was not completely finished. The heirs are his wife, four sons and two
daughters. The first son and the mother finished the first floor and
he got married and moved in. The third son finished the second floor,
and got married and lives there with his mother. Then the secondson
built an apartment on top of the house (a third floor) without any
help from anybody. Thenthe mother built an apartment on the top of the
house (a fourth floor), where the fourth son now lives, so that there
would not be any problems. The fourth sondid some of the finishing.
Please note that the older daughter got married when the father was
still alive and the younger daughter got married after he died. Also,
everything that the mother did of construction was paid for from the
husband's pension.
How should this house – including the apartment that was built by the
second son and the apartment that was builtby the mother – be divided?
Praise be to Allah.
Firstly:
The scholars are unanimously agreed that ownership of the estate
passes to the heirsas soon as the deceased dies. It says in
al-Mawsoo'ah al-Fiqhiyyah (24/76): Thefuqaha' are unanimouslyagreed
that the estate passes to the heir, if there are no debts, from the
moment the deceased dies. End quote.
Secondly:
If a man dies and leaves behind a wife, four sons and two daughters,
and he did not leave behind any other heir, then the wife gets a share
of one eighth, because there are descendants who inherit. Allah, may
He be exalted, says (interpretation of the meaning):
"but if you leave a child, they get an eighth of that which you leave
after payment of legacies that you may have bequeathed or debts"
[an-Nisa' 4:12].
The rest goes to the sonsand two daughters, witheach male getting the
share of two females, because Allah, may He beexalted, says
(interpretation of the meaning):
"Allah commands you as regards your children's (inheritance); to the
male, a portion equal to that of two females"
[an-Nisa' 4:11].
Thirdly:
If the heirs have agreed among themselves to some way of dividing the
estate, there is nothing wrong with thatand it is called "division by
mutual consent." But if they disagree then theway to deal with it is
to refer to the sharee'ah courts.
The scholars of the Standing Committee were asked:
How should inherited houses and movable possessions such as cars,
tools and so on be divided, when there is mutual consent and when
there is no mutual consent among the heirs? How should a rented store
be divided (i.e., the deceased used to rent it from someone else)? If
we say that the rental contract is inherited, please note that the
heirs are not able to benefit from these things because they cannot
all benefit from these things.
They replied: It should be divided among them according to the shares
of inheritance prescribed in Islam, withthe help of experts in
evaluation of the estate. If they agree amongst themselves to this
division and they are mature adults, there is nothing wrong with that.
But if they disagree, then the dispute should be referred to the
sharee'ah court. End quote from Fataawa al-Lajnah ad-Daa'imah, 16/459
It says in al-Mawsoo 'ah al-Fiqhiyyah (33/215):
The partners all want to divide the shared wealth, or some of them
want to do that and the others have agreed to the division and the
manner of implementingit, so they do not have any need to go to the
judge. In that case the division is called divisionby mutual consent.
One or more may want to do that but others may refuse. If the one who
wants to do it refers the matter to the court, and the judge takes
charge of dividing the wealth in accordance with Islamic principles,
in this case the division is called compulsory division.
Division by mutual consent is that which is done with the approval of
all partners.
Compulsory division is that which is done through the court because
there is no agreement among the partners. End quote.
On the basis of the above:
If you have agreed to divide the wealth amongst yourselves in a
certain manner, then praise be to Allah, and the matter is as you
haveagreed, no matter what form it takes.
But if you disagree, thenthe way to deal with it isto refer the matter
to the sharee'ah court to judge between you.
If there is no sharee'ah court, or you refuse to refer the matter to
the court, then the current value of the house, with all its floors
and finishings, should be worked out, then each heir should be given
back what he spent on construction or finishing, or an amount in
addition to his share should be worked out for him. The value of the
apartment where he is living should not be given to him in full,
evenif he built it independently, because the value of the apartment
includes a share of the value of the land. What he spent should also
not be given to him in full because the value of the structure he
built or the finishing usually depreciates with use, and he originally
spent itfor his own benefit.
Whatever is left of the value of the house should then be divided
among all the heirs, as described above.
For example, what the mother spent on construction or finishingmay
either be returned to her possession, and she may dispose of it
however she wants, or itmay be included in the estate and be divided
among all the heirs according to their shares.
In this case, either the house should be sold and each one can take
his share of the inheritance along with what he spent on construction
or finishing, or each one can stay in the apartment he built on the
basis that he will paywhat he owes to the other heirs, or it may
remain a debt that he owes to them, if the one who is entitled to that
agrees to it.
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