In the matter of transferring property to your sons, while excluding daughters, the creation of a deed or will by your father during his lifetime is possible, but subject to certain conditions and legal principles.
A Muslim father cannot bypass the dictates of the Quran and Sunnah by depriving legal heirs of their rightful shares through a will without their consent. A will or gift that deprives other legal heirs of their rights is not valid under Islamic law.
Under Islamic Law, it is emphasized that rights of bequest/will cannot be allowed to be exercised to the detriment of the rights of other legal heirs.
Options for Your Father
- Gift (Hiba):
- Your father can gift the house to his sons during his lifetime. For a gift to be valid under Islamic Law, three conditions must be met:
- Declaration of the gift by the donor.
- Acceptance of the gift by the donee.
- Delivery of possession of the property.
- Mst. Anwar Kalsoom and 2 others Versus Ghulam Raza and another, 2018 YLR 1028, the court noted that the donee (respondent No. 1) failed to establish the essential ingredients of a valid gift under Muslim law, including offer, acceptance, and delivery of possession.
- It is important for the donor to perform an overt act demonstrating their intention to transfer ownership and disassociate themselves from the property, especially when other legal heirs exist (Luqman and another v Province of Sindh and 6 others, 2018 CLC 1838).
- Will (Wasiyyat):
- Your father can make a will, but Islamic law puts restrictions on this. He can only bequeath up to one-third of his property. A will seeking to transfer more than one-third of the property or disadvantaging other legal heirs requires the consent of all legal heirs (ALAMGIR KHAN and 9 others Versus Mst. ZEB JEHAN and others, 2015 CLC 298). Without this consent, the will is invalid.
- Rights of bequest/will cannot be allowed to be exercised to the detriment of the rights of other legal heirs (Mian DIN MUHAMMAD and others Versus Mst. ZAITOON and others, 2020 YLR 110). In Zakaria Begum and another Versus Nasir-ul-Islam Khan and others, 2022 YLR 2015, the court referenced Islamic Law, noting that a bequest to an heir is not valid unless other heirs consent after the testator’s death.
How to Proceed
- Consult a Legal Expert: It is important to seek advice from a lawyer who specializes in inheritance and property law to navigate these matters effectively.
- Drafting the Deed/Will: Any document should clearly specify the distribution of property and be attested by witnesses.
- Registration: Register the deed or will with the relevant authorities to provide it legal standing.
- Involve All Legal Heirs: To avoid future disputes, it is advisable to involve all legal heirs (including daughters) in the discussion and obtain their consent.
Caveats
- Fairness and Islamic Law: Distributing property unequally among heirs may lead to legal challenges, especially if daughters claim their inheritance rights under Islamic law.
- Consent: If a will or gift deed is challenged in court, the burden of proof lies on the beneficiary to prove the validity of the transaction and that all legal heirs consented, especially if some heirs are being excluded (Ayub Khan and another v. Mst. Maknoon, 2010 CLC 870)
Additional Points to Consider
- A mutation of inheritance, by itself, does not confer ownership. The beneficiary of the mutation must prove the authenticity of the underlying transaction (ALLAH DITTA through L.Rs. and another Versus Mst. QUDRAT BIBI through L.Rs. and 2 others, 2024 YLR 615).
- The court may consider whether the person making the gift or will did so with free and independent advice, especially if they are elderly or vulnerable (Ayub Khan and another v. Mst. Maknoon, 2010 CLC 870).
Consequences of an Invalid Will/Gift
If a will or gift deed is found to be invalid, the property will be distributed according to the standard inheritance laws applicable to Muslims in Pakistan. This means that all legal heirs, including sons and daughters, will receive their respective shares as prescribed by Islamic law.
Conclusion:
Your father can make a will or gift, but it is important that he follow Islamic law and the law of the land, and that he takes the appropriate steps to ensure that everyone gets all their due rights, and so that a good and fair distribution is carried out to ensure family harmony continues after he is gone.