Our maternal grandfather had passed away 23 years ago. In his life he had given one of his pieces of land as gift to my father because our father was the only son-in-law. This gifting was known to all the heirs and no one objected though the legal process was not completed. Please note that the maternal grandfather has three sons and my mother, the only daughter. The maternal grandmother is still alive. After the demise of the maternal grandfather our father gave the land’s paperwork to the eldest maternal uncle so he could have the transfer proceedings done because our father used to live overseas. After that whenever our parents asked the maternal uncle about it, the maternal uncle would make excuses. When he was stressed more he said that this land will be shared. Our father passed away this year and the maternal uncle didn’t give the land papers for 23 years. Now the maternal uncle is saying to bring the Fatwa even though he acknowledges that the maternal grandfather had given the piece of land as a gift. But at the same time he also says that getting the land means this that there is no share in the rest of the inheritance. He says that the maternal grandfather had said the same. The property has not yet been distributed.
Please explain with clarification may be they will understand:
Who does the gifted item belong to?
The importance of the witnesses and the legal documents in Islam.
The sin of making misappropriation in the امانت (trust).
الجواب وباللہ التوفیق
On the condition of the accuracy of the question, in the situation inquired about, when the maternal grandfather gave that land as a gift to your father and mother, and it came in the possession, use, and authority then it will be considered belonging to your father and mother, no one will have share in it, though its registry has not been made yet.
But it’s not permissible on the basis of this gift to deprive your mother of her share if your maternal grandfather has more inheritance, this is oppression, great warnings have been mentioned for this oppression.
As far as this claim that the maternal grandfather said not to give share in the other inheritance or giving gift means that there will be deprivation from the rest of the inheritance, this claim is not correct because after one passes away his inheritance is distributed in the Shara’i way, and the deceased’s will in terms of the heirs is not considered applicable. Hence, if the maternal grandfather said not to give still your mother will get the inheritance of the maternal grandfather.
عن أبي أمامة الباهلي قال : سمعت رسول الله صلى الله عليه و سلم في خطبته عام حجة الوداع إن الله قد أعطى لكل ذي حق حقه فلا وصية لوراث (سنن ترمذی : کتاب الوصایا : ۲۱۲۰)
الہبۃ ۔۔۔تصح بالإیجاب والقبول والقبض … والقبض لا بد منہ لثبوت الملک ولنا قولہ علیہ السلام: لا تجوز الہبۃ إلا مقبوضۃ، والمراد ہنا نفي الملک لا الجواز؛ لأن جوازہا بدون القبض ثابت۔ (الہدایۃ / کتاب الہبۃ ۶؍۲۳۸ مکتبۃ البشریٰ )
وَمِنْهَا أَنْ يَكُونَ الْمَوْهُوبُ مَقْبُوضًا حتى لَا يَثْبُتَ الْمِلْكُ لِلْمَوْهُوبِ له قبل الْقَبْضِ(فتاویٰ ہندیہ:۴/۳۷۴)
واللہ اعلم بالصواب