Question:
1) 4 brothers purchase a property. While paying off the property, one of the brothers pass away. What percentage of the property will be distributed to the heirs of the deceased partner. (eg. If the brothers contributed equally when purchasing the property entitling them to 25% each, but the brother that passed away only paid off 10% of the entire property during his lifetime. Will this mean that only 10% of the property will be distributed to the deceased partners heirs? What will happen to the balance of the deceased partners share which was not yet paid off (15%). Will it also form part of his estate to be distributed to his heirs, or will it now be owned by the other partners who took over the payment of the property? (After the one brother passed away, one of the other brothers continued paying off the deceased brothers share and it was treated as a loan account owed by the estate and some payments were also made by one of the sons of the deceased partner.) Will the share of the property which was paid off by the son of the deceased partner now belong to the son, or will it be distributed to all the heirs of the deceased?
2) A property belongs to 4 brothers which is then lost due to non-payment during their lifetime. After it has been lost, one of the brothers pass away (i.e. they do not own the property at the time of this brothers death). After the one brother has passed away, it is bought back (eg. in an auction) by the remaining 3 brothers. Does the original share which belonged to the deceased brother have to be returned to the estate and distributed to his heirs, or will it now be owned by the 3 brothers who bought it back afterwards.
Answer:
It seems from the query that the four brothers had purchased equal shares in the said property hence each one was entitled to 25% of the property. A deal is finalized and concluded when there is a proposal from one party and acceptance from the other side, even though payment may be effected at a later stage. On conclusion of sale, the seller is entitled to his funds whilst the purchaser is entitled to his commodity or item of purchase. Now, if each brother purchased 25% of the property then each one will be considered as the owner of his respective share even though some of brothers may still be paying towards their portion of the property. This brings us to the conclusion that the 25% owned by the deceased brother will form part of his estate even though full payment was not effected at the time of his demise.
As for the remaining 15% of the purchase price which hadn’t been paid at the time of his demise, this will be considered as a debt on the deceased person. This amount may be paid from the deceased estate after settling all burial expenses, if surplus funds are available in the estate to cover the debt. If funds belonging to the estate are inadequate to settle the outstanding debts then the 25% share in the property may be sold to settle the debts. If (after selling the 25% share) any surplus funds remain from the proceeds of the sale then this will form part of the deceased estate and will have to be distributed in accordance to the Shari’ee law of succession amongst the heirs.
Now coming to your query, if the deceased person’s brother and son contributed towards settling the outstanding debt, after consulting with all the heirs and informing them that their contribution will be considered as a loan and will have to be repaid which all the heirs willingly consented to, then such an agreement will be in order and all the heirs will be liable to reimburse the brother and son according to their shares in the deceased estate. In this case too, the property will be distributed amongst the heirs according to the Shari’ee law of succession and will not be afforded to the brother and son that paid the outstanding debt.
2. In this scenario, the property will be owned by the three brothers that jointly purchased it from the auction and not the deceased brother.
And Allah knows best!
ANSWERED BY: Mufti Mohammed Desai
CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B
Date: 08 Rajab 1441
English Date: 04 March 2020
