QUESTION:
If a father signed over and transferred a house to his son, but he still oversees and manages the affairs of the house as is common nowadays, and all his belongings remain in the house, will the Hibah be concluded? If the father passes away, will it be considered as the property of the son, or will it form part of the father’s estate?
ANSWER:
If the donor gifts a vacant house (free of his possessions) to the donee, and the donee accepts the gift and takes possession of it, then the donee will be considered as the owner of the house, even though the donor voluntarily continues attending to the upkeep of the property, and even settles the municipal bills of the property on behalf of the donee.
However, if the donor legally transferred the property to the donee whilst the donor’s belongings remained in the house, then the donee will not become the owner of the house. Rather the house will remain in the possession of the donor. It will form part of his estate on his demise in this instance. Legally transferring a property onto someone’s name does not constitute ownership in terms of Shariah if the Shari’ee procedure of gifting was not adhered to.
However, 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 son 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
ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST!
ANSWERED BY:
Maulana Abdul Kader Fazlani
Date: – 04 Rabi ul Awwal 1445 / Date: 20 September 2023
CHECKED AND APPROVED BY:
Mufti Mohammed Desai Saheb