Fatwa No : 84755
the mother and brothers spent money in purchasing a property, would they be considered partners in it?”

the mother and brothers spent money in purchasing a property, would they be considered partners in it?”

In the name of Allah, the Most Gracious, the Most MercifulRespected Mufti Sahib,
A house measuring 133 square yards in the name of the deceased mother, whose market value is between 10 million to 12.5 million rupees, and whose official value is 6 to 7 million rupees. The heirs of the mother include the husband, 2 sons, and 2 daughters. One of the daughters approached the court for her share. The court has ordered the brothers residing in the house to give the sister her share or sell the house and pay her share. What are the Islamic-law shares of the daughters, sons, and the husband in this house?
(Note): The father of the questioner, Mr. Allah Wasaya, was summoned to the Darul Ifta. He came and explained the entire situation: He said that he actually purchased the house himself. He sold an ancestral house in his hometown, and combined the amount received from that sale with whatever savings he had, but still the full price of the new house could not be covered. His wife, who worked as a seamstress, contributed whatever income she received from sewing, and even gave her jewelry toward the purchase of the house. However, she never made any statement specifying that the money she was giving was a loan on him, nor that she intended to be a partner in the property in proportion to her contribution.
It should be noted that the house was not livable at the time of purchase. For its construction, the father took some loans, which he repaid from his salary. The sons also spent from their earnings on construction, and likewise, the wife continued to give whatever she could from her own income. The father stated that he was the head of the household, and everyone lived together under his supervision. However, the house documents were registered in the wife’s name. He is still living in this house, and the children are also living with him. The wife lived with him until her death.
He also stated that he had already given both daughters their rightful shares, and that he had purchased a flat for the daughter who filed the case. He educated and supported her son until he got a job. The flat given to her cost 2.8 million rupees. It should also be clarified that the amounts the sons contributed for the house construction or loan repayment were not declared as loans nor was any repayment demanded by them.

الجوابُ حامِدا ًو مُصلیِّا ً

According to the statement of the questioner’s father, the mentioned house belongs to the father, because when the house was purchased, the money given to him by the questioner’s late mother and other siblings was not given under any agreement regarding partnership or ownership in the property. Neither was it specified as a loan nor was the return of that money clarified. Therefore, the amount given by the questioner, his siblings, and his late mother will be considered a voluntary gift and favor to the father.
If, after purchasing the said house, the father only registered the house in his wife's name without actually giving her full ownership rights or possession—as is evident from the question—then such a gift (hiba) is not considered complete in Islamic law. Thus, the house did not legally become the property of his wife; rather, it still remains the property of the father. For this reason, it is not permissible for any of the children to make any claims over it during the father’s lifetime, and they must refrain from doing so.
Therefore, the questioner’s sister approaching the court is not correct. However, if the father, out of his own free will and without any pressure, wishes to distribute his property among his children during his lifetime, this is permissible and valid. This is not considered distribution of inheritance (tarika), but rather a hiba (gift). The best and preferable method is that the father sets aside whatever he reasonably needs for himself and then distributes the remainder of his property equally among all his children, giving each one actual possession of their share so that the hiba (gift) becomes valid and complete according to Islamic law.
It is further recommended that while giving this gift, he treat all his children equally and not give one more or less than the other, as all are his children. However, if he wishes to give more to a son or daughter due to their service, need, or piety, he is permitted to do so. But without a valid Shar‘i reason, he must not deprive any rightful heir of his property, as this is considered sinful.

مأخَذُ الفَتوی

كما في الفتاوى الهندية: ومنها أن يكون الموهوب مقبوضا حتى لا يثبت الملك للموهوب له قبل القبض اھ (4/ 374)۔
وكما في الدر المختار: (وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) والأصل أن الموهوب إن مشغولا بملك الواهب منع تمامها وإ ن شاغلا لا، (5/ 690)۔
و فيه ايضاً و في الدر المختار: و في الخانية لا بأس بتفضيل بعض الأولاد في المحبة لأنها عمل القلب، وكذا في العطايا إن لم يقصد به الإضرار، وإن قصده فسوى بينهم يعطي البنت كالابن عند الثاني وعليه الفتوى اھ (5/ 696)۔
و فى الفتاوى الهندية: ولو وهب رجل شيئا لأولاده في الصحة وأراد تفضيل البعض على البعض (إلی قوله) لا بأس به إذا لم يقصد به الإضرار وإن قصد به الإضرار سوى بينهم يعطي الابنة مثل ما يعطي للابن وعليه الفتوى هكذا في فتاوى قاضي خان وهو المختار كذا في الظهيرية اھ (4/ 391)۔
وكما في الدر المختار: (وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) والأصل أن الموهوب إن مشغولا بملك الواهب منع تمامها وإ ن شاغلا لا، (5/ 690)۔
و في خلاصة الفتاوى: رجل له ابن وبنت اراد ان يهب لهماشيئاً فالأفضل أن يجعل للذكر مثل حظ الانثيين عند محمد، وعند أبي يوسف بينهما سواء هو المختار لورود الآثار ، ولو و هب جميع ماله لابنه جاز فى القضاء وهوإثم نص عن محمد هكذا في العيون - اھ (۴/400)۔