Question

Salams.
Wanted to ask a question regarding the distribution of inheritance. From my dads inheritance the inheritors were my mum, us 6 daughters and my dads sister. When we went to explain to my aunty about her share, she said she doesnt want it and told us to divide it between us sisters. She give it in writting and she signed it and also all her children signed it too, stating that she has given her share to us and she doesnt want it. Is that accepted? Also with my mum when she passed away, within her iddah, and her inheritors were us 6 daughters and her sister. Her sister said and done the same as my aunty, is that acceptable? Im sending the fatwas we got from a Darool Uloom, regarding who the inheritors are from my dad when he passed away and from my mum when she passed away.

Answer

When a person passes away, ownership of their assets automatically passes over to the rightful heirs. The assets should be distributed amongst the heirs according to their shares of the inheritance.

If any of the heirs wish to relinquish their share then they can only do so after having taken possession of their share themselves or through an agent. Even if they sign a document to state they do not want their share they will not be allowed to do this. This is because the share automatically enters into their ownership upon the passing of the deceased. Therefore, if your aunty and mother’s sister were informed of their shares then they either took possession or instructed someone to distribute their share to you and your sisters then their relinquishing would be correct.

However, from your question this does not seem to be the case. One solution to this would be to workout the shares of your aunty and mother’s sister then tell them this is how much your share was. The inheritors should then be asked to return the share of the aunty or mother’s sister which is in their possession. Thereafter, your aunty and mother’s sister can distribute their shares to you and your sisters. Alternatively, ask them to make someone their agent to distribute their shares. This process is simply to make the receipt of the extra inheritance shares by the inheritors valid according to shari’ah, otherwise the end outcome is admittedly the same.

Given that this solution might be difficult, there is another solution that we recommend. This is that you purchase something inexpensive, such as a cake or item of clothing, and you give it to your aunty, telling her that this is in exchange for her share that she has given to all you sisters. So, instead of receiving her full share she agrees to receiving just this item. This is a type of truce (musalahah) and through this mechanism the shares that you all have received of hers will become valid for all of you sisters according to shari’ah. You would do the same with your mother’s sister.

الفتاوى الهندية (4/ 268)
إذَا كَانَتْ التَّرِكَةُ بَيْنَ وَرَثَةٍ فَأَخْرَجُوا أَحَدَهُمَا مِنْهَا بِمَالٍ أَعْطَوْهُ إيَّاهُ وَالتَّرِكَةُ عَقَارٌ أَوْ عُرُوضٌ صَحَّ قَلِيلًا كَانَ مَا أَعْطَوْهُ أَوْ كَثِيرًا

الفتاوى الهندية (4/ 268)
وَلَوْ كَانَ بَدَلُ الصُّلْحِ عَرَضًا صَحَّ مُطْلَقًا لِفَوَاتِ الرِّبَا

الفتاوى الهندية (4/ 374)
وَأَنْ يَكُونَ الْمَوْهُوبُ مَقْسُومًا إذَا كَانَ مِمَّا يَحْتَمِلُ الْقِسْمَةَ

الدر المختار وحاشية ابن عابدين (رد المحتار) (5/ 692)
في) متعلق بتتم (محوز) مفرغ (مقسوم ومشاع لا) يبقى منتفعا به بعد أن (يقسم) كبيت وحمام صغيرين لأنها (لا) تتم بالقبض (فيما يقسم

الدر المختار وحاشية ابن عابدين (رد المحتار) (5/ 690)
وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) والأصل أن الموهوب إن مشغولا بملك الواهب منع تمامها

Answered by:
Ifta Research Fellow

Checked & Approved by:
Mufti Abdul Rahman Mangera
Mufti Zubair Patel