The Islamic Method of Distributing Property
Question:
If a person wishes to distribute all of his property among his children during his lifetime so that no dispute or conflict arises among them after his death, can he do so? And what is the method of distributing it?
Answer:
The distribution of a person’s property is of two types: (1) during his lifetime, and (2) after his death. In the first case, the property that a person distributes among his children is not called inheritance; rather, it is called Hiba (a gift) or giving a gift. In the second case, the wealth that is left behind is called inheritance or estate. In this case, Allah تعالیٰ has mentioned the principle and rule for the distribution of property:
لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ
That a boy will receive a share equal to that of two girls.
Whereas in the first case, there will be equality and equal treatment among the children, and the rule of لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ will not apply.
Imam Bukhari رحمۃ اللہ علیہ says:
” إذا أعطى الوالد بعض ولده شيئاً لم يجز حتى يعدل بينهم ويعطي الآخر مثله ” (بخاری، کتاب الهبة، باب الهبة للولد)
When a person gives something to one of his children, it is not permissible for him to do so until he deals justly among all his children and gives the others the like of it. Imam Bukhari رحمۃ اللہ علیہ has presented this Hadith as evidence for this.
“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” (بخاری، کتاب الھبة، باب الاشهاد فی الهبة 2587)
“Amir al-Sha‘bi said: I heard Nu‘man ibn Bashir رضی اللہ عنہ saying from the pulpit: My father gave me a gift, so Amrah bint Rawahah said, ‘I will not be pleased until you make the Messenger of Allah صلی اللہ علیہ وسلم a witness to it.’ So he came to the Messenger of Allah صلی اللہ علیہ وسلم and said, ‘I have given a gift to one of my sons from Amrah bint Rawahah. O Messenger of Allah, she instructed me to make you a witness to it.’ He ﷺ said, ‘Have you given all your children a gift in the same way?’ He said, ‘No.’ He ﷺ said, ‘Fear Allah تعالیٰ and deal justly among your children.’ So he returned and took back his gift.”
Hafiz Ibn Hajar al-Asqalani رحمۃ اللہ علیہ says:
” وقد تمسك به من أوجب التسوية في عطية الأولاد وبه صرح البخاري وهو قول طاوس والثوري وأحمد وإسحاق وقال به بعض المالكية ” (فتح الباری 5/214)
“Those who have declared equality in gifts among children to be obligatory have relied upon this Hadith, and Imam Bukhari رحمۃ اللہ علیہ has also explicitly stated this. This is also the view of Tawus, Sufyan al-Thawri, Ahmad, Ishaq ibn Rahwayh, and some of the Malikis.”
Regarding the distribution of gifts, Ibn Hajar, while explaining the position of these Hadith scholars, says:
“لا فرق بين الذكر والأنثى، وظاهر الأمر بالتسوية يشهد لهم، واستأنسوا بحديث ابن عباس رفعه: “سووا بين أولادكم في العطية، فلو كنت مفضلاً أحداً لفضلت النساء”، اخرجه سعيد بن منصور والبيهقي من طريقه، وإسناده حسن” (فتح الباری 5/214)
“In the distribution of gifts, there is no difference between males and females, and the apparent meaning of the command for equality mentioned in the Hadith also supports this. They have also taken evidence from the Marfu‘ Hadith of Abdullah ibn Abbas رضی اللہ عنہ.”
The Messenger of Allah ﷺ said: “Maintain equality among your children regarding gifts. If I were to give preference to anyone, I would give preference to women.” Sa‘id ibn Mansur narrated it, and Imam al-Bayhaqi (2/177) narrated it through the same chain, and its chain is Hasan.
From the above explanation, it becomes clear that if a person wishes to distribute his property among his children during his lifetime, either because of the fear of a dispute or conflict among them or otherwise, then justice and fairness among the children are obligatory upon him. Whatever share he gives to the boy, he should give the same to the girl. In the terminology of Shariah, this is called Hiba or a gift.
If he does not act justly among his children, he will be sinful. And if he has given something to one of his children and has not given it to the others, then the father should take back such a Hiba or gift. And if he has departed from this world and left behind some wealth, then it is called an estate and inheritance, and its distribution will be according to the law of inheritance.
And Allah knows best what is correct.