Fatwa ID: 06646

Answered by: Maulana Burhaan Rahman

Question:

My father gifted a piece of land to my mother by transferring the file which was originally bought in his name to my mother’s name. This transaction was with my mother’s consent as she was happy to become the owner of the land, but what I have noticed this was my father’s idea who still possesses the land ownership file with my mother’s permission for safekeeping but throughout the process there was no verbal ijab and qabool (offer and acceptance) which I believe are primary conditions for completing hiba. Under the circumstances I have mentioned is the process of hiba complete and is my mother indeed the actual owner of the land I have mentioned or do I need to ask them to fulfil conditions of verbal ijab and qabool, and also ask my mother should take possession of land file to complete the process.

In the name of Allah, the Most Gracious, the Most Merciful

Answer:

There are two conditions for hibah (gift-giving) to take place:

• If the individual gifting (the gift) relinquishes ownership of the gift.

والأصل أن الموهوب إن مشغولا بملك الواهب منع تمامها…فلو وهب جرابا فيه طعام الواهب أو دارا فيها متاعه، أو دابة عليها سرجه وسلمها كذلك لا تصح

The essence (of a gift) is to do with the gift, if it is occupied (by any means/in any case) by the one giving the gift, the completion of “gifting” has not been finalized…example(s) which show that gifting isn’t complete:

• A gifted pouch with the gift giver’s food in it
• A gifted house with the gift giver’s things in it
• A gifted animal with the gift giver’s saddle on it [Rad Al Muhtar Vol 5 page 690]

• Additionally, the one being gifted should actually possess the present.

 شرائط صحتها (في الموهوب أن يكون مقبوضا غير مشاع مميزا غير مشغول)

A condition to validate a gift (is that the gift must be in possession, not passed back and forth, unoccupied). [Rad Al Muhtar Vol 5 page 688]

So taking these 2 conditions into consideration the concept of hiba is not complete as your father still possesses the land ownership file and your mother hasn’t got complete possession of it. Your mother should be aware of it and then it is up to her how she wants to keep it/use it etc.

Only Allah knows best.

Written by Maulana Burhaan Rahman

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham