As salam alaikum. My parents had a house half of it my father paid and half was mother's tarka they sold that house and gave gold to three brothers and bought a piece of land while buying the land my father said that's for second oldest brother who helped everyone in our education and sisters wedding. Now I started building the house on land with the intention that my mother can live there and after her second oldest brother will have but my mother and other siblings think that the house must be disturbed in all sons and daughters. My question is does my father have right to give it to second oldest brother since my mother's tarka was used in buying first house? Does the land which father said it's for his second son in his life should be distributed in all if second son doesn't want it?
بسم اللہ الرحمن الرحیم
الجواب وباللہ التوفیق
1. Per your question, if the money (gold) given by the mother is with the intention of participation, the mother will participate in it only according to her own money.
The inheritance will not be applied on the mother’s amount of her money, because the mother is still alive, and inheritance cannot be distributed during the life of a person.
In this case, it would not be right for the father to give the house to the son as much as is the mother's share. But if the mother has given the money with the intention of co-operation or assistance, as is known from the question, then the house actually belongs to the father. The mother's money included in this matter will be a favor from her. In that scenario the father will have the option to give it to whomsoever he wants.
2. If the father gave this house to his second son, and the son occupied and possessed it, although the house will now be owned by the second son, but this conduct by the father will be deemed incorrect. In that case, the inheritance on this house will not continue
But if the father had not given the house to the ownership and possession of the second son, it will remain the property of the father, then everyone will have a share of inheritance of it according to Shariah Rules.
3. By allocating that land to the son, he will not become its owner until the son has taken its proprietorship and possession. But if the land was in his possession and under his disposal then it will belong to him. He has the right to give to whomever he wants, or not to give. But if the son was not in possession, as is clear from the question, then according to Shariah, the house will be distributed among all heirs.
کل یتصرف في ملکہ کیف شاء؛ لأن کون الشيء ملکا لرجل یقتضي أن یکون مطلقا في التصرف فیہ کیفما شاء۔ (شرح المجلۃ للأتاسي ۱/ ۶۵۴، رقم المادۃ: ۱۱۹۲)
تنعقد الہبۃ بالإیجاب والقبول، وتتم بالقبض الکامل ،لأنہا من التبرعات، والتبرع لا یتم إلا بالقبض۔ (شرح المجلۃ رستم باز، ۱/ ۴۶۲، رقم المادۃ: ۸۳۷، شامي کراچی ۵/ ۶۹۰)
یملک الموہوب لہ الموہوب بالقبض۔ (شرح المجلۃ ۱/ ۴۷۳، رقم المادۃ: ۸۶۱)
فقط واللہ اعلم بالصواب