مشترکہ ترکہ میں تصرف سے حاصل شدہ منافع کا شرعی حکم: ایک فقہی مطالعہ

The Shariah Ruling on Profits Derived from Dealings in Joint Inherited Property: A Ḥanafī Juristic Study

Abstract

This study examines the Sharīʿah ruling on profits generated from undivided inherited property in the light of Ḥanafī jurisprudence, with particular reference to the customary joint family system prevalent among the Pashtun community of Balochistan. Although Islamic law grants every heir an independent and fixed share immediately upon the death of the deceased, inherited property often remains undivided for many years in practice. During this period, some heirs, particularly male members of the family, continue to manage, cultivate, or invest the estate, giving rise to important juristic questions concerning the legality of such transactions, ownership of the resulting profits, and entitlement to remuneration for the managing heirs. Using an analytical and applied juristic approach, this research distinguishes between two legal situations: transactions conducted with the express or implied consent of all heirs, and transactions carried out without such consent. The study concludes that where consent exists, the profits belong collectively to all heirs in proportion to their legal shares, while the heirs who actively managed the estate may, in light of established custom (ʿurf), be entitled to ujrat al-mithl (reasonable remuneration). Conversely, where consent is absent, the transaction assumes the legal status of usurpation (ghaṣb). In such cases, profits attributable to the shares of other heirs must be returned to their rightful owners, and the managing heir is not entitled to any remuneration for his labour. The study further demonstrates that the major inheritance disputes prevailing in the Pashtun society of Balochistan primarily result from delayed distribution of inheritance, neglect of women's legal rights, and deviation from established Islamic legal principles. It therefore recommends timely distribution of inheritance, protection of all heirs' rights, proper documentation of joint estate management, and the application of Islamic jurisprudential principles in resolving inheritance disputes.