Fatwa ID: 04092
Answered by: Mufti Eunus Ali
Assalamualaikum wa rehmatullahi wa barakatahu,
My father has 4 children: 2 sons and 2 daughters, all married, Alhamdulillah.
My father purchased land and built a single floor house around 30 years back (i.e. somewhere in the year 1987). My elder brother built 2 floors on top of this with his own expense in the year 2010 ( spent nearly 10lakh INR) because he already had started earning a good and wanted to have a big house before getting married. He spent this amount to construct 2 floors on the existing single floor.
My father wants to prepare a WILL stating how the property shall be divided after him. He actually prepared a rough draft, according to which he mentioned that when the property is sold, first the elder brother will get back the 10lakh INR that he spent. The rest amount shall be distributed as per the law (i.e. one son gets 2 daughters share).
I read somewhere that this would have been correct if father had taken 10lakh rupees as a loan from the son. But actually there was no discussion between father and son before construction.
I also read somewhere, that what the son spent in 2010 shall not be given back to him in full because of depreciation.
بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم
In the name of Allah, the Most Gracious, the Most Merciful
This would be based upon the intention of the brother at the time when he had paid towards the extension of the building.
If he had made the intention of gifting the amount to his father he will only be entitled to the share stipulated by Shariah of the father’s estate like the other siblings.
However, if he had made the intention of becoming the owner of the extension by paying for it, it will not be included within the father’s estate.
As they both are present, it would be best to clarify the issue with them.
Depending on the answer of the brother there are two possible scenarios:
- If the brother had gifted the amount of the extension then he will not be entitled to receive the amount he had invested in the extension of the two floors.
In addition, it will not be permissible for the father to bequest an amount for the son as his amount has already been stipulated in the Quran.
- If the brother did not gift the amount of the extension of the two floors to the father, it will be valued at the time of distribution and then subtracted from the value of the whole building and then the remainder will be distributed as stipulated in the Quran. The brother will also receive a share from that as he is an heir of the father just like the rest of the siblings.
Only Allah knows best
Written by Mufti Eunus Ali
Checked and Approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
Al-Fatawa Al-Hindiyyah, Volume 6, Page 109, Darul Kutbul Ilmiyyah