Sharʿī Ruling on Inheritance and Gifts: Division of House and Belongings
Source: Fatāwā Rāshidiyyah, p. 583
Question:
What do the scholars say regarding the case where a man had:
- A residence and a shop that he transferred (hiba) in his wife’s name, also recorded in government documents, though he continued to collect the rent himself.
- Now, regarding the belongings present in this house: will they be considered the wife’s property, or will they be distributed among the heirs?
- Likewise, there was another house jointly owned by the deceased and his sister. The deceased transferred this house to his nephews, though no one had yet taken residence in it.
Please clarify according to the Sharīʿah of Muhammad ﷺ whether these belongings and houses will be counted as part of the gift (hiba) or divided among the heirs.
Answer:
Al-ḥamdu lillāh, waṣ-ṣalātu wa-s-salāmu ʿalā Rasūlillāh, ʿammā baʿd!
- The house that the deceased gifted (hiba) remains valid.
- ◈ If the belongings were also gifted with written documentation or witnesses, they will be included in the hiba.
- ◈ If there is no written document or witness, then the belongings will be divided among the heirs.
- ◈ If the deceased personally gifted some items to his wife, those remain validly hers.
Condition of Possession (Qabḍ) in Hiba
Some scholars considered possession a condition for the validity of a gift, citing the narration:
((لا تجوز الهبة إلا مقبوضة))
(“A gift is not valid except if taken into possession.”)
However, this ḥadīth is weak, as clarified by al-ʿAllāmah Nāṣir al-Dīn al-Albānī رحمه الله in al-Aḥādīth al-Ḍaʿīfah wa al-Mawḍūʿah (p. 360):
“لا أصل له مرفوعا، وإنما رواه عبد الرزاق من قول النخعي كما ذكره الزيلعي في نصب الراية 4/121.”
It has no basis as a Prophetic ḥadīth; it is only narrated from al-Nakhaʿī.
This proves that possession is not a condition in hiba.
Another proof is from the incident of the tribe of Hawāzin when they embraced Islam:
Ṣaḥīḥ al-Bukhārī (Kitāb al-Wakālah, ḥadīth 2307–2308):
The Prophet ﷺ returned their captives and wealth, asking the Companions if they consented to forgo their shares. The Companions agreed. If possession were a condition, they could not have returned what they had never taken possession of.
Similarly, in al-Rawḍah al-Nadiyyah (p. 165):
“ولا حجة لمن اشترط القبض في الهبة.”
(There is no valid proof for those who stipulate possession as a condition in hiba.)
Summary:
◈ The house gifted by the deceased remains valid.
◈ If the belongings were gifted with written proof or witnesses, they are included in the hiba.
◈ If no proof exists, then the belongings are to be divided among the heirs.
◈ Items specifically gifted to the wife remain in her ownership.
◈ According to the Sharīʿah of Muhammad ﷺ, possession (qabḍ) is not a condition for the validity of hiba.
ھذا ما عندی واللہ أعلم بالصواب
