Parents gifting some of their children and excluding others
23-9-2011 | IslamWeb
Question:
AS salaam alaikum mufti sahab I am from hyderabad,I have six brothers and 4 sisters,my father owned a land around 9000 sqr yards in which he registered 2000 sq yrds to my 2 younger brothers in the year of 1997 and in 2001 he died of cancer ,after his death 3 of my brothers with the help of my mother got registered the remaining 7000 sqr yrds property in there name by the hiba nama from my mother ,therefore we all remaining brothers and sisters filed a partition suit in the court last year mufti sahab I would like to know that the hibanama my mother gave my brothers have a legal ground as per shariyath law and indian law please help me in this matter as we remaining brothers and sisters are worried .are we going to win the legal partition suit which we filed in court.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad 
is His slave and Messenger.
What your brothers did, which is registering the remaining land on their names and your mother agreeing with them and helping them, all this is not permissible. This is because after confirming the death of your father, the land has become a property of all the heirs and no one of them has the right to exclusively appropriate it for himself and exclude the remaining heirs.
Also, your father favoring his two youngest sons by gifting them part of the land (excluding the other sons) in his lifetime without a sound reason is not permissible. However, would this be valid or not valid after his death? There is a difference of opinion among the scholars regarding this, but most of them are of the view that it becomes effective after his death.
What is said about the gift of the father can also be said about the gift of the mother. After dividing the land between the heirs and knowing the share of each heir, it is not permissible for the mother to favor some of her children in gifting them (her share) over some other children as long as there is no sound reason, like need or poverty and the like.
This is in regard to the ruling of Sharee’ah. As regards the ruling of the Indian law, we are not aware of it. In any case, the Muslims should take their cases in all matters to an Islamic court and it is forbidden for them to take their cases to non-Islamic courts without a necessity.
Allaah Knows best.