I own two lands and wish to distribute them amongst my children, grandchildren in my life. How should I do with the partition?
Muhtaram / Muhtaramah
In the Name of Allāh, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāh wa-barakātuh.
Essentially, you are at liberty to distribute your property between your children or grandchildren during your lifetime, if you so wish. However, it should be borne in mind that such distribution will not be regarded as distribution of your estate, but rather as a gift from you to your children or grandchildren.
The rules applicable to distribution of an estate differ from the rules that apply to giving gifts. One basic difference is that distribution of an estate only takes place after one’s death whereas gifts are given in one’s lifetime. Another difference is that in distributing an estate, sons get twice as many shares as daughters, whereas in giving a gift, this is not the case. Furthermore, in order for the gifting to be finalized, it is essential that you hand over physical possession of the gift to the beneficiary. Mere verbal offer and acceptance without relinquishing possession will render the gift incomplete the asset will still remain your property.
It should also be remembered that when a parent decides to give a gift to any of his/her children, it will be Mustahab; i.e. preferable, though not obligatory to give the same type of gift or something else of equal value to ALL his children, male and female. There is a Hadeeth wherein the incident of a Sahabi by the name of Hadhrat Nu’maan bin Basheer (RA) is mentioned; that once his father gave him a gift when he was young. His father then came to ask Rasulullah (Sallallaahu Alaiyhi Wasallam) whether he had acted correctly. Rasulullah (Sallallaahu Alaiyhi Wasallam) asked him if he had also given a similar gift to his other children. He replied in the negative. To this, Rasulullah (Sallallaahu Alaiyhi Wasallam) said, “Then take the gift back!” In another version of this Hadeeth, it is stated that Rasulullah (Sallallaahu Alaiyhi Wasallam) also said to him, “Fear Allah and treat all your children equally.” [Muslim Shareef & Mishkaat, Pg. 261, Chapter on Gifts].
On the basis of the above Hadeeth, the Ulama have written that to give gifts to some of one’s children and deprive the others or to give some children more and the others less is Makrooh; i.e. undesirable though not a sin; provided that the motive is not to harm the others or to deprive them. If the motive is to deprive the others, then such an act will be regarded as “MakroohTahrimi” (an act close to Haraam) and a sin. [Ref: "Imdaadul-Ahkaam", Vol. 2, Pg. 892].
Under normal circumstances, a person is allowed to make Wasiyyat/bequest of upto one-third of his property, excluding the heirs. This is because of the fact that after his demise, they automatically become entitled to at least two-thirds of his estate [ Majma'ul-Anhur Vol.2, Pg. 264 ].
”إن الله قد أعطى كل ذي حق حقه ولا وصية لوارث”
Allah has given every one his due right; (verily) there is no bequest for an inheritor. ( Tirmidhi, Abu Dawood, Nasai and Ibn Majah)
And Allah knows best
Darul Iftaa,Madrasah Inaa’miyyah