Fatwa Explorer

Fatwa #436583 December 2019United Kingdom

Please can you kindly provide us with a guidance in accordance with the Quran and Sunnah?

Question

Please can you kindly provide us with a guidance in accordance with the Quran and Sunnah in relation to the ownership of a property and thus the distribution of its proceeds upon selling it based on the following: We are 8 siblings (5 Brothers and 3 Sisters). Father passed away in 2003 and Mother passed away in 2019 (May Allah have mercy on their souls). In 1981 the 2 elder brothers who had been residing in the UK for a number of years decided to purchase a property jointly. As they had been living in rented accommodation with their wives and children and were quickly outgrowing the space, they decided to purchase a property. Both brothers were staunchly against taking any commercial bank loans and wanted to avoid any form of interest. The two elder brothers had 30% of the funds to purchase the property which they had saved from working in the UK. They decided to ask their father to assist them in making up the shortfall (the remaining 70% of the purchase price) in order to avoid taking out a mortgage and thus falling into riba. The father agreed to give them the money as he understood the implications of riba. The 2 elder brothers at the time were the only members of their family in the UK, with their father residing in Africa with all other members of the family. It must be stressed here that it was the decision of the 2 elder brothers to purchase the property and the father had no input in buying the house. The father did not instruct the sons to purchase the property, and in fact was only informed during the latter stages of the transaction. As such, an important point of information worth noting here is that it was the intention of both elder brothers to acquire the property for there own personal use and ownership. This was always the understanding between sons and father. The 2 elder brothers confirm this fact (still alive) and it is also well known amongst the wider community that this was the case. All proofs of purchase also corroborate the fact that the money used to purchase the property was that of the 2 elder brothers (30%) and the remaining amount was provided by the late father(70%) upon request by the elder sons to the father. Upon this request to borrow money to purchase the property the father willingly gave them the remaining 70% needed to complete in order to avoid loans. The 2 elder brothers resided at this property for a number of years with their families as well as looking after a number of their younger siblings who had arrived from Africa. All costs were borne by the elder brothers. Their late father decided to settle in the UK in the late 80’s, and naturally resided with the Mother and other siblings at this property. The 2 elder brothers having a more stable income and being relatively older in age had purchased other properties which they then moved into with their immediate families in order to allow for space and comfort for their Mother, Father and siblings. Between 1993-1997 a dispute occurred between one of the elder sons and his father. This dispute arose due a misunderstanding of who actually owned the property. The property was purchased under the name of one of the elder brothers. Due to the father having lent money to the older sons and the older sons not having repaid the loan, some elements of the family had claimed that the name on the title deeds should reflect that of their father, and not that of the second oldest son. Hence the dispute between one of the sons and his father started regarding ownership of the property. During this period a will was written by the Father in 1996 (This will has only been found in 2018). The will contains a line stating that the property was purchased for him. However, this was essentially the crux of the dispute, as the elder sons were always of the stance that they had purchased the property for themselves to reside in. It was due to the level of love and respect they had for their siblings and parents they considered them living in that property as a matter of honour for all those years. Furthermore they have always maintained that they borrowed money from their father in order to avoid taking out interest bearing loans and this was understood by there Father. In 1997 mediation to this dispute was carried out by the Fathers’ Brother. The outcome was such that all those who had contributed funds in the purchase of the property would have their names added in the title deeds to appease those elements within the family. A further outcome of the mediation was that father had agreed that the property was purchased by the 2 elder sons with their monies(30%), and the 70% provided by father was in order to avoid paying interest. It was also agreed that without the 2 brothers’ inspiration and effort the house would be non existent and none of the siblings would have been able to benefit. Legal documents were drawn up to add the names of father, mother and the elder brother in the title deeds. This can be confirmed by those who are privy to the mediation (still alive) as well as legal documents signed by our late Father. It must be stressed this event occurred in 1997 after the will was written, essentially addressing the point relating to ownership within the will which was being disputed. Mother and father continued to live in this property as all siblings eventually moved out. Father passed away in 2003. Mother passed away in 2019. As the property is now empty, some siblings are claiming that the property belonged wholly to our late father. They are claiming that the will dated 1996 which appeared 18 years later (2018) substantiates their claim. However, as stated above mediation occurred in 1997 addressing the misunderstanding regarding ownership. The elder brothers on the other hand are claiming that they purchased the property between themselves for joint ownership with the financial assistance from their father, by way of a loan. Documents and receipts do confirm this. In light of the above facts which can be fully substantiated with evidence the questions that we kindly need answering are as follows: 1) Given that that the original purchasers of the property maintain that they purchased the property explicitly for themselves with the help financially by their late father by way of loan (supported with robust evidence) - Who are the owners of the property according to Islam? 2) How should the proceeds of the property be distributed in light of the Shariah ruling on who the owners are? 3) What is the Shariah position on repaying the loan that father had given the sons? Could it be given back as equity in the property in proportion to the funds contributed even if it wasn’t purchased jointly, or must the principal amount be given? Also does agreement between the father and sons have to have taken place for the debt to be converted into equity? I humbly request guidance can be provided in light of Shariah. Jazakallah Khairan.

Answer

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

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

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Brother in Islam,

According to the information provided, the property belongs to the two elder brothers. If the property is sold, the proceeds will be shared between the two of them.[i]

The two brothers will have to repay the amount they took as a loan into the estate of the father, which in turn will be distributed amongst all his heirs. [ii][iii]

And Allah Ta’āla Knows Best

Mahmood Suliman

Student Darul Iftaa
Gaborone, Botswana

Checked and Approved by,
Mufti Ebrahim Desai.

________


[i] مجلة الأحكام العدلية (ص: 204)

(الْمَادَّةُ 1060) شَرِكَةُ الْمِلْكِ هِيَ كَوْنُ الشَّيْءِ مُشْتَرَكًا بَيْنَ أَكْثَرِ مِنْ وَاحِدٍ أَيْ مَخْصُوصًا بِهِمْ بِسَبَبٍ مِنْ أَسْبَابِ التَّمَلُّكِ كَالِاشْتِرَاءِ وَالِاتِّهَابِ وَقَبُولِ الْوَصِيَّةِ وَالتَّوَارُثِ أَوْ بِخَلْطٍ , وَاخْتِلَاطُ الْأَمْوَالِ يَعْنِي بِخَلْطِ الْأَمْوَالِ بَعْضِهَا بِبَعْضٍ بِصُورَةٍ لَا تَكُونُ قَابِلَةً لِلتَّمْيِيزِ وَالتَّفْرِيقِ أَوْ بِاخْتِلَاطِ الْأَمْوَالِ بِتِلْكَ الصُّورَةِ بَعْضِهَا بِبَعْضٍ. مَثَلًا: لَوْ اشْتَرَى اثْنَانِ مَالًا أَوْ وَهَبَهُ أَحَدٌ لَهُمَا أَوْ أَوْصَى بِهِ وَقَبِلَا أَوْ وَرِثَ اثْنَانِ مَالًا فَيَكُونُ ذَلِكَ الْمَالُ مُشْتَرَكًا بَيْنَهُمَا وَيَكُونَانِ ذَوَيْ نَصِيبٍ فِي ذَلِكَ الْمَالِ وَمُتَشَارِكَيْنِ فِيهِ وَيَكُونُ كُلٌّ مِنْهُمَا شَرِيكَ الْآخَرِ فِيهِ. كَذَلِكَ إذَا خَلَطَ اثْنَانِ ذَخِيرَتَهُمَا بَعْضَهَا بِبَعْضٍ أَوْ اخْتَلَطَتْ ذَخِيرَتُهُمَا بِبَعْضِهَا بِانْخِرَاقِ عُدُولِهِمَا فَتَصِيرُ هَذِهِ الذَّخِيرَةُ الْمَخْلُوطَةُ أَوْ الْمُخْتَلِطَةُ مَالًا مُشْتَرَكًا بَيْنَ الِاثْنَيْنِ

[ii]  الدر المختار وحاشية ابن عابدين (رد المحتار) (5/ 709) 

دَفَعَ لِابْنِهِ مَالًا لِيَتَصَرَّفَ فِيهِ فَفَعَلَ وَكَثُرَ ذَلِكَ فَمَاتَ الْأَبُ إنْ أَعْطَاهُ هِبَةً فَالْكُلُّ لَهُ، وَإِلَّا فَمِيرَاثٌ وَتَمَامُهُ فِي جَوَاهِرِ الْفَتَاوَى

[iii] الفتاوى الهندية  (2/ 301)

الْبَابُ الْأَوَّلُ فِي بَيَانِ أَنْوَاعِ الشَّرِكَةِ وَأَرْكَانِهَا وَشَرَائِطِهَا وَأَحْكَامِهَا وَمَا يَتَعَلَّقُ بِهَا وَفِيهِ ثَلَاثَةُ فُصُولٍ الْفَصْلُ الْأَوَّلُ فِي بَيَانِ أَنْوَاعِ الشَّرِكَةِ الشَّرِكَةُ نَوْعَانِ شَرِكَةُ مِلْكٍ وَهِيَ أَنْ يَتَمَلَّكَ رَجُلَانِ شَيْئًا مِنْ غَيْرِ عَقْدِ الشَّرِكَةِ بَيْنَهُمَا، كَذَا فِي التَّهْذِيبِ وَشَرِكَةُ عَقْدٍ وَهِيَ أَنْ يَقُولَ أَحَدُهُمَا شَارَكْتُكَ فِي كَذَا وَيَقُولُ الْآخَرُ قَبِلْتُ، هَكَذَا فِي كَنْزِ الدَّقَائِقِ وَشَرِكَةُ الْمِلْكِ نَوْعَانِ: شَرِكَةُ جَبْرٍ، وَشَرِكَةُ اخْتِيَارٍ فَشَرِكَةُ الْجَبْرِ أَنْ يَخْتَلِطَ الْمَالَانِ لِرَجُلَيْنِ بِغَيْرِ اخْتِيَارِ الْمَالِكَيْنِ خَلْطًا لَا يُمْكِنُ التَّمْيِيزُ بَيْنَهُمَا حَقِيقَةً بِأَنْ كَانَ الْجِنْسُ وَاحِدًا أَوْ يُمْكِنُ التَّمْيِيزُ بِضَرْبِ كُلْفَةٍ وَمَشَقَّةٍ نَحْوُ أَنْ تَخْتَلِطَ الْحِنْطَةُ بِالشَّعِيرِ أَوْ يَرِثَا مَالًا وَشَرِكَةُ الِاخْتِيَارِ أَنْ يُوهَبَ لَهُمَا مَالٌ أَوْ يَمْلِكَا مَالًا بِاسْتِيلَاءٍ أَوْ يَخْلِطَا مَالَهُمَا، كَذَا فِي الذَّخِيرَةِ أَوْ يَمْلِكَا مَالًا بِالشِّرَاءِ أَوْ بِالصَّدَقَةِ، كَذَا فِي فَتَاوَى قَاضِي خَانْ أَوْ يُوصَى لَهُمَا فَيَقْبَلَانِ، كَذَا فِي الِاخْتِيَارِ شَرْحِ الْمُخْتَارِ، وَرُكْنُهَا اجْتِمَاعُ النَّصِيبَيْنِ، وَحُكْمُهَا وُقُوعُ الزِّيَادَةِ عَلَى الشَّرِكَةِ بِقَدْرِ الْمِلْكِ، وَلَا يَجُوزُ لِأَحَدِهِمَا أَنْ يَتَصَرَّفَ فِي نَصِيبِ الْآخَرِ إلَّا بِأَمْرِهِ، وَكُلُّ وَاحِدٍ مِنْهُمَا كَالْأَجْنَبِيِّ فِي نَصِيبِ صَاحِبِهِ وَيَجُوزُ بَيْعُ أَحَدِهِمَا نَصِيبَهُ مِنْ شَرِيكِهِ فِي جَمِيعِ الصُّوَرِ وَمِنْ غَيْرِ شَرِيكِهِ بِغَيْرِ إذْنِهِ إلَّا فِي صُورَةِ الْخَلْطِ وَالِاخْتِلَاطِ، كَذَا فِي الْكَافِي

الدر المختار وحاشية ابن عابدين (رد المحتار) (4/ 304)

فَإِنَّهُمَا لَوْ وَرِثَا أَرْضًا لَا يَجُوزُ أَنْ يَبِيعَ أَحَدُ الْوَارِثِينَ حِصَّتَهُ مِنْ الْأَرْضِ مِنْ غَيْرِ شَرِيكِهِ إلَّا بِإِذْنِهِ

التعريفات الفقهية (ص: 62)

التمليك: هو جعل الرجل مالكاً وهو على أربعة أنحاء: الأول: تمليكُ العين بالعوض وهو البيعُ، الثاني: تمليكُ العين بلا عوض وهي الهبة، والثالث: تمليكُ المنفعة بالعوض وهي الإجارةُ، والرابع: تمليكُ المنفعة بلا عوض وهي العاريةُ

الجوهرة النيرة على مختصر القدوري (1/ 285)

فَشَرِكَةُ الْأَمْلَاكِ: الْعَيْنُ يَرِثُهَا الرَّجُلَانِ، أَوْ يَشْتَرِيَانِهَا) ؛ لِأَنَّ هَذِهِ أَسْبَابُ الْمِلْكِ وَكَذَا مَا وُهِبَ لَهُمَا، أَوْ أُوصِيَ لَهُمَا بِهِ فَقَبِلَاهُ وَكَذَا إذَا اخْتَلَطَ مَالُ كُلِّ وَاحِدٍ مِنْهُمَا بِمَالِ صَاحِبِهِ خَلْطًا لَا يَتَمَيَّزُ. (قَوْلُهُ: وَلَا يَجُوزُ لِأَحَدِهِمَا أَنْ يَتَصَرَّفَ فِي نَصِيبِ الْآخَرِ إلَّا بِإِذْنِهِ وَكُلُّ وَاحِدٍ مِنْهُمَا فِي نَصِيبِ صَاحِبِهِ كَالْأَجْنَبِيِّ) لِأَنَّ تَصَرُّفَ الْإِنْسَانِ فِي مَالِ غَيْرِهِ لَا يَجُوزُ إلَّا بِإِذْنٍ أَوْ وِلَايَةٍ

كتاب النوازل 131\18

كتاب النوازل 133\

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