Q322 :When my grandfather suffered a business
setback, he was left only with a small vegetable shop that he owned and
a small flat that he rented. From a young age, my father worked hard,
helping his father in earning the livelihood for his family. He then
took over all the business when his father could not carry on. He
managed to marry off all his five sisters. About fifteen years ago a
state government in India passed a regulation which made tenants the
ultimate owners of two-thirds of the rented premises. If the property
is to be sold, only one-third goes to the landlord and two-thirds of
the sale proceeds go to the tenant. Now my father is thinking of moving
to a better residence by selling this small flat and using the money
for the purchase of the new property. We put the case to a scholar in
our locality who said that since my father continued to pay the rent
and take care of the family, he is entitled to retain the price of the
flat and the shop. My aunts are not aware of this. May I ask you
whether they are entitled to shares of the proceeds of the sale of this
flat and shop?
A322 : The first thing to be said about this
question is that governments may promulgate certain laws which they
deem to be useful to the netmunity in order to address a certain
problem or redeem some imbalance. When a law is in direct conflict with
Islamic teachings, Muslims must try not to take advantage of that law,
putting the blame for gaining certain illegitimate benefits on the
authority that had promulgated the law. It is often the case that a
law is tailored to try to gain some popular support for the government.
It does not look at the question of right and wrong in any broad sense.
Its purpose is simply to make the government more popular. An example
may be provided by the tenancy regulations issued in a Middle Eastern
country over a long period of time. Successive regulations prevented
from raising the rent. As a result, tenants continue to pay today the
same rent they agreed with their landlords forty or fifty years ago. At
that time, the rent was fair. Now it is worthless. The property is
still of great benefit to the tenant but is no longer of any benefit to
the landlord who is the actual owner. Such regulations are unjust, but
governments continue to be most reluctant to change them, because the
change will not be popular. This is not an isolated case. Similar
examples can be found in many countries of the Muslim world. An unjust
law or regulation does not give any legitimate right to the party who
benefits by such a legislation. A government may issue an order saying
that if a tenant has paid the rent of a property for so many years, he
benetes its owner. Such a law has no validity in Islam, because the
tenancy agreement did not provide for a possibility of converting the
rent into a sale price. The case may be different if it is clearly
stipulated at the beginning that the tenancy will eventually end in a
sale of the property. The law of the country or of the state would then
benete applicable to such tenancy agreements and its provisions benete
part of the agreement itself. But to say that past agreements are
changed as a result of a subsequent law is totally unfair and
unacceptable in Islam. I will give you a clearer case than yours.
Suppose that a landlord of a property dies having no children, wife,
parents or indeed any relations whomsoever. Suppose also that he had
rented a shop or a flat he had owned to a particular person who paid
the rent regularly for more than thirty or forty years. If both people
were in your state in India, the local regulation would give that
tenant the status of owner of two-thirds of that property. That
ownership is not valid from the Islamic point of view, because it does
not nete about as a result of a sale agreement between seller and
buyer, or as a result of a gift from owner to tenant, or as a result of
inheritance by will or by Islamic system of inheritance. These are the
only legitimate methods of transfer of ownership. I hope the foregoing
makes clear the question of the ownership of this small flat which your
father has had on rent for many years and his father rented before him.
The state government might have issued any law, but your father is not
the owner of two-thirds of that flat. That flat is owned by the
landlord only. Your father may wish to nete to some sort of an
agreement with him about buying the flat at a reasonable price, but
that should be a new agreement, regardless of the unjust law of the
state. If the landlord agrees to sell it to your father at a reduced
price, then it benetes the property of your father and your aunts will
have no share in it. The case of the shop is different, because it was
the property of your grandfather who died only a few years back. The
fact that your father had been working there for such a long time gives
him some special status, but not with regard to ownership of the shop.
It remained the property of your grandfather and, as such, it formed a
part of his estate. All his heirs had shares in it. I understand that
your grandfather was survived by his widow, one son and five daughters.
Therefore, his property is divided in this way: One eighth of all his
property goes to your grandmother, the remaining portion of
seven-eighths of the whole property is divided into seven portion with
two of these portions going to your father and one portion to each of
your five aunts. To make things simpler, the whole property could be
divided into twenty four parts, with three parts going to your
grandmother. The remaining twenty one parts form the inheritance of
your grandfather’s, with your father receiving six parts and each of
your aunts receiving three parts. This division applies to the shop
itself and the part of the business which was owned by your
grandfather. If your father had any portions of the business as his own
property, then the division does not apply to that. Since your father
has been working in the shop for a long time, your aunts are entitled
to receive from him rent of their shares in that shop. It may be that
your father has spent so much on his sisters, and perhaps he has helped
in their marriages. He may speak to them, explaining that each of them
has such a portion of the shop. Either he would buy it from them or pay
them rent. They should nete to some agreement with regard to the
ownership and the rent, without pressure. If any of them decides to
retain her portion and requests rent from your father, he should pay
her any agreed rent. The fact that he supported them in the past should
not affect that situation. Whatever agreement they may nete to must be
amicable. His support to them will ensure great reward for him from
God. He should be keen to retain that reward by ensuring that each one
of his sisters receives her full share of the inheritance from their
father.
Our Dialogue ( Source : Arab News – Jeddah )