Grandfathers property being distributed during his lifetime

My grand father had given his property, a large land and the house, to my father asking him to divide the land among father's brothers and sisters and to keep the house for him.  Accordingly father had distributed the large land among his brothers and sisters and kept the house for him where all of us, including fathers parents lived.  Grand father had died before father's expiry and grand mother lived with us till her death.  After my father's death grand mother had told my mother that this house is totally for my mother.  It is not known whether my grandmother knew that she had a share in the house and given that share too to my mother However she did not vacate the house and handed over to my mother but lived together till her death.My mother had her own house and fathers house.  She divided both houses to 3 children each by way of lottery among 2 sons and 4 daughters saying that the house was given to her by father.   Mufthi Sahib,  some say that the way of distribution was not correct since a share from father's house should have been given to grand mother also.  Some of her children who were living at the time of grand mothers death have now passed away. Mufthi Sahib please reply as soon as possible according to the rulings of SHAFI'EE MASLAK.
If there is a share for grand mother is it possible to sell the house without informing them and distribute the money according to the share between her Wurasa because if they come to know that they have a share they will just not allow to sell the house.
JAZAKALLAHU KHAIRA

In the name of Allah, the most Beneficent, the most Merciful.

Answer

Any property, which is distributed during the lifetime, is considered as a gift and not inheritance. Therefore, the rules of inheritance will not apply to the aforementioned scenario.

There are four categories of giving gifts to one’s children.

  1. Where the parents intend to harm and avoid giving the rights to the children. This is Makruh Tahrimi.
  2. Where the parents do not intend to harm the children or avoid giving their rights, however, there is no valid reason of preference of one child over another, this will be Makruh Tanzihi.
  3. If one child is preferred due to him being in the path of Allah, such as studying sacred knowledge, then it is desirable to prefer one child over the other.
  4. If a child is deprived from receiving extra wealth due to him being irreligious and a sinner then it is mustuhub to deprive him. (Bahrur Raaiq p.288 v.7 & Ahsanul Fatawa p.256 v.7)

When the grandfather advised your father to distribute the property amongst your father’s brothers and sisters during his lifetime, it has now become a gift. Your grandmother does not have a share of the property. Therefore, after your fathers death the house should be distributed between your mother, brothers, sisters and grandmother. All of you have a right over the property. It is not permissible for your mother to  distribute the property which belonged to your father between the children. She also has a share in the property and it should be distributed according to the Islamic law on inheritance. However, it will be permissible for her to distribute her own house in form of a gift between the children.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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