Heirs May Be Forced to Sell the House
Fatwa No: 439774

Question

My grandfather died in 2011. He had no sons but 3 daughters, 4 brothers, and 3 sisters. Problem here is related to inheritance land. Even if all other property gets distributed, what about the land of house in which her wife is living. Heirs are now demanding division of home too, torturing my grandmother to just give up. Shouldn't my grandmother live in their house freely and divide other land accordingly? What is the fate of this house?

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

The house that was left behind by the deceased is considered part of the estate (inheritance) and is the right of all the heirs, each one of them according to his legal share in the inheritance.

If the wife of the deceased does not have a dwelling to move to, then it is more appropriate for the heirs to consider her situation and be patient with her, as a way of being merciful and kind to her until she will be able to move out, but they are not obligated to do so.

So, whoever among the heirs requests that the house be sold, then he has the right to do that, and the other heirs are obliged to sell as long as the house cannot be practically divided amongst them.

Shaykh Ibn Taymiyyah  may  Allaah  have  mercy  upon  him said:

"The entity that cannot be divided if one of the partners asks it to be sold and to divide its price, then it should be sold and its price should be divided. The one who abstains shall be forced to sell; some Maaliki scholars reported there is a consensus among the scholars about this.” [End of quote]

It is permissible for some heirs to buy another heir's share of the inherited house, which is called Takhaaruj (which means that an heir renounces his share of the inheritance to be given to other heirs through purchase) [this is a process of settlement in inheritance distribution in order to achieve justice to all other heirs]

The Fiqh Encyclopedia reads:

It (Takhaaruj) means when the heirs reconcile to leave out some of them from the inheritance in return for something known in the inheritance or outside it. This is a contract to recompense one of the heirs for his share in the inheritance, and the other recompense is a known amount of money that is paid to the heir who is taken out of the inheritance. This contract is permissible if all the heirs agree to it. What proves that this is permissible is what was reported that ‘Abdur-Rahmaan ibn ‘Awf  may  Allaah  be  pleased  with  him divorced his wife, Tamaadhur bint Al-Asbagh Al-Kalbiyyah in his death sickness, and then he died while she was in her ‘Iddah (waiting period), so ‘Uthmaan  may  Allaah  be  pleased  with  him granted her the right to inherit along with the deceased’s three other wives, and they reconciled with her about her share of one-fourth from one-eight on the price of eighty-three thousand.” [End of quote] [i.e. all the four wives are entitled to one-eighth of the inheritance altogether, which they have to divide between them equally; i.e. each one gets one-fourth from the one-eighth]

For more benefit on Takhaaruj (in inheritance), please refer to Fatwa 308293.

Allah knows best.

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