Q. "Yousuf
has a moderate sized business. Two of his sons assist him full time in
the business. Two daughters are married. Yousuf passed away. The estate
is not wound up immediately. Yousuf's two sons continued with the business.
Finally after ten years it is decided that the estate should be wound
up and each person given his/her respective share. In the meantime, since
Yousuf demise the business which was worth at Rs. 1,000,000/- is now worth
two million.
1.1 From what amount will the shares be calculated? Will the heirs
who are not in the business be regarded as sleeping partners, whose capital
was employed for the ten years after Yousuf's demise, and therefore be
entitled to a share from the 2 million, or will their shares be calculated
only from the Rs. 1,000,000/-, and be regarded as an Amanat in the posse-
ssion if the two brothers, in the business, for the past ten years?
1.2 Will it make any difference if the heirs out of the business
had been demanding their shares constantly over the past ten years but
no attention was paid by those in the business (i.e. will the mas'ala
be any different in this situation compared to the situation where, after
the demise of Yousuf, no heir spoke any word about their shares on the
inheritance, and the first time this matter is touched on after ten years)?
1.3 What will be the Mas'ala if the shares were worked out immediately
upon the death of Yousuf, but the heirs running the business did not relinquish
control and continued to run the business for the next ten years, without
having paid out of the shares of the other heirs, despite having undertaken
to do so upon the death of Yousuf?
2.1 Is the Mas'ala in the following situation the same, one partner
"walks out" of the business without taking anything, and after
ten years demands to be given his shares. Will he be entitled to his share
from the value of the business at that time "walking out" or
the present value ten years later?
A. It is a mandatory obligation of the heirs of a deceased person
that immediately after his death they divide all his estate am- ong themselves
according to the shares prescribed by the Shari'ah. It is very unfortunate
that most of the Muslims today do not comply with the rules of Shari'ah
in this respect, and their negligence leads to serious disputes between
the heirs of the deceased, and by the passage of time the problems become
more complicated.
In the instant case it was the duty of the two sons of Yousuf that they
distribute the estate between the legal heirs of their father or at least
they should have affected a settlement with them, either by purchasing
the shares of the other inheritors in the business, or by affecting a
partnership with them, or by getting their permission to continue with
the business on specific terms and conditions. If they have not done so,
as it appears from the question, then it was not permissible for them
to continue with the business and to use the capital of other inheritors
for their own benefit. Therefore, all those profits which have accrued
against the shares of other inheritors are not Halaal for them. They can
enjoy the profits accr- ing against their own shares, but they have to
surrender all the profits relatable to the shares of the rest of the heirs
according to their respective entitlement according to Shari'ah.
It does not make any difference whether the rest of the heirs had demanded
their shares or not, because it was the duty of these two sons either
to pay the share of each inheritor in the business or to make a settlement
with them, and it was not lawful for them to use their shares without
their permission.
However, it will be advisable for the benefit of both of the parties that
they effect a compromise between them by taking these two brothers as
active partners of the business and treating the rest of the heirs as
the sleeping partners. In this case, an additional proportion of the profit
may be allowed to the working partners against their labour, while rest
of the heirs get lesser proportion of the profit as a sleeping partner
generally does.
In short, the standpoint of the two sons running the business that the
shares of other inheritors must be calculated only from one million is
not acceptable, neither from the point of view of Shari'ah nor on the
basis of justice and equity. The general principle of Shari'ah in this
case is that they deserve only that part of the aggregate profits which
relates to their own shares of inheritance, and the rest of the profits
should be surrendered to each of the inheritors according of his entit-
lement in the inheritence. However, both the parties may effect a compromise
by treating the business as partnership bet- ween all the inheritors,
whereby the proportionate profit of the two working sons may be increased
visa-a-vis the other partners on account of their labour. Such a compromise
will be more adviseable because it seems to be more equitable keeping
in view the circumstances referred to in the question.
The case of a partner who walks out of the business without taking anything
is different from the case of inheritance, beca- use such a person has
terminated the contract of partnership through his own free will. Therefore,
he is entitled to those profits only which have accrued upto the time
of the termination of the partnership. He was entitled to get these profits
at the time he left the business, but his failure to do so is a tacit
permission to the remaining partners for continuing the busin- ess and
treet his share of profit as trust with them. Therefore, he cannot claim
the additional profit accruing after he termi- nated the partnership.
On the original owner cam into the joint ownership of the inheritors and
no inheritor can use the share of the other without his express permission,
and even if other partners remain silent it did not mean that they had
ter- minated their partnership with their free will. Therefore, the analogy
of regular partnership cannot be applied here.
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