What is the scholarly opinion that my father had a plot in his name but when he was alive he gave it to his brother but he didn’t change the related paperwork and passed away. He told my elder brother that make sure you give this to your uncle and change the paperwork into his name which my brother did not do for 16 years after my father’s death. Now that plot has been taken by some land mafia and the case is in the courts.
This plot is worth RS 4500000 and my uncle is saying that I am going to take that money from the sale of the house which is in joint names with my father because you didn’t fulfill his commitments after his death as you are his sons and you should’ve done it because you had 16 years to do it. my uncle never chased us two younger brothers and always chased the elder two till last year when he contacted me for the first time I helped him out straight away and Alhamdulillah sorted all the paperwork out for him but unfortunately, that time land mafia had already taken it and case is in the courts.
Please tell me, can he keep this money from the sale of the house against the plot? If he can then who should pay for it out of us?
(Imran Nawaz, United Kingdom)
الجواب بعون الملک الوھاب
Answer: A person gives something from his property to his children or relatives in his life it is called HIBA (gift) in Shari’a. Shari’a has fixed some conditions for the maturity of HIBA. One of the conditions is that the person who is receiving HIBA must take physical possession of HIBA in the life of the owner. If he doesn’t take physical possession of the life of the owner and the owner dies then HIBA will be canceled. The HIBA would be considered as the Inheritance of the late owner and it would be divided into owner’s heirs according to Quran and Sunnah.
A Great Scholar of Islam علامہ علاؤ الدین الحصکفی رحمۃاللہ علیہ wrote:
(1قوله ( بالقبض ) فيشترط القبض قبل الموت ولو كانت في مرض الموت
Translation:
His saying (with possession) so that physical possession is a necessary condition (for the maturity of HIBA) before death (of owner) although in death illness.
(2فی الدرالمختار تتم الھبۃ بالقبض الکامل ۔
)در مختار، کتاب الھبہ، مطبع مجتبا ی دہلی،2/159)
Translation: In Dur-e-Mukhtar, Hiba will complete after full possession.
3) موت احد العاقدین قبل التسلیم مبطل للھبۃ۔
(درمختار ، کتاب الھبہ،باب الرجوع من الھبہ، مطبع مجتبا ی دہلی ، 2/161)
Translation: Death of any one of the contractor before possession cancels HIba.
According to these authentic references, if your uncle didn’t take physical possession of the plot in the life of your father your uncle doesn’t have any right in the plot & Hiba is invalid. His demand is wrong in the light of Shari’a Laws. Now this plot is the property of M.Nawaz & it would be divided in the legal heirs of M.Nawaz.
On the other hand, if your uncle took physical possession of the plot in your father’s life then HIBA is valid as it is mentioned in the above references & he is the owner of the plot since your father gave him. As he is the owner it was his responsibility to complete the paperwork and look after his plot. He doesn’t have any right to ask for ransom for his property from you.
Allah Knows The Best.
Written by Mufti Muhammad Khurram Iqbal Rehmani
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