Fatwa No : 83889
Ruling on giving gifts and presents with possession of ownership

Ruling on giving gifts and presents with possession of ownership

Respected Mufti Sahib,
Assalamu Alaikum!
My husband has passed away. He sold the old house, which was in my name, and in 1983 he bought a new house. This new house was purchased in my name and my two sons names. Both sons were involved in business with their father. The younger son, while still in the business with his father, bought land and built his own house, and separated from us. It has now been 22 years since he has been living separately. Alhamdulillah, the elder son is still with me.
After the younger son moved out, my husband removed both sons’ names from the house and gifted it to me. My husband used to say that after his death, the house should be mine so that the sons would not evict me from it. During some quarrels, he used to say, "Now I am the one who will have to leave the house, because it belongs to you now." He said this several times, in front of my son, daughter-in-law, and her mother (who are all witnesses).
I would like to know whether this house, which is in my name and, documents of which, are in my possession—documents that were given to me by my husband—is solely my property, or will it be considered part of inheritance (warasat)? Kindly guide me in this matter.
Note: The first house was also bought by my husband, and was only registered in my name.

الجوابُ حامِدا ًو مُصلیِّا ً

If the questioner’s husband transferred the said house in her name but did not actually grant her full ownership and control over it, and merely completed the paperwork—removing the sons’ names from the property documents while keeping the questioner's name on them—then according to Islamic law (Sharī‘ah), the said house did not become the sole property of the questioner.
Rather, it remained in the ownership of the deceased husband until his death. After his passing away, this house will be treated like the rest of his estate and must be distributed among all legal heirs according to their respective Islamic shares. The exact method of distribution can be determined by detailing the list of heirs at the time of need.

مأخَذُ الفَتوی

کما في الفتاوى الهندية: ومنها أن يكون الموهوب مقبوضا حتى لا يثبت الملك للموهوب له قبل القبض اھ (4/ 374)۔
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)۔