However, this distribution is an order of the Shariah. The necessity of having our matters absolutely clear also requires that the estate should be speedily distributed. Ignoring this basic order also becomes a means of serious conflict. As time passes, the other heirs constantly remember their right in the estate which they have not received as yet. They are grieved by this. Also as time passes the value of the estate differs greatly compared to the time of the death of the father. Hence, since nothing was clarified, the matter now becomes complicated. To amicably resolve the complications becomes a difficult matter. As a result the matter finally results in disputes, quarrels, and fights. (Often one particular member of the family takes it upon himself to handle the winding up process. He alone knows what he is doing. Sometimes months and years drag along and the other heirs are not even informed of what is happening. This creates much suspicion and ill-feeling which later explodes into severe conflicts and disputes. It is therefore necessary that all the heirs should sit down together as soon as possible and mutually decide as to how the winding-up process should be handled. All the heirs should then be regularly informed as to what progress has been made)
The third situation pertains to the winding up of the estate. When a person passes away, the Shariah requires that his estate must be immediately wound up and distributed among the Shar’i heirs.
Another situation which affects many people in our community, especially the middle class, is the acquisition of a home. In many instances the house is built or purchased jointly by several members of the family. If the father has commenced the building of a house, the sons also contribute from their personal incomes to the extent of their ability. However, in most of these instances these contributions are made without considering any of the resultant factors, and often without any proper records being kept. It is not determined whether the amount that the son has contributed is a (a) gift to the father or (b) a loan to him, or (c) is he becoming a proportionate shareholder in the home.
Furthermore, if any of the partners will be doing more work than the others, it should be established as to whether he would be doing this extra work on a voluntary basis, or will he be compensated for the extra work. If he will be compensated, will it be in the form of an increased share in the profits, or will it be in the form of a specific amount of salary? In short, every aspect pertaining to the duties and rights of each partner must be clearly written down so that no ambiguity remains.
Therefore if more than one person works in the same business, it should be established from the very beginning as to what each one’s position in the business is. If a son has joined his father in the business, it must be established from the very first day as to whether he is merely helping his father as a favor, or whether he is an employee, or has he joined as a partner? If he is just an employee, his salary must be clearly stipulated. It must also be clearly mentioned that the son in this case has no share whatsoever in the ownership of the business. If he is being made a partner, firstly it is a condition that he invests something into the business. If the son does not have any capital of his own to invest, the father could give him an amount as a gift. He would then invest this amount into the business and purchase a share therein. All these matters should be reduced to writing in the form of a partnership agreement. The share of profits that each partner would be entitled to should also be explicitly mentioned so that there is no problem later on.
In the longest aayah of the Qur’an Allah Ta’ala has commanded the Muslims to write down the details of any credit transaction. If a small amount is taken on credit it must also be recorded, how much more important it is that complex business agreements be reduced to writing. The simple reason for this injunction is that the abovementioned problems may be avoided or, if somehow a problem does crop up, it would be easily possible to solve the matter in a fair and just matter.
Often several brothers are partners in the same business. At times the father and sons are in the business together. Without any records being kept, all the “partners” take their expenses from the business and spend as they wish. However, the position of each person in the business is not clearly determined. For example, is the son or brother merely an employee in the business, or is he a partner? If he is an employee, what is his salary? If he is a partner, what is his percentage share of the profits? Without any of these aspects being clarified, each one draws from the business as pleases. If anyone dares to suggest that these aspects need to be clarified, his suggestion is frowned upon. This suggestion is regarded as contrary to the dictates of mutual love and unity.
If one wishes to have a vague idea of the number of disputes that occur in the community, one will get a glimpse of this from the number of cases that come to the courts on a daily basis. However, due to the high costs and the time involved in bringing a matter to court, the majority of disputes don’t even come to the courts. Rather the disputing parties try to grab whatever they can from each other, thus bringing about further enmity. The resultant animosity sometimes continues for generations.
This short treatise, “LIVE LIKE BROTHERS – DEAL LIKE STRANGERS” is a translation of an article by Hazrath Mufti Muhammad Taqi Uthmani Saheb (mudda Zilluhu). The original article titled “Mua’malaat Ki Safai ur Tanuzu‘aat” was published in the July-94 issue of the monthly urdu magazine Al-Balaagh. The basic lesson expounded in this article is the total clarification of all our transactions and monetary matters. Hazrath Mufti Muhammad Taqi Saheb (mudda zilluhu), in his capacity as a judge of the Shariah court, has immense experience in these matters. In the light of this experience he has vividly described the common problems that repeatedly occur in our dealings – and has given practical solutions to these problems.