Gifts to children: In preference to some over others

Q234 :I am the eldest in a family of three sons and five daughters. Recently, when I went back home, I found that my father has transferred all his land to my two younger brothers. When I asked about my share he said that since I am earning a good salary in Saudi Arabia, he has deemed it fit to take this decision. He claims that I do not need a portion of the land. I feel aggrieved because I have the largest family with six children of my own. He suggested that if I give him a large amount of money, he will make the necessary change. I cannot afford that. Perhaps it is worth pointing out that my father inherited a part of the land and purchased the other part. May I ask how far is my father's action, which is supported by my mother, correct? Is there any possibility that I can have my share from my grandfather's property? Do I have any right to a portion of what my father has bought? Is it open to parents to disown a son of theirs? What is the Islamic rule regarding division of property?

A234 : Let us first be clear about the legal technicality of the matter. Since your father is making this distribution of his property to his two sons, while he is alive and in possession of his mental powers, it is not open to you to challenge his action. If you go to a court of law, you stand no chance of gaining anything. You will end up with more bitterness and more friction in the family. Since the transfer is registered in the official records, you cannot challenge that transfer after the death of your father. So the legal aspect is better forgotten. Most probably your father has meant well when he made his decision to transfer the ownership of his land to his two sons, leaving you out. He may have judged that after several years of work in Saudi Arabia, you will be better off than your brothers. Therefore, he might have thought that it would be only fair to your brothers if he helped them a bit, by giving them the land which they already cultivate. He might have also thought that your sisters are or will be married and they have no use of the land. He judged it fair to make this transfer. How right is he? Well, he is not right at all. I have often tackled the problem of equal treatment of children. I mentioned the authentic Hadith in which the Prophet gives a general order to all Muslims: "Fear Allah and treat your children fairly." In other words, he makes fair treatment of children part of being conscious of one's duty toward Allah and fearing Him. We also have the authentic Hadith which I have often quoted and which is related in several versions in the most authentic collections of Hadiths. Father of An-Nu'man ibn Bashir, a young companion of the Prophet, came to the Prophet and said, "I have given a slave as a gift to this son of mine and I would like you to witness that." The Prophet asked: "Have you given all your children similar gifts?" When the father answered in the negative, the Prophet said: "Seek some other witness for your deed, because I do not witness injustice." This Hadith is reported in several versions, with some adding that the Prophet told An-Nu'man's father when he confirmed that he had not given all his children similar gifts, "then take it back" and that Bashir did just that. In some versions the Prophet said to him: "This cannot be right. I do not witness anything which is not right." This Hadith is absolutely clear. On its basis, many scholars have ruled that it is forbidden for a father to give a gift to some of his children in preference to others. If he does, then he must give the rest of them similar gifts. When he does so, he should give his daughters gifts which are equal to what he has given his sons. This is different from inheritance in which a boy receives twice the share of a girl. It is also clear that Bashir, the man at the center of this report, understood the Prophet's instructions and acted on them. He took back the slave which he had given to his young son. Saad ibn Ubadah was a leading figure among the Ansar and he was very rich. One day, he divided all his wealth between his sons. After his death, his wife gave birth to a son. This took place during the reign of Abu Bakr. One morning Umar met Abu Bakr and said to him: "I spent a sleepless night on account of this new child of Saad, because his father left him nothing." Abu Bakr said: "And so did I. Let us go to Qais ibn Saad and speak to him about his brother." They went to Qais, himself a companion of the Prophet and a man of honor. When they spoke to him, Qais said: "As for what Saad has done, I will never invalidate; but I would like the two of you to witness that my share is for my young brother." This is indeed the type of understanding the great companions of the Prophet gathered from what he said to them on this subject. Both Umar and Abu Bakr spent a sleepless night on account of a boy who was born after his father's death. They wanted to witness justice not only to the boy but also to the father, who might have not been aware that his wife was pregnant when he divided his wealth. Maybe the division took place before the pregnancy even took place. That, however, does not deprive the young boy of his right to be treated equally with his brothers. Nor, indeed, will it deprive a girl of her right to such equal treatment. Qais's attitude is also highly significant. He did not object to what he was told by Abu Bakr and Umar. He did not argue that the division of the property took place a long time ago and that he and his brothers were entitled to what they received. He accepted what Abu Bakr and Umar told him as absolutely right. As a dutiful son, he wanted to honor his father's action. He said that he was not one to invalidate what his father had done, but he would take it upon himself to ensure justice to his brother, giving him all his share. By doing so, Qais did more than what was expected of him. But, then, Qais ibn Saad was highly renowned for his generosity and benevolence. You see how the companions of the Prophet understood this question and how they acted upon it. The scholars of this nation have also given the same ruling. Hence, it is not open to any Muslim to disobey Allah's messenger and prefer some of his children to others. Having explained that, I want to reply briefly to your other questions. Let me first of all tell you that you have no right to your father's land or to any part of it in the first instance. It is by virtue of your father's action that you become entitled to a fair share, on the same level as your brothers and sisters. If your father did not make this distribution, none of his children would be entitled to any portion of his property, as a right, as long as he lives. When he dies, each of his children, sons and daughters, will be entitled to their shares of inheritance [from any other property]. Nor do you have any right to your grandfathers' property. That was distributed among your grandfather's children according to the system of inheritance. As a grandson, you do not inherit anything from your grandfather. You inherit from your father. As for parents disowning any son or daughter of theirs, this is not acceptable in Islam. It cannot be done. Nor can a father disinherit any of his children, or any of his heirs for that matter. The system of inheritance is laid down by Allah who has apportioned shares to each heir. No one may go beyond what Allah has laid down. May I point out, however, that for your parents to threaten to disown, you suggest that you may have spoken a little harshly to them. Perhaps you criticized them in strong terms. Perhaps they expected you to be more cooperative. May I put it to you by way of advice that the example set by Qais ibn Saad, the companion of the Prophet I have mentioned earlier, is something to be followed. What I am saying is not a duty incumbent on you but rather an advice that you should be more generous and more dutiful to your parents. If you relinquish your right in order to please your parents, and they feel happy with your generosity and if you do this to please them, hoping for a better reward from Allah, then be sure that better reward will be forthcoming in this life and in the life to come. What worries me in this whole question is that at no point in your long letter did you mention the rights of your five sisters. As I have already said, when a parent, father or mother, gives one of his children a gift, he must give similar gifts to all of his children, sons and daughters. Why, then, has nobody bothered about the rights of your five sisters? May be, because they are already married. Or, may be, because women should not own land. Is this the tradition in your community? If so, then I tell you very clearly that this tradition cannot be accepted by Islam. If your parents want to do what is right, and to avoid disobeying Allah and His messenger, then your father must take back the land and again divide it among his eight children equally. Alternatively, he takes it back and does not distribute it now. After his death, each of his eight children will be entitled to a portion of it, as indeed to a portion of the rest of his property, on the basis of one share for each girl and two shares for each boy. Your mother is entitled to receive one eighth of your father's property. Now that you know the Islamic verdict on this question, perhaps you should speak to your parents in a different light altogether. You should go and advocate the right of your sisters and advise them that their action constitutes disobedience to Allah and His messenger. You would not want them to face Allah on the Day of Judgment with that disobedience to account for.

Our Dialogue ( Source : Arab News - Jeddah )