Ownership Of Property

QUESTION:

During his lifetime, my father purchased a residential property. However, the property was registered in the name of my uncle. My brother lived in the property, rent-free, as per my father’s wishes. My father had, during his lifetime, verbally expressed his wish to give that property to my mother but there was no formal handover. My parents were married in community of property, according to South African law.

My father also had entrusted his brother with the safekeeping of his money. To date, my uncle has handed over all of the money except R35000, which he intends to use for the cost of transferring the property. These funds were not intended to be used for the transfer costs.

Please clarify, in terms of Shariah, who the beneficiary of the property is? How do we reconcile the matter of the R35000 held by my uncle?

ANSWER:

The property will form part of the estate for distribution to the heirs. The gift was incomplete as possession was not handed over to your mother during your father’s lifetime. The effect of marriage in community of property or contributing operationally, does not influence the Shar’i ruling. The agreement of the family cannot override the Shar’i distribution. They may gift their share of the house voluntarily, not by compulsion, to their mother after its distribution.

A gift is made by offering and acceptance. However, it is only completed with possession being taken by the recipient. Ownership is transferred by giving the person the gift in a way that they are free to do whatever they want to with it, unimpeded. Merely intending to give a gift isn’t sufficient for the gifting to be complete. Shari’ah recognizes the actual owner and not who is registered on the deed. The funds held by your uncle for transfer costs will be permissible if he is the executor or acting on behalf of the executor. He must use it to hand over the property to the heirs.

)مختصر القدوري ١٢٤(

الهبة: تصح بالإيجاب والقبول وتتم القبض

الدر المختار وحاشية ابن عابدين (رد المحتار) (5/ 690 [1]

(وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) والأصل أن الموهوب إن 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

ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST!

ANSWERED BY:

Mufti Umar Farooq Rangila

Date: 04 Shabaan 1447 / 24 January 2026

CHECKED AND APPROVED BY:

Mufti Yacoob Vally Saheb