Question:-
Is it permissible for a father to distribute his wealth and business during his lifetime, to his sons that are working in the business with him? The other sons have their own businesses.
Answer:-
We understand from your query that a father wants to distribute his assets amongst his children during his lifetime. However, he intends giving his assets to those children that are working in the business with him, and not his remaining children that have their own businesses and are financially independent.
Imaam Abu Hanifa Rahimahullah states that there is no harm in giving preference to certain children over others on the basis of Deen. However, if they are all equal in terms of Deen (religiousness), then it will be Makrooh to give preference to some children over others. In such a case (where all are equal in terms of Deen), then all should be treated equally.
Imaam Abu Yusuf Rahimahullah states that there is no harm in giving preference to some children over others if the intention (of the father) is not to harm (or deprive) any of the other children. If the father’s intention is to deprive some of the children then he should be equal (in distributing his assets) between his children. He should give his daughter exactly the same amount that he will be giving his son. The Fatwa is given on this view of Imaam Yusuf Rahimahullah.
وروي عن أبي حنيفة – رحمه الله تعالى – أنه لا بأس به إذا كان التفضيل لزيادة فضل له في الدين، وإن كانا سواء يكره وروى المعلى عن أبي يوسف – رحمه الله تعالى – أنه لا بأس به إذا لم يقصد به الإضرار، وإن قصد به الإضرار سوى بينهم يعطي الابنة مثل ما يعطي للابن وعليه الفتوى هكذا في فتاوى قاضي خان وهو المختار، كذا في الظهيرية. (الفتاوي الهندية ص391 ج4)
In conclusion, if the father was required to be equal to all his children as explained above (as he intended to deprive some of his children), but goes ahead with an unfair distribution, then he will be sinful. However, the gifted assets will belong to those children to whom it was gifted, with the proviso that he followed the correct procedure of gifting in terms of Shariah and the children took possession of the assets.
ALLAH TA’ALA KNOWS BEST!
ANSWERED BY:
Mufti Mohammed Desai
Date: 01 Dhul Qa’dah 1443 / 02 June 2022
