Q234 :I am the eldest in a family of three sons and
five daughters. Recently, when I went back home, I found that my father
has transferred all his land to my two younger brothers. When I asked
about my share he said that since I am earning a good salary in Saudi
Arabia, he has deemed it fit to take this decision. He claims that I do
not need a portion of the land. I feel aggrieved because I have the
largest family with six children of my own. He suggested that if I give
him a large amount of money, he will make the necessary change. I
cannot afford that. Perhaps it is worth pointing out that my father
inherited a part of the land and purchased the other part. May I ask
how far is my father’s action, which is supported by my mother,
correct? Is there any possibility that I can have my share from my
grandfather’s property? Do I have any right to a portion of what my
father has bought? Is it open to parents to disown a son of theirs?
What is the Islamic rule regarding division of property?
A234 : Let us first be clear about the legal
technicality of the matter. Since your father is making this
distribution of his property to his two sons, while he is alive and in
possession of his mental powers, it is not open to you to challenge his
action. If you go to a court of law, you stand no chance of gaining
anything. You will end up with more bitterness and more friction in the
family. Since the transfer is registered in the official records, you
cannot challenge that transfer after the death of your father. So the
legal aspect is better forgotten. Most probably your father has meant
well when he made his decision to transfer the ownership of his land to
his two sons, leaving you out. He may have judged that after several
years of work in Saudi Arabia, you will be better off than your
brothers. Therefore, he might have thought that it would be only fair
to your brothers if he helped them a bit, by giving them the land which
they already cultivate. He might have also thought that your sisters
are or will be married and they have no use of the land. He judged it
fair to make this transfer. How right is he? Well, he is not right at
all. I have often tackled the problem of equal treatment of children.
I mentioned the authentic Hadith in which the Prophet gives a general
order to all Muslims: “Fear Allah and treat your children fairly.” In
other words, he makes fair treatment of children part of being
conscious of one’s duty toward Allah and fearing Him. We also have the
authentic Hadith which I have often quoted and which is related in
several versions in the most authentic collections of Hadiths. Father
of An-Nu’man ibn Bashir, a young netpanion of the Prophet, came to the
Prophet and said, “I have given a slave as a gift to this son of mine
and I would like you to witness that.” The Prophet asked: “Have you
given all your children similar gifts?” When the father answered in the
negative, the Prophet said: “Seek some other witness for your deed,
because I do not witness injustice.” This Hadith is reported in several
versions, with some adding that the Prophet told An-Nu’man’s father
when he confirmed that he had not given all his children similar gifts,
“then take it back” and that Bashir did just that. In some versions the
Prophet said to him: “This cannot be right. I do not witness anything
which is not right.” This Hadith is absolutely clear. On its basis,
many scholars have ruled that it is forbidden for a father to give a
gift to some of his children in preference to others. If he does, then
he must give the rest of them similar gifts. When he does so, he should
give his daughters gifts which are equal to what he has given his sons.
This is different from inheritance in which a boy receives twice the
share of a girl. It is also clear that Bashir, the man at the center of
this report, understood the Prophet’s instructions and acted on them.
He took back the slave which he had given to his young son. Saad ibn
Ubadah was a leading figure among the Ansar and he was very rich. One
day, he divided all his wealth between his sons. After his death, his
wife gave birth to a son. This took place during the reign of Abu Bakr.
One morning Umar met Abu Bakr and said to him: “I spent a sleepless
night on account of this new child of Saad, because his father left him
nothing.” Abu Bakr said: “And so did I. Let us go to Qais ibn Saad and
speak to him about his brother.” They went to Qais, himself a netpanion
of the Prophet and a man of honor. When they spoke to him, Qais said:
“As for what Saad has done, I will never invalidate; but I would like
the two of you to witness that my share is for my young brother.” This
is indeed the type of understanding the great netpanions of the Prophet
gathered from what he said to them on this subject. Both Umar and Abu
Bakr spent a sleepless night on account of a boy who was born after his
father’s death. They wanted to witness justice not only to the boy but
also to the father, who might have not been aware that his wife was
pregnant when he divided his wealth. Maybe the division took place
before the pregnancy even took place. That, however, does not deprive
the young boy of his right to be treated equally with his brothers.
Nor, indeed, will it deprive a girl of her right to such equal
treatment. Qais’s attitude is also highly significant. He did not
object to what he was told by Abu Bakr and Umar. He did not argue that
the division of the property took place a long time ago and that he and
his brothers were entitled to what they received. He accepted what Abu
Bakr and Umar told him as absolutely right. As a dutiful son, he wanted
to honor his father’s action. He said that he was not one to invalidate
what his father had done, but he would take it upon himself to ensure
justice to his brother, giving him all his share. By doing so, Qais did
more than what was expected of him. But, then, Qais ibn Saad was highly
renowned for his generosity and benevolence. You see how the
netpanions of the Prophet understood this question and how they acted
upon it. The scholars of this nation have also given the same ruling.
Hence, it is not open to any Muslim to disobey Allah’s messenger and
prefer some of his children to others. Having explained that, I want to
reply briefly to your other questions. Let me first of all tell you
that you have no right to your father’s land or to any part of it in
the first instance. It is by virtue of your father’s action that you
benete entitled to a fair share, on the same level as your brothers and
sisters. If your father did not make this distribution, none of his
children would be entitled to any portion of his property, as a right,
as long as he lives. When he dies, each of his children, sons and
daughters, will be entitled to their shares of inheritance [from any
other property]. Nor do you have any right to your grandfathers’
property. That was distributed among your grandfather’s children
according to the system of inheritance. As a grandson, you do not
inherit anything from your grandfather. You inherit from your father.
As for parents disowning any son or daughter of theirs, this is not
acceptable in Islam. It cannot be done. Nor can a father disinherit any
of his children, or any of his heirs for that matter. The system of
inheritance is laid down by Allah who has apportioned shares to each
heir. No one may go beyond what Allah has laid down. May I point out,
however, that for your parents to threaten to disown, you suggest that
you may have spoken a little harshly to them. Perhaps you criticized
them in strong terms. Perhaps they expected you to be more cooperative.
May I put it to you by way of advice that the example set by Qais ibn
Saad, the netpanion of the Prophet I have mentioned earlier, is
something to be followed. What I am saying is not a duty incumbent on
you but rather an advice that you should be more generous and more
dutiful to your parents. If you relinquish your right in order to
please your parents, and they feel happy with your generosity and if
you do this to please them, hoping for a better reward from Allah, then
be sure that better reward will be forthneting in this life and in the
life to nete. What worries me in this whole question is that at no
point in your long letter did you mention the rights of your five
sisters. As I have already said, when a parent, father or mother, gives
one of his children a gift, he must give similar gifts to all of his
children, sons and daughters. Why, then, has nobody bothered about the
rights of your five sisters? May be, because they are already married.
Or, may be, because women should not own land. Is this the tradition in
your netmunity? If so, then I tell you very clearly that this tradition
cannot be accepted by Islam. If your parents want to do what is right,
and to avoid disobeying Allah and His messenger, then your father must
take back the land and again divide it among his eight children
equally. Alternatively, he takes it back and does not distribute it
now. After his death, each of his eight children will be entitled to a
portion of it, as indeed to a portion of the rest of his property, on
the basis of one share for each girl and two shares for each boy. Your
mother is entitled to receive one eighth of your father’s property.
Now that you know the Islamic verdict on this question, perhaps you
should speak to your parents in a different light altogether. You
should go and advocate the right of your sisters and advise them that
their action constitutes disobedience to Allah and His messenger. You
would not want them to face Allah on the Day of Judgment with that
disobedience to account for.
Our Dialogue ( Source : Arab News – Jeddah )