Fatwa: # 42859
Category: Inheritance (Irth)
Country:
Date: 4th August 2019

Title

Are the heirs of a land still entitled to a share of it, if one of the heirs bought the land or invested in the land during the lifetime of the deceased?

Question

Salaam. I hope you are well.  

I have been married over 20 years and have one child. My husband has children from his previous marriage. He is planning on distributing the property/land in his homeland according to Shariah giving right to all his children. Alhamdulillah.  

He purchased this house; it is mortgaged, and we have been living here ever since marrying. He has been the breadwinner obviously, but the house has been in both our names. I have also made some investment in our home, although not as much as him. He is planning to make a will for this house stating that it will be mine until I die and then it will be given to all his children – according to Shariah.  

But my concern is and the reason why I am here today posting this question is that. My husband has planned that the house will be purchased by my child (his child with me from his second marriage) and will repay the mortgage. So, my question is, if my child is investing in the property with their own money, not father's money, their own.... how can my husband's other children have a right on the house? They would have a right on the house if my husband paid for it and it was his till death? He has also mentioned that we should not mention to anyone (family/relatives/friends) that my child will be purchasing the house.  

As a mother, I am concerned about my child. I wouldn’t have any problem if my husband was the owner and invested in it for the rest of his life and given it to them, because the other children have a right on his things too. Although, they never come to visit him, even when he is sick, he can call them a 100x and they still won’t come. Whereas, my child has been faithful, done everything that could be done for a father – everyone else admires and respects my child too and have not hesitated to say that as a father he should gift a home to my child.  

Honestly speaking, I’ve talked about property so many times and my child doesn’t seem to care about money. That they’ve mentioned how they would not mind not taking any money from the land/property in his homeland if it was ever to be sold. I’ve been blessed Alhamdulillah. But I am a mother. I can’t see unfairness with my own child, or let it happen with his other children. 

So, going back to my question. Are the other children entitled to the house if my child purchases/invests in the property or will they still have a share?  

I really don’t care about myself, but I care about my child. We both have made so many compromises/sacrifices over the years, from breaking ties with family members/friends because my husband says so, we eat, sleep, stand, sit according to his will. Obey him in simple terms. He threatens talaq if questioned/or disagreed with even if he is in the wrong. 

I’m still thinking why he mentioned that I should not tell anyone that my child will be purchasing the property.... I hope he doesn’t be unfair to my child after all that my child has done for him. My mind and heart are feeling restless. I am so worried.  

Please do remember us in your dua’s and please answer this question. Jazak Allah 

  

Answer

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

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

Sister in Islam.

Your concern regarding the distribution, ownership and occupation of the house you reside in is valid. The proposed plan is incorrect and unIslamic.

You also state you cannot discuss your concerns with your husband as he threatens with Talaaq.

You may consider changing your approach on the issue. Instead of addressing the injustice to your son, focus on your husband preparing his will according to Shariah. Advise him that if he prepares his will according to Shariah,  it will be beneficial for him and he will attain the great rewards stated in the following Hadeeth :

قال رسول الله - صلى الله عليه وسلم -: "من مات على وصية، مات على سبيل وسنة، ومات على تقى وشهادة، ومات مغفورا له" سنن ابن ماجه ت الأرنؤوط (4/ 9( 

Translation: Nabi (Sallalahu Alayhi Wassallam)  said : “Whoever dies leaving a will, he dies on the right path and Sunnah, and he dies with piety and witness, and he dies forgiven.”

If  his dealings are incorrect and his will is not according to Shariah, there are grave consequences for him in the hereafter. You may share the following Hadeeth with him:

عن رسول الله صلى الله عليه وسلم قال: "إن الرجل ليعمل والمرأة بطاعة الله ستين سنة ثم يحضرهما الموت فيضاران في الوصية فتجب لهما النار""

المسند الموضوعي الجامع للكتب العشرة (16/429

Translation: Nabi (Sallalahu Alayhi Wassallam)  said :"  A man or a woman acts in obedience to Allah for sixty years, then when they are about to die they cause injury by their will, so they must go to Hell".

Advise him to consult with the Ulema who will advise him on how he should deal  with the issue. Your focus should be safeguarding his interests in Deen rather than safeguarding your interests and your sons interests. This may appeal to him and you would achieve the desired result of justice and equality in the distribution of the home.

And Allah Ta’āla Knows Best

Ahmad Patel

Student Darul Iftaa

South Africa

Checked and Approved by,
Mufti Ebrahim Desai.

 

 1الفتاوى الهندية (4/ 396(

  قَالَ أَصْحَابُنَا جَمِيعًا: إذَا وَهَبَ هِبَةً وَشَرَطَ فِيهَا شَرْطًا فَاسِدًا فَالْهِبَةُ جَائِزَةٌ وَالشَّرْطُ بَاطِلٌ كَمَنْ وَهَبَ لِرَجُلٍ أَمَةً فَاشْتَرَطَ عَلَيْهِ أَنْ لَا يَبِيعَهَا أَوْ شَرَطَ عَلَيْهِ أَنْ يَتَّخِذَهَا أُمَّ وَلَدٍ أَوْ أَنْ يَبِيعَهَا مِنْ     فُلَانٍ أَوْ يَرُدَّهَا عَلَيْهِ بَعْدَ شَهْرٍ فَالْهِبَةُ جَائِزَةٌ وَهَذِهِ الشُّرُوطُ كُلُّهَا بَاطِلَةٌ، كَذَا فِي السِّرَاجِ الْوَهَّاجِ.

 

 

 2مستخرج أبي عوانة ط الجامعة الإسلامية (12/ 578 حدثنا موسى بن إسحاق القواس، قال: حدثنا عبد الله ابن نمير، ح.وحدثنا أبو الحسن الميموني ، وعمار بن رجاء، قالا: حدثنا محمد بن عبيد، قالا: حدثنا عبيد الله بن عمر، عن نافع، عن ابن عمر، أن رسول الله صلى الله عليه وسلم قال: "ما حق امرئ مسلم أن يبيت ليلتين وله شيء  إلا ووصيته مكتوبة عنده"

 

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