Fatwa No : 83107
Will the Remaining Brothers and Sisters Have a Share in the Workshop Built at Personal Expense on the Plot Given by the Father?

Will the Remaining Brothers and Sisters Have a Share in the Workshop Built at Personal Expense on the Plot Given by the Father?

Respected Sir, I am a resident of Karachi. I have a very big issue: I own a workshop that my father transferred to me some years ago, along with giving me full ownership and possession. About two years ago, he again told me that whatever he had to give me, he had already given. My father still acknowledges this even now, and the workshop is still in my possession, where I run my business, located in Sector 7-D/1, North Karachi.
I would like to ask you whether my other brothers and sisters will have a share in this plot or workshop, whose value has now reached thirteen million rupees (1 crore 30 lakhs), or not? Also, regarding a house that my father purchased in my mother’s name, in which all of us—brothers, sisters, my mother, and father—lived together, later my sisters got married and my brothers shifted to their own houses, so in the end I was the only one who remained living with my parents. Now my father has also vacated it from me. My question is: from a Shariah perspective, will I have a share in this house as well, or not?
Note: My father had given me the plot, but I built the workshop myself.

الجوابُ حامِدا ًو مُصلیِّا ً

In the mentioned case, the workshop belongs to the questioner, and the other brothers and sisters have no share in it. Furthermore, it should be clarified that even though the respected father had transferred the said house in his wife’s name, under the circumstances described in the question, such a gift (hiba) does not establish her ownership of the house according to Shariah. Rather, it continues to remain the father’s property and part of his estate. During his lifetime, he has full discretion to deal with it as he wishes. Neither the questioner nor any other son or daughter can compel the father to make a distribution. It is therefore necessary to refrain from demanding a share in it.

مأخَذُ الفَتوی

کما في الدر المختار:(و) شرائط صحتها (في الموهوب أن يكون مقبوضا غير مشاع مميزا غير مشغول) كما سيتضح. (وركنها) هو (الإيجاب والقبول) (5/ 688)۔
وفى الفتاوى الهندية: ولا يتم حكم الهبة إلا مقبوضة ويستوي فيه الأجنبي والولد إذا كان بالغا هكذا في المحيط (4/ 377)۔
و في الهداية شرح البداية: الهبة عقد مشروع لقوله عليه الصلاة والسلام تهادوا تحابوا وعلى ذلك انعقد الإجماع وتصح بالإيجاب والقبول والقبض أما الإيجاب والقبول فلأنه عقد والعقد ينعقد بالإيجاب والقبول والقبض لا بد منه لثبوت الملك (إلی قوله) ولنا قوله عليه الصلاة والسلام لا تجوز الهبة إلا مقبوضة (3/ 224)۔