Fatwa No : 83869
Ruling on Disposing of Property After Gifting It to Wife and Children During One's Lifetime

Ruling on Disposing of Property After Gifting It to Wife and Children During One's Lifetime

Respected Mufti Sahiban, Asaalamu ʿAlaykum wa Raḥmatullahi wa Barakatuh,
What do the esteemed scholars of Islam and respected Muftis of the Shari‘ah say regarding the following matter: Zaid, during his lifetime, distributed his property — giving the sons two shares and the daughters one share. Each son was given a house consisting of two rooms, a bathroom, and a kitchen, while the daughters were given houses and shops of comparatively lower value. As for his wife, the house she had been living in since the beginning was officially transferred to her name several years ago through a government process. Now the question is: Can the wife dispose of that house according to her own will — for example, give more to one child, less to another, or exclude someone completely? Kindly clarify the ruling. Please explain, and you shall be rewarded. Wassalam.

الجوابُ حامِدا ًو مُصلیِّا ً

If the mentioned individual, Zaid, did not merely transfer the properties and other items in name only to his wife and children, but also gave them formal ownership and possession, then all those items have become their property. They are fully entitled to dispose of them as they wish. However, if proper ownership and possession were not granted, then all these properties will still be considered Zaid’s, and upon his death, they must be distributed among all rightful heirs according to their respective Shar‘i shares. The exact distribution can be determined once the heirs are clearly identified.

مأخَذُ الفَتوی

كما في الدر المختار: (وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) والأصل أن الموهوب إن مشغولا بملك الواهب منع تمامها، (5/ 690)
و في الفتاوى الهندية: ولا يتم حكم الهبة إلا مقبوضة ويستوي فيه الأجنبي والولد إذا كان بالغا هكذا في المحيط اھ (4/ 377)۔
و في شرح المجلة : تنعقد الهبة بالايجاب والقبول و تتم بالقبض اھ (۴/ ۳۴۴)۔