Fatwa No : 84107

What do the esteemed scholars of Islam and the Muftis of the sacred Shariah say regarding the following issue that my father, during his lifetime in 1971, transferred one of his houses in my mother’s name, for which a written declaration exists. It should be clarified that, according to my late mother’s statement, this house along with the declaration had been transferred in her name from the funds of a certain company, amounting to 2,000 rupees, as her dowry (mahr). One or two witnesses of this still exist. However, neither is this detail mentioned in the declaration itself, nor are the witnesses to that declaration alive today, and it is also unknown whether the scribe of that document is alive.
Furthermore, my late father resided in that house with my mother for only 14 or 15 years, without relinquishing possession or granting her independent ownership and control. Later, in 1994, during her lifetime, my late mother transferred this same house to me, at which time the house was already rented out. After that transfer, I have been the one collecting its rent. My father passed away in 1992 and my mother in 2008.
Now that the inheritance of my parents is to be distributed, the question is regarding the house which my late mother had transferred to me, does any other heir have a share in it? Can any of them lawfully demand a portion of it? Or is it purely my right and my ownership? Kindly provide the ruling of Shariah on this matter in the light of the Qur’an, Hadith, and the Hanafi school of jurisprudence. Wasslam

الجوابُ حامِدا ًو مُصلیِّا ً

Since the deceased father had given this house to the mother as part of her dowry (mahr), and witnesses were present for this, it had become her property. Thereafter, if she truly gifted it to the questioner and also handed over possession, and witnesses to that gift are present, then it will be regarded solely as his property. Otherwise, the house will be divided along with the rest of the estate.

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 شرح المجلة: كل يتصرف في ملكه كيف شاء(إلی قوله) لأن كون الشيء ملكاً لرجل يقتضى ان يكون مطلقاً في التصرف فيه كيف ما شاء (المادة ١١٩٢ ج: ٤ ص: ۱۳۲)۔