Division of estate that sons contributed to building with their father
20-12-2015 | IslamWeb
Question:
Respected Sir, I have two points to ask with respect to our joint family dispute: 1. We are three brothers with the same parents, and all of us are married and employed with different employers. We have two houses, one being constructed by our father, and for the other house, the contribution of one brother is 70%, and the remaining contribution was by the other two brothers and the father. Till now, we have a joint family, but all three of us never handed over our salaries to our father. Now my question is: how should this property be distributed? 2. Our younger brother is not satisfied with the joint family now and wants to live separately, but he is demanding for the provident funds and even the savings of any from the brothers who contributed more than 60% and wants to distribute the same among the three brothers. My question is: is it right to ask a brother for his money, which he may or may not have, as he always contributed with open heart and mind making everybody comfortable at every given point of time? I will be highly obliged to have the answer in view of the Quran and the Sunnah.
Answer:
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.
With regard to the house built by your father, it should be divided between all the heirs according to the Islamic Law of inheritance. If the house cannot be practically divided between the heirs – as is the case in general – and one of them demanded his share in it and this cannot be achieved except by selling the house, then the house must be sold, and then its price should be divided between the heirs according to the sharee'ah, each according to his legitimate share.
Shaykh Ibn Taymiyyah said, “The entity that cannot be divided if one of the partners asks it to be sold and to divide its price, then it should be sold and its price should be divided. This is the view reported by Imaam Ahmad from the narration of al-Maymooni, and it is the view held by the majority of the scholars from Imaam Ahmad’s School.”
Concerning the house built by one of the sons at 70 % and the father and two other sons completed it, then if they had built it with the intention of being partners in it and not as a donation for their father, then the share of each one of them in it is according to the share of his participation in its construction.
The remainder (which is the share of the father) is common between the heirs and should be divided between them according to the sharee'ah.
But if they did that as a donation for their father, then in that case the whole house becomes the property of the father and, therefore, after his death, it should be divided between all heirs each according to his legitimate share.
The Fataawa of the Standing Committee reads, “With regard to what you mentioned concerning your spending on your father's house, then if you did so with the intention of donating at the time of spending on it, then Allaah will reward you and you cannot ask your father to recompense you for it. But if you spent on the house with the intention of asking your father to reimburse you later for doing so, then you can ask him that.”
From the above, you should know that the younger brother has no right to ask that the two houses be divided evenly unless the two belonged to the father before his death, as we have already mentioned.
However, he has the right – in any case – to ask that the inheritance be divided and to obtain his share in it, and the remaining heirs should accept this.
Also, the heirs may agree to pay his share from the two houses, and they may recompense him with something instead of his share, be it even outside the inheritance if he is pleased with it. This is called mukhaarajah. The book entitled Al-Fiqh Al-Islami wa Adillatih (Islamic jurisprudence and its evidence) in the Chapter titled Takhaaruj reads:
“It is when the heirs reconcile to leave out some of them from the inheritance in return for something known in the inheritance or outside it. This is a contract to recompense one of the heirs for his share in the inheritance, and the other recompense is a known amount of money that is paid to the heir who is taken out of the inheritance. This contract is permissible if all the heirs agree to it. So if the heir has been given a known compensation, then he does no longer possess his share in the inheritance as it is left to the rest of the heirs with whom he agreed…”
In this case, the compensation is not paid by one heir only apart from the others, unless the one who pays willingly agrees to do so.
Finally, it should be noted that the matter of inheritance is a very complex issue, so a mere fatwa, which is an answer issued by a mufti without thoroughly investigating the question, is not enough. Therefore, you should orally ask reliable scholars about matters of inheritance or resort to an Islamic court, if available, or to whoever act on its behalf in your country.
Allaah knows best.