Fatwa No : 83769
The legal status of gifting a house without transferring possession

The legal status of gifting a house without transferring possession

What do the honorable Muftis say regarding the following issue that I am a widow. During his lifetime, my husband disinherited both of his sons from his estate and gifted the house to our two daughters. Even while their father was alive, my sons never gave me a single rupee, nor do they support me now or spend anything on my medical expenses. Now, after my husband's death (which occurred approximately a year and a half ago), both of my sons are claiming a share in the inheritance. Therefore, I need to make a decision in light of Islamic law, and I hope you will kindly provide a fatwa as soon as possible.
Note: The questioner, named Ladli, verbally stated that her sons are demanding a share in the house left behind by their late father. She further explained that the deceased had prepared gift documents in the names of his two daughters (Shabana and Naheeda), although he continued to live in the house with his children until his death. He had married off both daughters approximately 15–20 years ago during his lifetime. The family requests a formal religious ruling (fatwa) on this matter.

الجوابُ حامِدا ًو مُصلیِّا ً

It should be clearly understood that, according to Islamic law, merely registering something in someone’s name does not make them its legal owner, unless full and proper ownership with possession is also handed over. Therefore, in the present case, if the deceased husband of the questioner merely registered the mentioned house in the names of his daughters without giving them formal and legal possession (as seems evident from the question), then under Shariah, the daughters do not become the owners of the house. Rather, the house remained the property of the deceased until his death, and after his passing, it will be distributed among all rightful heirs according to their Islamic shares, just like the rest of the estate. Furthermore, writing a disinheritance declaration (ʿAaq-Naama) does not, in Islamic law, deprive a son or daughter of their rightful share in the inheritance. Therefore, despite the existence of the disinheritance document attached with the question, the sons of the deceased will not be excluded from their father’s estate. They will, in fact, be rightful heirs under Shariah. However, the behavior of the sons, as mentioned in the question, in which they neglected their mother and failed to care for her needs, is religiously impermissible and haram, and they must refrain from such conduct.

مأخَذُ الفَتوی

کما فی الفتاوى الهندية: ولو وهب رجل شيئا لأولاده في الصحة وأراد تفضيل البعض على البعض في ذلك لا رواية لهذا في الأصل عن أصحابنا وروي عن أبي حنيفة رحمه الله تعالى أنه لا بأس به إذا كان التفضيل لزيادة فضل له في الدين وإن كانا سواء يكره وروى المعلى عن أبي يوسف رحمه الله تعالى أنه لا بأس به إذا لم يقصد به الإضرار وإن قصد به الإضرار سوى بينهم يعطي الابنة مثل ما يعطي للابن وعليه الفتوى اھ (4/ 391)
و في الدر المختار: (وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) (5/ 690) واللہ اعلم بالصواب!
وفي حاشية ابن عابدين: (قوله: هو الإيجاب) و في خزانة الفتاوى: إذا دفع لابنه مالا فتصرف فيه الابن يكون للأب إلا إذا دلت دلالة التمليك بيري. (5/ 688)۔