Question
My father passed away leaving behind 1 son and 10 daughters as heirs. My fathers property was a piece of land.
One of the heirs husband (my sisters husband) sold the property without the consent of the heirs. Each of the heirs were given an envelope with a cash sum in lieu of the property.
One of the heirs objected to the sale of the property due to lack of consultation and approval of the heirs. She also contacted the buyer to inform him that the heirs did not consent to the sale. however the pleas were ignored.
My question is what is the current state of the property and who are the owners of this property.
N.B. The property is still in the name of the deceased and transfer has not taken place.
Answer
The sale of the property carried out by your sister’s husband is referred to as ‘Bay-e-Fudhooli’ in the terminology of the jurists. The ruling pertaining to such a transaction is; if the owners consent to the transaction after being informed of the sale then the transaction will be valid and concluded, and if they object to such a transaction then the sale will be invalid, which then means that they continue to maintain ownership of the property.
Now, coming to your scenario, your sister’s husband sold the property and then handed over the funds accrued from the sale of the property to the heirs which they had accepted with the exception of one heir. The fact that the heirs accepted the funds indicates that they have approved of the transaction which is referred to as ‘tacit approval.’ Therefore, the transaction will be considered as approved and finalized on behalf of those heirs that have happily accepted the funds in lieu of their portion of the property, but will not be valid on behalf of the one heir that objected to the sale. This particular heir now becomes a partner with the new buyer/s in the property.
However, if the heirs that consented to the sale are now regretful over their approval and wish to retain their respective portions of the property, they may request the buyer to reverse the transaction, whereby the buyer will return the property and they will return the funds. Such an agreement is now dependent on the consent and approval of both the buyer/s and the sellers.
Checked and Approved By:
Mufti Muhammed Saeed Motara Saheb D.B.