Correct Procedure Of Gifting
QUESTION:
Around 2008/09 my father informed us (his three children and my mum) that he was distributing his assets, mainly his property assets based in Cape Town, to his children.
He indicated that he was giving the house he and my mother currently live in, to our youngest sister, and his commercial properties to my brother and I jointly.
My sister has taken an opinion from an Aalim that my parents should pay rent to her, which can be used for the upkeep and maintenance of the property. In terms of Shari’ah, who does the house belong to? Does my sister have the right to act independently regarding the house since she is the legal owner in terms of the law?
ANSWER:
In light of Shari’ah, in order for a gifting to be complete, the proper procedure of gifting has to be followed. When gifting a property, the donor must ensure that it is free of his/her possessions. If the donor did not remove his/her possessions from the house when gifting it, the gifting is incomplete and null and void. As such, in the queried scenario, the house still belongs to your father.
Notwithstanding the above, moving one’s belongings from the property could be a difficult process, hence, an easy way of overcoming the issue is by selling the property to the donee for a nominal amount such as R100.00. In this case, the donee who is the daughter becomes the owner of the property without the father having to remove his belongings from the house. We hope that the above explanation clarifies the matter.
وتتم الهبة بالقبض الكامل ولو الموهوب شاغلا لملك الواهب لا مشغولا به والأصل أن الموهوب مشغولا بملك الواهب منع تمامها وإن شاغلا لا فلو وهب جرابا فيه طعام الواهب أو دارا فيها متاعه أو دابة عليها سرجه وسلمها كذلك لا تصح) الدر المختار و حاشية ابن عابدين 5/690)
…. لأن معنى القبض هو التمكين والتخلي وارتفاع الموانع عرفا وعادة حقيقة (بدائع الصنائع في ترتيب الشرائع 5/148)
Re: – Fataawa Uthmaaniyyah Pg.12 Vol.8
Now, coming to the next query. Since the property still belongs to your father due the gifting being incorrect, your sister has no right to ask for any rental.
ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST!
ANSWERED BY:
Mufti Abdul Kader Fazlani
Date: 04 Jumaadal-Aakhirah 1447 / 25 November 2025
CHECKED AND APPROVED BY:
Mufti Yacoob Vally Saheb