سوال

A father died and left 9 sons and 2 daughters. Some heirs were not agreeing on the distribution of the property consisting of plots by raising the following questions:

• Bank account balances as at his death.
• Cash in hand as at his death.
• Our late mother's property held in his hands.
• His business (bookshop).
• House(s) owned by our father, abroad.
• Machinery.
• Other assets.

Then they got answers to their questions by the administrator of the estate as follows:

• The account was closed by our father before he died.
• I am not aware of any cash at hand, if you are aware pl ease shine some light.
• Our mother never had any property and I do not know of otherwise.
• The shop was put in brother Yaseen and brother Ibrahim's name by our father and is registered in their name.

• I am not aware of any property owned abroad, except for a house in brother Yaseen's name.
• The machinery has to be discussed by all brothers.
• I am not aware of any other assets, if you are aware of any, please do shine some light.

Then the administrator did the valuation and split the property into two by

putting 5 brothers on 1 side and 4 brothers and 2 sisters on the other side because some wanted to invest in the property and others were not coming to an agreement.

Is this split or division ok and valid according to the Islamic Sharia knowing that it wasn't with the agreement and consent of all the heirs?

NOTE: Those who do not agree with the split or allocation have benefited from the rental incomes that generated from their side because they were in need except for one heir who neither agrees with the split nor did he benefit from the rental income.

اَلجَوَابْ بِاسْمِ مُلْہِمِ الصَّوَابْ

According to Islamic principles, the estate of the deceased must first be used to cover the necessary funeral and burial expenses, provided that no heir has voluntarily borne these expenses as an act of charity. Thereafter, any outstanding debts of the deceased must be paid. If the deceased has left a valid will, it shall be executed up to one-third (1/3) of the estate. After fulfilling these obligations, the remaining estate, including cash, movable and immovable property, shall be distributed among the rightful heirs.

Mere registration is not sufficient to establish ownership under Islamic law. In Shariah, ownership requires valid legal causes. Since, in some cases, registration is done for legal or administrative purposes without fulfilling the conditions for ownership transfer, it is essential to examine whether both properties were fully handed over to Yaseen and Ibrahim at the time of registration, with complete possession and control, and without any intervention from their father. If this was not the case, then the properties will still be considered as part of the father's estate, and all heirs will have equal rights to their respective shares.

Moreover, the division that has been carried out is not in accordance with Shariah, as the formation of two separate groups from the outset is not correct. Therefore, if the deceased have no heirs except nine sons and two daughters, then the estate should be divided on the basis that each male takes the share of two females, all heirs must first gather, and the estate should be distributed in accordance with the following method, ensuring that each heir receives their rightful share. Thereafter, they may utilize their share as they deem appropriate.

The total estate shall be divided into twenty (20) shares:

Each son shall receive two (2) shares

Each daughter shall receive one (1) share

(النساء : ١٢)

يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ .....

الفتاوى العالمكيرية : (4/377):

ولا يتم حكم الهبة إلا مقبوضة ويستوي فيه الأجنبي والولد إذا كان بالغاء هكذا في المحيط. والقبض الذي يتعلق به تمام الهبة وثبوت حكمها القبض بإذن المالك، والإذن تارة يثبت نصا وصريحا وتارة يثبت دلالة.

الفتاوى العالمكيرية : (4/374):

و منها أن يكون الموهوب مقبوضا حتى لا يثبت الملك للموهوب له قبل القبض و أن يكون الموهوب مقسوما إذا كان مما يحتمل القسمة وأن يكون الموهوب متميزا عن غير الموهوب ولا يكون متصلا ولا مشغولا بغير الموهوب.