Asalalamu-alaikum. I hope you are well. I have the following question:
My grandfather, whilst alive, decided to split his house between three sons. Two sons were well off financially and one son was disabled and could not work so had any personal wealth.
My father decided that one brother will buy the others share and the other will no longer have anything to do with his father's house any longer. My father made the payment and kept my grandfather's house. Thereafter, my grandfather decided that my father (who brought out the share) and the disabled brother (who didn't pay anything towards it) will have an equal share in the house and had it registered and it continued like this until my grandfather passed away.
Then, my father continued to look after his disabled brother morally and financially throughout his whole life until the disabled brother passed away and left behind a wife and an 11-year-old son. When my grandfather was alive, the house only had a few rooms and was a single floor house. My father, throughout the years, rebuilt the house and now the house has three floors and he maintained it with his personal money with no contribution from his disabled brother.
Since my father’s brother passed away, my father has been looking after the wife and child financially and still is supporting them financially till this day and has kept them in the same house. Now, the wife of the disabled brother is demanding a share in the property and wants her share in the form of a cash payout or purchase of a house for her. Could you please let us know what share the disabled brother’s family is due, as my father is the one who brought it with his money and has been maintaining throughout his whole life with no contributions from the disabled brother?
بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم
In the name of Allah, the Most Gracious, the Most Merciful
It does not appear that your father had any paperwork to confirm that he had taken ownership of the house in full since your grandfather still had the house in his name and therefore was able to register it in both brothers names. Your grandfather having a wish to divide the house to the 3 sons and actually enforcing it are two different things. The owner of the property is the one who has full authority to deal with it as he wishes – this is called ‘tasarruf’. It seems that your grandfather was able to put the property in the name of two brothers while he was still alive which shows he was still the owner.
Your father cannot ‘buy out’ any property without being the owner of it or being permitted by the owner to take over the shares.
If he was in fact the owner of the property then what was the reason for not speaking out during the division to him and his disabled brother?
Since it appears that your grandfather still had ownership of the property and transferred it to his two sons, then this would be the accepted status, they are both the owners and therefore your uncle’s family would inherit from the property.
It is advised that you consult a local scholar to divide up the property and if your father has evidence that your grandfather already gave the house to the three brothers (and it wasn't just a wish to) and thereafter your father brought his brothers out, then it is imperative to bring this forward.
Only Allah knows best
Written by Alimah Nasima Umm Hamza
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham