The father has to be just and fair between his children in terms of giving, because of the report narrated by al-Bukhaari (2586) and Muslim (1623) from al-Nuâmaan ibn Basheer, who said that his father brought him to the Messenger of Allaah (blessings and peace of Allah be upon him) and said: I have given this son of mine a slave that belonged to me. The Messenger of Allaah (blessings and peace of Allah be upon him) said: âHave you given a similar gift to all your children?â He said: No. The Messenger of Allaah (blessings and peace of Allah be upon him) said: âThen take it the gift back.â
According to a version narrated by Muslim (1623), the Messenger of Allah and peace of Allah be upon him) said: âO Basheer, do you have any other children?â He said: Yes. He said: âHave you given to all of them like you have given to this one?â He said: No. He said: âThen do not ask me to bear witness for I will not bear witness to injustice.â
If the father goes against that and shows preference among his children, then the children have to make it fair and just, and they have to re-divide it as prescribed by Allah.
The Standing Committee for Issuing Fatwas was asked: Is it permissible for the father to register a farm in the name of one of his sons and leave out the rest of his children? My father registered a farm in my name, leaving out my sister and my younger brother. Should I sponsor these children or not?
They replied: The father should treat these children fairly in terms of giving, according to the shares of inheritance prescribed in Islam. It is not permissible to single out some of them to the exclusion of others, because the Prophet (blessings and peace of Allah upon him) forbade that. It was narrated from al-Nuâmaan ibn Basheer (may Allah be pleased with him) that his father brought him to the Messenger of Allaah (blessings and peace of Allah be upon him) and said: I have given this son of mine a slave that belonged to me. The Messenger of Allaah (blessings and peace of Allah be upon him) said: âHave you given a similar gift to all your children?â He said: No. The Messenger of Allaah (blessings and peace of Allah be upon him) said: âThen take it the gift back.â Agreed upon.
Based on that, your father has to correct what he did of giving to some of his children, by giving each of his sons something like he gave to the son mentioned, or by taking back the gift from him. If your father has died, then you should divide the estate between you and the rest of the heirs according to the sharâi ruling. End quote.
Shaykh âAbd al-âAzeez ibn Baaz, Shaykh âAbd-Allah ibn Ghadyaan, Shaykh Saalih al-Fawzaan, Shaykh âAbd al-âAzeez Aal al-Shaykh, Shaykh Bakr Abu Zayd.
Fataawa al-Lajnah al-Daaâimah, 16/216.
If your maternal uncle did not do that on the basis that it was a gift, as you mentioned, and he retained possession of the properties during his lifetime, and he only registered them in the names of his children so as to avoid taxes, then these properties still belong to your uncle. If he died, then they must be divided among the heirs according to the sharâi rulings on division of the estate.
To sum up: the sons have to re-divide the estate, whether the properties are regarded as gifts or a bequest or neither. Rather they are an estate that the father apparently registered in the names of his sons, but he intended to reregister them in his own name.
What you have to do is to advise the sons and remind them of the command of Allah and the rights of their sisters, and tell them that they should beware of injustice and consuming peopleâs wealth unlawfully, because whoever seizes land the size of a handspan unlawfully, it will be like a yoke around his neck to the depth of seven earths on the Day of Resurrection. What is the value of the written documents if the owners know that their father did not intend to give them possession thereby; rather if he wanted to give them possession he would have been unjust and they would have to re-divide the wealth.
Allah has explained how the estate is to be divided (interpretation of the meaning):
âThese are the limits (set by) Allaah (or ordainments as regards laws of inheritance), and whosoever obeys Allaah and His Messenger (Muhammad صلى الله عليه وسلم) will be admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be the great success.
14. And whosoever disobeys Allaah and His Messenger (Muhammad صلى الله عليه وسلم), and transgresses His limits, He will cast him into the Fire, to abide therein; and he shall have a disgraceful tormentâ
al-Nisaâ 4:13, 14.
We ask Allah to guide them and enable them to be just and fair.
And Allah knows best.