HIBA/GIFT IN ISLAM
QUESTION:
As Salaamu Alaikum,
What is the status of oral Hiba in Islam? If any man out of emotions made a statement to his brother that his house is gifted to his brother does it mean that upon his statement now the original owner of his house will be his brother, and his children will not inherit the house upon his death? When it comes to gifting property is verbal statement acceptable in Islam, with no witnesses and written contract? Is it true that under Islamic law if a Muslim wants to gift his sibling or his parent something his mere intention is enough? Muslim when it comes to gifting something to his/her family member does not need to draft a contract or make a verbal statement, mere intention will suffice?
Answer:
Wa Alaikum As Salaam,
When a man makes a statement to his brother (on account of emotion) that he has gifted to him his house, then merely upon this statement the house does not come into the ownership of the brother. This means that simply on account of the statement, the brother will not get the house when the original owner dies, thus depriving the children of inheriting the house. For a gift to be valid and completed, the Fuqaha (jurist experts) have explained that there are certain conditions that must be fulfilled.
In this regard, they have written, ‘From among the conditions for its soundness (validity of Hiba), is that the thing which is being given as a Hiba is fully owned and possessed by the donor; it is not jointly owned or possessed by other; it is free from being engaged with the property of others, that is, it is distinct. Therefore, if a person donates a house to another, but does not donate the goods and items in the house, this Hiba will not be valid’.
‘The essential elements of Hiba are ‘Ijaab’, which is declaration of giving/donating the gift by the donor and ‘Qubool’, acceptance of the gift by the other person (to whom the gift is being given)…. ‘And Hiba is completed with taking complete possession of the gifted property/item’… ‘Taking possession is a condition for the fulfillment and completion of Hiba’, (Raddul Muhtar Ma Ash Shami Vol. 5 Pages 688-690 H.M Saeed Karachi).
From this, it is established that there are three important elements of Hiba which must be fulfilled for the Hiba/gift to be valid. These are:-
- A declaration of giving the gift by the donor.
- Acceptance of the gift by the donee.
- Delivery of gifted item by the donor and taking of possession of it by the donee.
With respect to the declaration of giving the gift (Hiba) by the donor, this must be expressly made in clear words that the donor is giving the item and giving ownership of his property completely to the donee. The donor must be in a position to freely give the gift, sane and competent to make the gift. He must also be of sound mind and has the full understanding to know the legal implications of his act. The donor giving the gift (Hiba) must be free from any coercive or fraudulent influence while making the gift.
It is also essential for the validity of Hiba that the gift being given is fully owned and possessed by the donor. He can only make Hiba of those things which he has full ownership of. It must also not be occupied or attached/mixed with the property of another person. An essential requirement for the completion of the Hiba is that the item given as a gift must be taken possession of by the donee. Without this, the Hiba is not complete and valid.
Therefore, based on the above explanation, merely saying that one has gifted his house to another, does not bring about new ownership since Hiba is not completed by that statement alone.
For this gift to be valid, the owner of the house will be required to empty the house and remove all his valuables and belongings, and also the belongings of others, and hand over the property into the full ownership of the person. It is also essential (for the gift to be valid) that the donor is the full owner of the house and other people’s rights are not attached to the house. When the house is cleared out and handed to the donee, he (the donee), must officially take possession of it. Only at that time would the Hiba of the house be valid.
Therefore, Hiba (gift) would not be valid in a case where a person says, ‘his house is gifted to his brother’ or he says to his brother ‘his house is gifted to him’, and he intends through this statement that when he dies, his brother will take possession of the house and become its new owner.
Gifting property through a verbal/oral statement is acceptable and valid in Islam, even though there are no witnesses and a written contract. However, taking into consideration the many legal issues and court battles that come about in order to establish new ownership of a gifted item, it is better to have 2 male witnesses, and also have a written and signed document regarding the Hiba, especially in matters of large/valuable items, properties etc.
Under Islamic law, mere intention of giving a gift to a sibling or to one’s parents is not enough for the validity of the Hiba. Although drafting a contract and having witnesses are not essential for the validity of the gift, it is essential that the donor (giver) of the gift makes a clear and unambiguous verbal statement/declaration/expression that he/she has gifted the item to a particular person. The person to whom the gift is given must officially accept the gift. The giver of the gift must then surrender and hand over the gifted item to the other person (donee), and he/she must officially take physical possession and ownership of the item without delay.
….وَأَمَّا شَرَائِطُهَا فَأَنْوَاعٌ يَرْجِعُ بَعْضُهَا إلَى نَفْسِ الرُّكْنِ وَبَعْضُهَا يَرْجِعُ إلَى الْوَاهِبِ وَبَعْضُهَا يَرْجِعُ إلَى الْمَوْهُوبِ
……وَأَمَّا مَا يَرْجِعُ إلَى الْوَاهِبِ فَهُوَ أَنْ يَكُونَ الْوَاهِبُ مِنْ أَهْلِ الْهِبَةِ، وَكَوْنُهُ مِنْ أَهْلِهَا أَنْ يَكُونَ حُرًّا عَاقِلًا بَالِغًا مَالِكًا لِلْمَوْهُوبِ
وَأَمَّا مَا يَرْجِعُ إلَى الْمَوْهُوبِ فانواع: منها أَنْ يَكُونَ مَوْجُودًا وَقْتَ الْهِبَة….. ومنها أَنْ يَكُونَ مَالًا مُتَقَوِّمًا فَلَا تَجُوزُ هِبَةُ مَا لَيْسَ بِمَالٍ أَصْلًا
وَمِنْهَا أَنْ يَكُونَ الْمَوْهُوبُ مَقْبُوضًا حَتَّى لَا يَثْبُتَ الْمِلْكُ لِلْمَوْهُوبِ لَهُ قَبْلَ الْقَبْضِ وَأَنْ يَكُونَ الْمَوْهُوبُ مَقْسُومًا إذَا كَانَ مِمَّا يَحْتَمِلُ الْقِسْمَةَ وَأَنْ يَكُونَ الْمَوْهُوبُ مُتَمَيِّزًا عَنْ غَيْرِ الْمَوْهُوبِ وَلَا يَكُونُ مُتَّصِلًا وَلَا مَشْغُولًا بِغَيْرِ الْمَوْهُوبِ
وَمِنْهَا أَنْ يَكُونَ مَمْلُوكًا فَلَا تَجُوزُ هِبَةُ الْمُبَاحَاتِ؛ لِأَنَّ تَمْلِيكَ مَا لَيْسَ بِمَمْلُوكٍ مُحَالٌ. وَمِنْهَا أَنْ يَكُونَ مَمْلُوكًا لِلْوَاهِبِ فَلَا تَجُوزُ هِبَةُ مَالِ الْغَيْرِ بِغَيْرِ إذْنِهِ لِاسْتِحَالَةِ تَمْلِيكِ مَا لَيْسَ بِمَمْلُوكٍ لِلْوَاهِبِ كَذَا فِي الْبَدَائِعِ.
(Fatawa Alamgiriya Vol. 4 Page. 417. Qadeemi Kutub Karachi)
(Qamoos Al Fiqh. Vol. 5 Pages. 326-331 Zam Zam Karachi
(Mawsoo’atul Fiqhiya Vol. 42 Pgs. 120-129 Maktaba Uloom Islamiya Chaman Pakistan)
And Allah Knows best
Mufti Waseem Khan
10/03/2021
QUESTION:
As Salaamu Alaikum,
Thank you for a very detailed response. After carefully studying your answer I have two more question if you can please clarify more on this issue.
Like you said for a transaction to be valid it requires 3 conditions. In a situation where 2 conditions have been fulfilled, where the original owner made the declaration of gifting, and the one being gifted accepts it as well, even the keys to the house are also handed to the donee, but ownership rights paperwork has not been completed, signed and original owner’s belongings and family’s belongings are still present in the house
will the transaction of gift to the donee be valid in such situation ?
And can the original owner’s children consider the property as their own or not?
Hope my questions are easily understood.
I will await your response.
Salam
ANSWER:
Wa Alaikum As Salaam,
Based on what you have written, the transaction of gift to the donee will not be complete, and hence, it will not be established that he is the new owner of the house.
The paper work not being completed and signed, does not affect the completion of the Hiba/gift transaction since it can be completed, and ownership of the gift by the donee can be established without it. However, in what you have described, a very important condition is still absent in the Hiba/gift transaction, which is ‘taking possession’ of the gift by the donee.
The fact that the original owner (donor) has kept his belongings, as well as the belongings of his family in the house, means that he has not surrendered, delivered or made the gift available to the donee so that he can take full-possession of it.
Therefore, in the above case, the gift transaction did not become complete due to the absence of taking possession by the donee and hence, he (the donee) cannot be considered as the owner of the property. While writing about this, the Fuqaha (jurist experts) have stated,
و منها ان يكون الموهوب مقبوضا حتى لا يثبت الملك للموهوب له قبل القبض
(Fatawa Alamgiri Vol. 4 Page. 417 Qadeemi Kutub Karachi)
‘And from among the condition for the Hiba (gift) is that the gifted property must be taken possession of (by the donee), to the extent that ownership is not established for the donee before possession of it’
أنّ القبض فى الهبة بمنزلة القبول فى البيع من حيث إن الحكم – و هو الملك يتوقف عليه فى الهبة كما يتوقف على القبول فى البيع و به صرح فى المبسوط و اشار إليه فى الايضاح
(Fath Al Qadeer Vol. 9 Page 22 Maktaba Rasheediya Queta)
‘Certainly, taking possession in Hiba/gift is on the same level of ‘acceptance’ (Qubool) in commercial transactions, in that the law of Hiba which is ownership, is suspended upon taking possession of the gift in Hiba, just as it is suspended upon ‘acceptance’ (Qubool) in commercial transactions’.
If the original owner (donor) has passed away, then his property will go in inheritance and shall be distributed among the inheritors, which include the children. In this way, they will be owners of the property. However, if he is still alive, it is upon him to continue the gift transaction and complete it by giving full possession to the donee, or revoke that transaction, and leave his property to be divided in inheritance or gift it to his children.
And Allah Knows best
Mufti Waseem Khan
23/03/2021