you may rent out the property or sell part of the property and use the proceeds to invest in Shraīah compliant schemes.   

And Allah Ta’āla Knows Best

Mufti Zaid M Shelia,
Student Darul Iftaa

Chicago, Illinois (USA)

Checked and Approved by,
Mufti Ebrahim Desai.
www.daruliftaa.net



[1]  ولو وهب رجل شيئا لأولاده فى الصحة واراد تفضيل البعض على البعض......عن ابى حنيفة رحمه الله تعالى أنه لا بأس به اذا كان التفضيل لزيادة فضل له فى الدين وان كانا سواء يكره وروى المعلى عن أبي يوسف رحمه الله تعالى أنه لا بأس به إذا لم يقصد به الإضرار، وإن قصد به الإضرار سوى بينهم يعطي الابنة مثل ما يعطي للابن وعليه الفتوى هكذا في فتاوى قاضي خان وهو المختار، كذا في الظهيرية..  الفتاوى الهندية 4/ 391 رشيدية

وفي الخانية ولو وهب شيئا لأولاده في الصحة، وأراد تفضيل البعض على البعض روي عن أبي حنيفة لا بأس به إذا كان التفضيل لزيادة فضل في الدين وإن كانوا سواء يكره وروى المعلى عن أبي يوسف أنه لا بأس به إذا لم يقصد الإضرار وإلا سوى بينهم وعليه الفتوى.. رد المحتار على الدر المختار 4/444 دار الفكربيروت

وذهب الجمهور إلى أن التسوية مستحبة فإن فضل بعضا صح وكره واستحبت المبادرة إلى التسوية أو الرجوع فحملوا الأمر على الندب والنهي على التنزيه.. فتح الباري5/214 دار المعرفة بيروت

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