Law providing illegitimate rights

Q322 :When my grandfather suffered a business setback, he was left only with a small vegetable shop that he owned and a small flat that he rented. From a young age, my father worked hard, helping his father in earning the livelihood for his family. He then took over all the business when his father could not carry on. He managed to marry off all his five sisters. About fifteen years ago a state government in India passed a regulation which made tenants the ultimate owners of two-thirds of the rented premises. If the property is to be sold, only one-third goes to the landlord and two-thirds of the sale proceeds go to the tenant. Now my father is thinking of moving to a better residence by selling this small flat and using the money for the purchase of the new property. We put the case to a scholar in our locality who said that since my father continued to pay the rent and take care of the family, he is entitled to retain the price of the flat and the shop. My aunts are not aware of this. May I ask you whether they are entitled to shares of the proceeds of the sale of this flat and shop?


A322 : The first thing to be said about this question is that governments may promulgate certain laws which they deem to be useful to the community in order to address a certain problem or redeem some imbalance. When a law is in direct conflict with Islamic teachings, Muslims must try not to take advantage of that law, putting the blame for gaining certain illegitimate benefits on the authority that had promulgated the law. It is often the case that a law is tailored to try to gain some popular support for the government. It does not look at the question of right and wrong in any broad sense. Its purpose is simply to make the government more popular. An example may be provided by the tenancy regulations issued in a Middle Eastern country over a long period of time. Successive regulations prevented from raising the rent. As a result, tenants continue to pay today the same rent they agreed with their landlords forty or fifty years ago. At that time, the rent was fair. Now it is worthless. The property is still of great benefit to the tenant but is no longer of any benefit to the landlord who is the actual owner. Such regulations are unjust, but governments continue to be most reluctant to change them, because the change will not be popular. This is not an isolated case. Similar examples can be found in many countries of the Muslim world. An unjust law or regulation does not give any legitimate right to the party who benefits by such a legislation. A government may issue an order saying that if a tenant has paid the rent of a property for so many years, he becomes its owner. Such a law has no validity in Islam, because the tenancy agreement did not provide for a possibility of converting the rent into a sale price. The case may be different if it is clearly stipulated at the beginning that the tenancy will eventually end in a sale of the property. The law of the country or of the state would then become applicable to such tenancy agreements and its provisions become part of the agreement itself. But to say that past agreements are changed as a result of a subsequent law is totally unfair and unacceptable in Islam. I will give you a clearer case than yours. Suppose that a landlord of a property dies having no children, wife, parents or indeed any relations whomsoever. Suppose also that he had rented a shop or a flat he had owned to a particular person who paid the rent regularly for more than thirty or forty years. If both people were in your state in India, the local regulation would give that tenant the status of owner of two-thirds of that property. That ownership is not valid from the Islamic point of view, because it does not come about as a result of a sale agreement between seller and buyer, or as a result of a gift from owner to tenant, or as a result of inheritance by will or by Islamic system of inheritance. These are the only legitimate methods of transfer of ownership. I hope the foregoing makes clear the question of the ownership of this small flat which your father has had on rent for many years and his father rented before him. The state government might have issued any law, but your father is not the owner of two-thirds of that flat. That flat is owned by the landlord only. Your father may wish to come to some sort of an agreement with him about buying the flat at a reasonable price, but that should be a new agreement, regardless of the unjust law of the state. If the landlord agrees to sell it to your father at a reduced price, then it becomes the property of your father and your aunts will have no share in it. The case of the shop is different, because it was the property of your grandfather who died only a few years back. The fact that your father had been working there for such a long time gives him some special status, but not with regard to ownership of the shop. It remained the property of your grandfather and, as such, it formed a part of his estate. All his heirs had shares in it. I understand that your grandfather was survived by his widow, one son and five daughters. Therefore, his property is divided in this way: One eighth of all his property goes to your grandmother, the remaining portion of seven-eighths of the whole property is divided into seven portion with two of these portions going to your father and one portion to each of your five aunts. To make things simpler, the whole property could be divided into twenty four parts, with three parts going to your grandmother. The remaining twenty one parts form the inheritance of your grandfather's, with your father receiving six parts and each of your aunts receiving three parts. This division applies to the shop itself and the part of the business which was owned by your grandfather. If your father had any portions of the business as his own property, then the division does not apply to that. Since your father has been working in the shop for a long time, your aunts are entitled to receive from him rent of their shares in that shop. It may be that your father has spent so much on his sisters, and perhaps he has helped in their marriages. He may speak to them, explaining that each of them has such a portion of the shop. Either he would buy it from them or pay them rent. They should come to some agreement with regard to the ownership and the rent, without pressure. If any of them decides to retain her portion and requests rent from your father, he should pay her any agreed rent. The fact that he supported them in the past should not affect that situation. Whatever agreement they may come to must be amicable. His support to them will ensure great reward for him from God. He should be keen to retain that reward by ensuring that each one of his sisters receives her full share of the inheritance from their father.


Our Dialogue ( Source : Arab News - Jeddah )