Fatwa ID: 08348

 

 

Answered by: Maulana Yusuf Badshah

 

Question:

 

My dad sold his property in 2009 and bought a new one with one of my brothers. My dad’s share was £245000. A mortgage of £90000 was paid by my brother, over a 5-7 year period. My dad later paid £30000 towards the mortgage as a lump sum. My mother had stated that all of us siblings had a share in the new house. My mother passed away in 2012 and we do not have access to the will (if one was made or not).

 

In 2021, without any consultation my dad sold his share to my brother at a highly discounted price. Now, at the time there was some sort of agreement that my dad would give us sisters £30000 each and the two sons including the one who bought the house £60000 each. We have not all received this amount. Most of us have received half of the amount and my brother has told us that we would get the remaining amount later,  we do not know when.  He said, maybe after 10 years when he’s finished paying the mortgage.

 

We have stated that the money will have no value then and we do not wish to wait. Our brother has told us he cannot do anything. If we ask our dad he tells us to speak to our brother. Are they correct? Do we have to wait for our brother to give us our share/gift whenever he has the money? Also, he received the full £60000, whereas the rest of us are having to wait.

 

Is this correct? The house was sold at the 2009 price. My dad has given us shares from the property he first sold and not the market value. Also, we understand that you cannot give inheritance whilst alive. Is zakaat payable on this sum? We don’t know when we will receive it. Our brother said we don’t need to pay zakaat on it. We are 4 sisters and 2 brothers.

 

Kindly let us know our rights in this matter.

 

 

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

 

Answer:

 

Your father is permitted to distribute his wealth prior to his passing, provided he is not on his deathbed or suffering from an illness which will result in his passing, although you are correct in that this would not be considered inheritance and thus would not be subject to the laws of inheritance [1].

 

The first point to consider is who owned the property. While your mother may have stated that each sibling had a share in the house, the purchase would imply that your father’s share was £275000 and you brother’s share was £60000, and the fact that your father sold his share implies this share was entirely his and that none of your siblings are on the deed to the property.

 

Nevertheless, if the property was indeed jointly owned by your father and your siblings prior to him selling his share, then it would not be permissible for your father to sell his share to your brother without your permission, given that it is not his property to sell, and it is equally impermissible for your brother to then withhold this money from you.

 

Otherwise, if the share was entirely your father’s property then him selling it to your brother is permissible. Whether the scenario is the first or second will depend on whether or not your father explicitly agreed to give each child a portion of his share prior to him selling it.

 

The second point to consider is the nature of the agreement by your father to give each sister £30000 and each brother £60000. If your siblings did not own any of your father’s share, then this agreement would be considered a gift from your father, and thus subject to the rules related to gifting. Namely, one cannot gift one child to the exclusion of others or gift his children unequally.

 

This means that not only should you and your brothers have received the same amount, but it is not correct for your brother to have received his £60000 while you and your sisters have still not received their share [2]. As stated above, this is not inheritance, the brothers do not receive twice the share of the sisters.

 

The third point is your brother’s role in transferring this money to you. As this is your father’s wealth that he has been appointed to distribute, he has no right to delay repaying you your share of the money given that your brother has already received his, nor does he have the right to spend this money which you are entitled to on his mortgage. It is your father’s money which you were owed the moment your brother received his share, and both he and your father will be held responsible for the delayed payment and unfair treatment.

 

To conclude, if you and your siblings owned shares in the property, it was impermissible for your father to sell it to your brother or withhold your share. Even if it was entirely his, it is still incorrect for him to gift his children unequally or to give your brother his full share now and the rest of you later, and your brother has no right to decide to delay repaying you your share or use it to pay his mortgage.

 

However, to come to a definite answer it is important that the nature of these agreements to give you a share of the house and to give you £30000 are clearly defined, and the reason for which your brother has received his full £60000 share is made clear.

 

Finally, if you are indeed legitimately owed to this amount then you will only be required to pay Zakah on it provided you expect to receive it in the near future. This means that as long as your brother refuses to pay you the amount, you will not be required to pay Zakah on it [3].

 

 

References:

 

[1] Raddul Muhtar, vol. 6, pg. 560, Darul Fikr:

وَهَذَا لِأَنَّ الْمَانِعَ مِنْ التَّصَرُّفِ مَرَضُ الْمَوْتِ، وَهُوَ مَا يَكُونُ سَبَبًا لِلْمَوْتِ غَالِبًا

 

[2] Sahih Al-Bukhari 2586:

حَدَّثَنَا عَبْدُ اللَّهِ بْنُ يُوسُفَ، أَخْبَرَنَا مَالِكٌ، عَنِ ابْنِ شِهَابٍ، عَنْ حُمَيْدِ بْنِ عَبْدِ الرَّحْمَنِ، وَمُحَمَّدِ بْنِ النُّعْمَانِ بْنِ بَشِيرٍ، أَنَّهُمَا حَدَّثَاهُ عَنِ النُّعْمَانِ بْنِ بَشِيرٍ، أَنَّ أَبَاهُ، أَتَى بِهِ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَ إِنِّي نَحَلْتُ ابْنِي هَذَا غُلاَمًا‏.‏ فَقَالَ ‏”‏ أَكُلَّ وَلَدِكَ نَحَلْتَ مِثْلَهُ ‏”‏‏.‏ قَالَ لاَ‏.‏ قَالَ ‏”‏ فَارْجِعْهُ ‏”‏‏‏

 

Raddul Muhtar, vol. 5, pg. 596, Darul Fikr:

وَلَوْ وَهَبَ فِي صِحَّتِهِ كُلَّ الْمَالِ لِلْوَلَدِ جَازَ وَأَثِمَ

 

[3] Fatawa Hindiyyah, vol. 1, pg. 174, Darul Fikr:

وَيُشْتَرَطُ أَنْ يَتَمَكَّنَ مِنْ الِاسْتِنْمَاءِ بِكَوْنِ الْمَالِ فِي يَدِهِ أَوْ يَدِ نَائِبِهِ فَإِنْ لَمْ يَتَمَكَّنْ مِنْ الِاسْتِنْمَاءِ فَلَا زَكَاةَ عَلَيْهِ وَذَلِكَ مِثْلُ مَالُ الضِّمَارِ كَذَا فِي التَّبْيِينِ وَهُوَ كُلُّ مَا بَقِيَ أَصْلُهُ فِي مِلْكِهِ وَلَكِنْ زَالَ عَنْ يَدِهِ زَوَالًا لَا يُرْجَى عَوْدُهُ فِي الْغَالِبِ كَذَا فِي الْمُحِيطِ، وَمِنْ مَالِ الضِّمَارِ الدَّيْنُ الْمَجْحُودُ وَالْمَغْصُوبُ إذَا لَمْ يَكُنْ عَلَيْهِمَا بَيِّنَةٌ فَإِنْ كَانَتْ عَلَيْهِمَا بَيِّنَةٌ وَجَبَتْ الزَّكَاةُ

 

 

Only Allah (عز و جل) knows best.

Written by Maulana Yusuf Badshah

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham