The Ruling on a Particular Case of Loan

Respected scholars and honorable Muftis, what is the ruling regarding the following issue that my mother owned a personal plot of land which my father had purchased for her, and she had been given full possession of it. My uncle also owned a similar plot. When my mother sold her plot, an arrangement was made between my uncle and my father that half of the proceeds would go to my uncle and half to my mother. Furthermore, it was agreed that when my uncle sold his plot, he would give half of that amount to my mother. At the time when this arrangement was made, my father was abroad. The discussions took place individually over the phone sometimes between my father and my uncle, and at other times between my father and my mother. However, there was never a time when all three parties spoke together face-to-face. Even when my father returned from abroad, no joint meeting ever took place. Now, my father passed away a year ago. The plot was entirely in my mother’s name, her personal ownership, and she had all the documents in her possession. When the sale of her plot was finalized, she went along with my uncle to sign the necessary papers. At present, my uncle wishes to sell his own plot. He is not denying anything from the past, nor is he making any claims. He says that throughout the entire matter from the sale of the plot to the distribution of the proceeds his dealings were with my father. He gave half the money to my mother only at my father’s instruction. Now my uncle is in a state of uncertainty. He says: since my late brother (my father) was the one who made the arrangement with me regarding the sale of my sister-in-law’s plot, does this mean that when I now sell my own plot, half of the proceeds should be treated as belonging to my late brother and therefore distributed among his heirs, or should the money go directly to my sister-in-law (my mother)?
Kindly provide the correct Shar‘i ruling on this matter. Your guidance will be sincerely appreciated.

الجوابُ حامِدا ًو مُصلیِّا ً

If the questioner’s mother and uncle had not established any partnership in their respective plots, then the amount that the mother gave to her brother-in-law (the questioner’s uncle) from the sale of her plot at the instruction of her husband will be regarded as a loan from the mother to the uncle. According to the Shari principle of loans, whatever amount is taken as a loan must be returned in full by the borrower. Therefore, in the present case, although the uncle had discussions with his brother (the questioner’s late father), since the money was actually given to him by the mother, it is the uncle’s responsibility to return that amount to her. This money will not be counted as part of the late father’s inheritance; rather, it will be regarded as the personal property of the mother.

مأخَذُ الفَتوی

کمافی الشامیۃ: وإن استقرض دانق فلوس أو نصف درهم فلوس، ثم رخصت أو غلت لم يكن عليه إلا مثل عدد الذي أخذه، وكذلك لو قال أقرضني عشرة دراهم غلة بدينار، فأعطاه عشرة دراهم فعليه مثلها، ولا ينظر إلى غلاء الدراهم، ولا إلى رخصها، وكذلك كل ما يكال ويوزن فالقرض فيه جائز، وكذلك ما يعد من البيض والجوز اهـ وفي الفتاوى الهندية: استقرض حنطة فأعطى مثلها بعدما تغير سعرها يجبر المقرض على القبول اھ(5/162)۔
وفی الھندیة: (الباب السابع والعشرون في القرض والدين) والقرض هو أن يقرض الدراهم والدنانير أو شيئا مثليا يأخذ مثله في ثاني الحال، والدين هو أن يبيع له شيئا إلى أجل معلوم مدة معلومة كذا في التتارخانية.اھـ(5/366)۔