An Islamic Perspective on Family Rights: A Wife’s Duties & A Father’s Property
As-salamu alaykum wa rahmatullahi wa barakatuh.
A close brother of mine has sought clarification. At his home live his parents, two sisters, and two brothers. He has incurred a debt of 7 lakhs, and there is currently no way to repay it because the brothers are married and the sisters are also married. The father’s view is that he should sell the house to pay off the debt. He also wants to give everyone their share. So, I want to know, since there are two brothers and two sisters, and all of us are married, how should our parents divide the shares? What is the ruling of Sharia in this matter? It would be a great kindness to clarify. How would the parents’ share also be divided? The father says his financial situation is not good, so they should sell the house and divide the shares. So I need to know how the shares of the parents, sons, and daughters will be divided. Please clarify in the light of Hadith.
For instance, the debt is 7 lakhs, which needs to be paid. The house’s value today is 20 lakh in Indian currency. Now I need to know, according to Sharia, what will be the share of the parents, the sons, and the sisters?
وَعَلَيْكُمُ السَّلاَمُ وَرَحْمَةُ اللهِ وَبَرَكَاتُهُ
Your question, as it stands, is incomplete, dear brother.
If what you mean is:
A house is valued at 20 lakhs. The owner of the house, meaning the person in whose name the house is registered, is the father. The father has a debt of 7 lakhs, and he wants to repay it but does not have the cash to do so. Now he wants to sell the house to clear the debt, and he also wants to distribute the remaining amount—that is, 13 lakhs after deducting the 7 lakh debt from the 20 lakh value of the house—among his children. According to your question, how should the shares be divided?
Then the response, respected brother, is as follows:
The division of inheritance is fundamentally an issue that occurs after death. Dividing it before death changes the very nature of the matter. In any case, there are two situations for the division of parents’ property: (1) during their lifetime, and (2) after their death.
- In the first case, when a person divides his property among his children, it is not called inheritance but rather a gift (Hiba) or an endowment (Atiyah). In this situation, there must be equality and fairness among the children.
- In the second case, the property left behind after the parents’ death is called inheritance (Wirthah) or estate (Tarkah), the division of which will be done according to the principles and rules commanded by Allah Almighty: لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ (for the male, a share equal to that of two females).
Imam Bukhari (may Allah have mercy on him) says:
“إذا أعطى الوالد بعض ولده شيئاً لم يجز حتى يعدل بينهم ويعطي الآخر مثله” (Bukhari, Kitab al-Hiba, Bab al-Hiba lil-Walad)
“When a father gives something to one of his children, it is not permissible until he establishes justice among all of them and gives the others the same.” As evidence for this, Imam Bukhari (may Allah have mercy on him) presented this hadith:
“عن عامر قال سمعت النعمان ابن بشير رضى الله عنهما وهو على المنبر يقول اعطانى أبى عطية فقالت عمرة بنت رواحة لا أرضى حتى تشهد رسول الله صلى الله عليه وسلم فأتى رسول الله صلى الله عليه وسلم فقال انى اعطيت ابنى من عمرة بنت رواحة عطية فأمرتنى أن اشهدك يا رسول الله قال أعطيت سائر ولدك مثل هذا قال لا قال فاتقوا الله واعدلوا بين اولادكم قال فرجع فرد عطيته”
(Bukhari, Kitab al-Hiba, Bab al-Ishhad fi al-Hiba 2587)
“Amir al-Sha’bi said, ‘I heard Nu’man ibn Bashir (may Allah be pleased with them both) say from the pulpit: My father gave me a gift. But ‘Amra bint Rawaha (my mother) said, ‘I will not be satisfied until you make the Messenger of Allah (peace and blessings of Allah be upon him) a witness.’ So my father went to the Messenger of Allah (peace and blessings of Allah be upon him) and said, ‘I have given a gift to my son from ‘Amra bint Rawaha, and she has instructed me to make you a witness, O Messenger of Allah.’ He asked, ‘Have you given a similar gift to all of your other children?’ He replied, ‘No.’ The Prophet (peace and blessings of Allah be upon him) then said, ‘Fear Allah and be just among your children.’ So, my father returned and took back his gift.'”
If the house is in the father’s name and the debt is also his responsibility, and furthermore, he wants to divide all his property among his children during his lifetime to prevent any dispute or conflict among them after his death, he can do so. However, I would strongly advise that the father should absolutely not give away the property as a gift during his lifetime. I advise this father not to distribute his wealth in his lifetime. It is possible that after this distribution, he may become needy and dependent, and then he will not be able to take it back from his children.
As for settling the debt, according to my assessment, there are two possible scenarios:
- The father should talk to both of his sons so that everyone can try to pay off the debt together.
- If the sons are not willing to assist in paying the debt and the father does not have a sufficient source of income to clear it himself, and he wants to sell the house to pay it off, then he should sell the house, pay off the debt, and instead of distributing the remaining money among his children, he should use that money to buy a smaller house for himself so that he does not become homeless after distributing the funds.
In the second scenario mentioned above, the father should think with a sound mind: if today his sons are not cooperating with him in paying off the debt, how will they be of any use to him tomorrow when he is empty-handed, without a roof over his head, and on the street? Paternal affection has its place, but sound reasoning is also necessary for a person.
And if the sons give full assurance of their cooperation in paying off the debt, then the amount of the debt should be divided among them and this agreement should be put in writing. That is, the father should take a pledge from his sons that they are each responsible for a certain amount which they will pay to the creditor. Otherwise, in the case of the sons’ non-cooperation, he should opt for the solution mentioned above.
