Respected Mufti saheb Assalamu Alaikumm A Father has four sons ( A B C D ) and four daughters ( 1 2 3 4 ) all are married, long back father has purchased a house in Hyderabad in the name of his eldest son (A). in 1986 father has gone to HAJJ , at that time he transfer the house in the name of his wife (through “HIBANAMA”) . Father has dies in the year 1994 and his second son (B) has died in the year 2000 and mother has died in the year 2003. Now the eldest son (A) is legal owner of that house (but actually the house if purchased by his father’s money). Now the eldest son wants to distribute that house among all the sons and daughters. Please give advice (according to shariat) how to distribute this house. In the year 1990 the family has came to know that father’s second son (B) has been married secretly long back and the present wife is his second wife (who died in 1990) his first wife stays in the same city. Note :- Please advise (according to shariat) that late second son’s (B) children will get the share from this house or not. His first wife’s children will get the share from this property or not. (before 1990 no body knows about his first marriage, he never told to any body (his parents also) about his first marriage. No body knows where the HIBANAMA is.

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad is His slave and Messenger. We ask Allaah to exalt his mention as well as that of his family and all his companions.

Our answer to your questions will be summarized in the following:

1-     The father registering the house in the name of his son is not permissible according to the preponderant view of the scholars if this was a gift. Therefore, this gift is not valid because favoring and preferring some children over others is wrong and an injustice; in this regard please refer to Fataawa 83266 and 91269.  

2-     The father transferring the property of the house to the name of his wife is considered as taking back his gift from his eldest son- if we presume that he gifted it to him in the first place- and it is known that it is permissible for a father to take back the gift he offered to his children as the Prophet said: "It is not permissible for anyone to give a gift and take it back except a parent from his children." [At-Tirmithi and An-Nasaa'i]. Therefore, by transferring the house to the name of his wife, it is considered as a gift to her unless there is no evidence which proves this gift, or it is known that the father did so without really intending to gift it for her but to avoid paying taxes and the like.   

3-     If the father intended to gift the house to his wife and the wife had possessed the house while her husband was still alive and she acted as an owner would in his property, then the house became her property and it should be divided among her heirs. If she has no other heirs except those who were mentioned in the question, then the inheritance should be divided into 10 shares, each of the three sons who were alive when their mother died will get two shares and each daughter will get one share. The son who died before her and his children have no share in the inheritance. 

4-     If the mother did not possess the house during the life of her husband, then the house is not considered as a gift and in this case the house is a property of the heirs of the father, and there is no consideration for the house remaining on the name of the eldest son, as we already explained. In this case the wife will get one-eighth of the inheritance, and the rest will be divided among the children, the males twice the share of the females including the son who died after the death of his father. The share of this son who died after the death of his father will be transferred to his heirs: his two wives and his children from both wives. The fact that he married one of them secretly does not deprive her and her children from the right of inheritance. However, if one of the two wives had died before him, then she has no right in the inheritance but her children will inherit their father.

Finally, we advise you to take the matter to an Islamic court so that it will look into the matter of inheritance and specify the heirs and those who have no right in the inheritance as a mere Fatwa which is issued according to a question, which could lack some important details, is not enough.

Allaah Knows best.