What is the ruling of the Sharia regarding a brother who built upon the land of minor orphans with the mutual consent of their mother, lived in it for 20 years, and then demanded the cost of the construction when the heirs requested the division of the inheritance?

What the brother built on the inherited land before its division, with the mother's agreement, falls into two cases:

The first case: If the mother is the guardian of the minors. Here, there is a difference of opinion regarding the permissibility of a guardian disposing of property through a gratuitous loan (عاريّة). Some Hanafis permitted it, while others did not. The Shafi'is and Hanbalis held that the guardian's action must be for the benefit of the ward. If there is a benefit in lending the land for building (such as an increase in its value), then the heirs' right to the land remains. They can demand the building and pay the brother the cost of its construction. Its value is estimated as it stands, not as dismantled.

The second case: If the mother is not the guardian, then her consent is not considered valid in relinquishing the minors' right. In this situation, the brother's ruling is like that of a partner who built on the land without his co-partner's permission. Scholars have two opinions on this matter:

1. The view of the Shafi'is and Hanbalis: The builder is obligated to demolish the building for free because he is an encroacher. The landowner does not own the building or the plantings, either for free or at their value, because they belong to the builder.

2. The view of the Malikis and Hanafis: The two partners divide the land. If the building falls within the builder's share, it is his. If it falls within his co-partner's share, the latter is given the choice either to pay the value of the building as dismantled or the plantings as uprooted, or to hand it over to the builder to demolish and remove it, with the co-partner retaining the right to compensation for the rent of his share that the builder benefited from.

It is advisable for the brothers to reach a mutual agreement. If this is not achieved, the matter should be referred to the Sharia court or discussed directly with scholars.