Fatwa ID: 08092

Answered by: Moulana Ateiq-ur Rehman

Question:

Assalamu Alaikum

A sister bought a property in her brother’s name. She and her husband paid the deposit, and it was their house. The reason they bought the property in her brother’s name was so that they could claim housing benefit and use that to pay the mortgage. (Although they have had to pay back the rent they claimed when they bought a house in their name).

After 20 years, the brother is now refusing to give the property back to the sister and is claiming it for himself, stating that “you have benefitted from it all these years, and now I should have it. You have used my name all these years, and now it is mine.”

The father and uncle support the brother’s claim and have stated to the sister that she should hand over the property to the brother.

Is the brother islamically entitled to the property, and is it considered to be his? Also, are the father and uncle correct in stating the house should be given to the brother?

I would be grateful if you could provide evidence to support your decision and answer.

Pray that Allah accepts all your efforts and rewards you abundantly in this world and the next.

JazaKallah
Abdullah

بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم

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

Answer:

السلام عليكم ورحمة الله وبركاته

Jazak’Allah Khair for your question. I would like to start by stating the obvious: benefit fraud is Haram. Cheating the benefits system to acquire benefits is not permissible, and the wealth attained from such cheating is also Haram. This will be classed as cheating and lying, both of which are not permissible. Although the sister has paid back the rent for that period, she and her husband will need to do sincere Tawba (ask Allah for Forgiveness). The brother in whose name the property was placed will also need to do Tawba as he was complicit. Remaining is the issue of the property itself and who has the right to ownership.

Allah سبحانه وتعالى mentioned in Surah Nisa, Ayah 29:

﴿يَـٰۤأَیُّهَا ٱلَّذِینَ ءَامَنُوا۟ لَا تَأۡكُلُوۤا۟ أَمۡوَالَكُم بَیۡنَكُم بِٱلۡبَـٰطِلِ إِلَّاۤ أَن تَكُونَ تِجَـٰرَةً عَن تَرَاضࣲ مِّنكُمۡۚ وَلَا تَقۡتُلُوۤا۟ أَنفُسَكُمۡۚ إِنَّ ٱللَّهَ كَانَ بِكُمۡ رَحِیمࣰا﴾ 1  
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“O you who believe, do not devour each other’s property by false means, unless it is trade conducted with your mutual consent…”

If, at the time of purchase, the agreement was that the sister and her husband were to be the actual owners of the property and the brother was only registered as the owner to defraud the benefits system, according to Shariah, the Property will belong to the sister and her husband. The brother should relinquish his claim to the property and hand it over to the sister, in sha’ Allah.

Evidence for this can be found in Al-Qawa’id al-Fiqhiyya (The Legal Maxims), which states that during a contract or agreement, the meaning and intention behind it will be considered, not merely the literal words or the outward form. In this situation, although the property was purchased under the name of the brother, the intended ownership remained with the sister and/or her husband.

«العبرة في العقود للمقاصد والمعاني لا للألفاظ والمباني …العبرة والعمل لمعانيها المقصودة منها»

“In contracts, consideration is given to the purposes and meanings, not to the words and structures… Consideration and action are based on their intended meanings.” (Al-Qawa’id al-Fiqhiyya ma’a ash-Sharh al-Mujaz li-‘Izzat ‘Ubayd ad-Da’as [Dar at-Tirmidhi], p. 14)

Furthermore, in Hashiyat Ibn Abidin (Radd al-Muhtar), Volume 6, page 509 (Al-Maktaba al-Shamila), it discusses a related principle in the context of mortgages and sales, emphasizing the transfer of rights based on the underlying transaction:

«فَإِذَا ثَبَتَ هَذَا فَنَقُولُ: الْمُرْتَهِنُ ذُو حَظٍّ مِنْ الْبَيْعِ الثَّانِي لِأَنَّهُ يَتَحَوَّلُ حَقُّهُ إلَى الثَّمَنِ وَلَا حَقَّ لَهُ فِي هَذِهِ الْعُقُودِ إذْ لَا بَدَلَ فِي الْهِبَةِ، وَالرَّهْنُ وَالْبَدَلُ فِي الْإِجَارَةِ فِي مُقَابَلَةِ الْمَنْفَعَةِ وَحَقُّهُ فِي مَالِيَّةِ الْعَيْنِ لَا فِي الْمَنْفَعَةِ فَكَانَتْ إجَازَتُهُ إسْقَاطًا لِحَقِّهِ فَزَالَ الْمَانِعُ مِنْ النَّفَاذِ فَيَنْفُذُ الْبَيْعُ السَّابِقُ،»

“If this is established, then we say: the mortgagee has a share in the second sale because his right transfers to the price, and he has no right in these contracts as there is no exchange in a gift, and the exchange in a mortgage and lease is in مقابل the benefit, and his right is in the monetary value of the object, not in the benefit, so his permission was a relinquishing of his right, thus the impediment to validity is removed, and the previous sale becomes effective.”

Applying this principle, the intended transaction was that the sister and her husband would own the property, even though it was registered in the brother’s name for an unlawful purpose. The brother’s claim based solely on the registration is not valid according to Shariah, especially since he did not contribute to the purchase.

Similarly, the father and uncle’s support for the brother’s claim is incorrect from an Islamic standpoint if their stance is solely based on the brother’s name being on the title while the sister and her husband were the actual purchasers and intended owners. They should advise the brother to fulfill his moral and religious obligation to return the property to its rightful owners.

It is crucial for the sister and her husband to continue to seek Allah’s forgiveness for their involvement in the benefit fraud. However, this separate sin does not negate their right to the ownership of the property if the initial intention and financial contribution were theirs.

Only Allah (Subhanahu wa Ta’ala) knows best.

Written by Maulana Ateiq-ur Rehman
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham