Should they give a share to their brother who consumed their rights from their father’s estate?
Question I am the youngest of 4 siblings. My father passed away while I was studying abroad and left behind a lot of property, and some loans that needed to be paid off. I came back to my country and gave my eldest brother the power of attorney like my 2 sisters, so that he…
Question
Praise be to Allah.
If this is the case, and
this brother consumed your wealth unlawfully, then there is no sin on you if
you take his share of this house and do not give it to him, if his share of
the house is equivalent to your dues or less. But if it is more than what
was rightfully yours, then take what you are entitled to and give him the
rest.
The faqeeh Muhammad ibn
‘Abd-Allaah al-Kharashi al-Maaliki (may Allaah have mercy on him) said:
This issue is known as
opportunism. What is meant is that if what is a person’s lawful right is
being kept by someone else, and he gets the opportunity to take it or take
what is equal to his right from the wealth of that other person, then it is
permissible for him to take that from him, whether it is from the same type
of wealth or something else, according to the well known view, and whether
the other person is aware of that or not; and he does not have to refer the
matter to the judge.
The permissibility of
taking it depends upon two conditions:
1 – That his right should
not be in the form of a punishment (‘uqoobah), otherwise it is essential to
refer the matter to the judge. The same applies to hadd punishments. No one
can impose them except the judge.
2 – That there should be no
risk of fitnah (trouble, turmoil) because of him taking what is rightfully
his, such as fighting or bloodshed, and that there should be no risk of
being accused of crime as a result, such as robbery and the like. If there
is no guarantee that that will not happen, then it is not permissible for
him to take it. End quote.
Sharh Mukhtasar Khaleel
(7/235).
Al-‘Izz ibn ‘Abd al-Salaam
(may Allaah have mercy on him) said:
If a person is able to get
something like that which is rightfully his from the wealth of one who has
wronged him, then he may take it … and if it is not the same type of wealth
as what was taken from him, it is permissible for him to take it and sell
it, then regain what is rightfully his with the money. End quote.
Qawaa’id al-Ahkaam
(2/176).
Shaykh Ibn Jibreen (may
Allaah preserve him) was asked: We have a servant, and my father does not
pay this servant her salary. Can I take something from his wealth without
his knowledge and give it to the servant, knowing that he can afford it?
He replied:
He may have done this for
fear that she may run away and the like, or he wants to keep it for her so
that he can pay it all to her in one go when she leaves, because she does
not need it at the moment. You have to find out about the reason why he is
withholding it. It is well known that it is haraam to delay paying a hired
worker. It is narrated in the hadeeth: “Give the hired worker his wages
before his sweat dries.” There is also a stern warning concerning the three
whom Allaah will punish, one of whom is “a man who hired a worker and he did
the work, but he did not pay him his wages.”
If you think that he is not
going to pay her, and is withholding it from her, and he does not want what
is best for her, then you have to give her her wages from his wealth, even
if he does not know about that. End quote.
Sharh Akhsar
al-Mukhtarasaat ‘ala al-Shaamilah by Shaykh Ibn
Jibreen
See also the answer to
question no. 27068.
Similarly, you do not have
to pay his share to his first wife and his children, because the wealth is
your brother’s and you have a right to it. But if you give this money to
them, or some of it, that is an act of kindness and charity on your part towards them, and Allaah will reward those who give charity.
And Allaah knows best.
