Question:
Assalamualaikum ustaz. My brother put up his land as collateral, then my family helped to redeem the land. Not long after that, my brother passed away. Is it necessary for the land to be divided through faraid?
Answer:
Waalaikumussalam wrt. wbt.,
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
Inheritance according to the 4th Edition of Kamus Dewan means wealth or property left by a deceased. [1]
Inheritance is sanctioned in Islam and it is explained in al-Quran, al-Sunnah and ijma’ of scholars. People who deny the sanctioning of inheritance are considered those who have denounced Islam. This is in accordance with the statement of Allah SWT:
لِّلرِّجَالِ نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ وَلِلنِّسَاءِ نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ ۚ نَصِيبًا مَّفْرُوضًا
“For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much – an obligatory share.” [2]
Through this verse, Allah SWT explains that every heir has a right to the inheritance left by their parents and family members.
Imam al-Tabari cited Abu Ja’far who said that the verse means for sons have their portion from the inheritance and for the daughters, have their portion from the same inheritance, whether it is a little or a lot, the obligated portion, obligated, known and specific for them (following what is stated in al-Quran and al-Sunnah). [3]
The verses regarding inheritance in al-Quran clearly prove that inheritance is sanctioned. The same is stated in the hadiths of the Prophet PBUH regarding this issue. Among them, Rasullullah PBUH said:
أَلْحِقُوا الْفَرَائِضَ بِأَهْلِهَا، فَمَا بَقِىَ فَهْوَ لأَوْلَى رَجُلٍ ذَكَرٍ
“Give the shares to those who are entitled to them, and what remains over goes to the nearest male heir.” [4]
The author of the book al-Fiqh al-Manhaji [5]stated: “The implementation of inheritance is obligatory. The inheritance is valid according to the evidences from al-Quran, al-Sunnah and ijma’ of scholars. It is the same as the rulings pertaining to prayer, zakat, muamalat and hudud. It is obligatory to be implemented and practised. It shouldn’t be changed or neglected even if it has been sanctioned for a long time.
It is the sanction of The Wisest and Most Praised Allah SWT. It protects the rights of all. However, even if anyone thinks that their opinion is better, the law of Allah SWT is still the best law there is.”
Allah SWT states:
تِلْكَ حُدُودُ اللَّـهِ ۚ وَمَن يُطِعِ اللَّـهَ وَرَسُولَهُ يُدْخِلْهُ جَنَّاتٍ تَجْرِي مِن تَحْتِهَا الْأَنْهَارُ خَالِدِينَ فِيهَا ۚ وَذَٰلِكَ الْفَوْزُ الْعَظِيمُ ﴿١٣﴾ وَمَن يَعْصِ اللَّـهَ وَرَسُولَهُ وَيَتَعَدَّ حُدُودَهُ يُدْخِلْهُ نَارًا خَالِدًا فِيهَا وَلَهُ عَذَابٌ مُّهِينٌ
“These are the limits [set by] Allah, and whoever obeys Allah and His Messenger will be admitted by Him to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment. And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment.” [6]
According to the 4th Edition of Kamus Dewan, ‘collateral’ means: something pledged as security for repayment of a loan, to be forfeited in the event of a default. [7]
Thus, the ruling for collateral should be referred to as the rulings of al-rahn. Whilst from syarak perspective, the meaning of al-rahnu, we refer to the book Fiqh al-Manhaji:
“The term mortgage which refers to a mortgage contract means, making an item of value as collateral to debt and will be used to settle the debt if the debt cannot be paid.
With this, collateral exists through the contract. Therefore, the person putting up the collateral is the debtor, the recipient of the collateral is the creditor, and the pledged goods are the collateral. These matters put up as collateral refer to all things that can be measured and valued, that is, goods that are recognized as property by the syara’.
The purpose of the property put up as collateral is to convince the creditor that the debt given will not be settled just like that and he is confident of getting it back. Therefore, the goods are used as collateral for the debt. If the creditor finds it difficult or impossible for him to settle his debt after the expiry of the prescribed period, the creditor has the right to collect the debt by taking the pledged property, that is, by selling and then taking the owed amount through the payment obtained.” [8]
Regarding the collateral value after the debt is settled, then the following statement is referred.
“After the debtor settles his debt, the mortgage contract is over. Hence, the recipient of the collateral has to return the collateral to the debtor. This must be done regardless of whether the payment is made before or on the date of the agreed payment time.
If the creditor then failed, neglected or refused to return the collateral without any reasonable excuse, he should be responsible for the property. In this situation, what he is doing is the same as unjustly seizing the property of another person. The reason is he no longer has a right to keep the property.” [9]
Thus, Syeikh Muhammad al-Zuhaili stated that if the collateral is owned by the debtor and when the debt is settled, whether by the debtor himself or others and the property has been returned, then the person passed away, then the property must be divided through faraid. The reason is the property that is obligatory to be divided through faraid is “every property and right that is left by a deceased.” [10]
To conclude, collateral that its mortgage has been settled, although by others, must be returned to the original owner. If the owner has passed away, it should be divided through faraid.
May Allah SWT grant us all a deep understanding in this religion.
Wallahu a’lam.
[1] See: https://prpm.dbp.gov.my/cari1?keyword=harta+pusaka
[2] Surah al-Nisa’: 7
[3] See Tafsir al-Tabari, 7/597
[4] Narrated by al-Bukhari (6351)
[5] See al-Fiqh al-Manhaji, 3/284-286
[6] Surah al-Nisa’: 13-14
[7] https://prpm.dbp.gov.my/cari1?keyword=cagar
[8] See Fiqh al-Manhaji, 4/495
[9] See Fiqh al-Manhaji, 4/536
[10] See al-Muʿtamad fi al-Fiqh al-Syafie, 4/349
