Zaid has 4 sons and 2 daughters. In 1993 he made partitions during his life time to all his sons only and kept 1 share for himself. Later Zaid and his 1 son living together in same house in which Zaid has 70% share and 1 son (Bakar) has 30% share. After the death of my father, I (Siddiqui) asked for tarka then my brother Bakar said Zaid had gifted his 70% share to his wife (Hinda). But it was kept secret. It was Zaid and Bakr’s conspiracy. They dint inform anything about the gift during the lifetime of Zaid. Question: (1) In the above situation, is the gift valid because my father did not give the actual or physical possession to Hinda as they were staying in same house? Even if they had made all legal papers of gift by notarizing by the advocate that Zaid gifted his share to Hinda. But Zaid continued to stayed in the same house till his death. Will this gift be valid? (2) If this gift is invalid then all the heirs will get their share from Zaid’s 70% share?

Answered according to Hanafi Fiqh by Darulifta-Deoband.org

بسم الله الرحمن الرحيم

(Fatwa: 85/84/N=01/1435)

(1 & 2) If the things which Zaid gifted to his wife during his lifetime was common between Zaid and any other one i.e. the son living with him and they were distributable but Zaid gifted it without dividing or gifted it after division but did not give it completely to his wife then this gift was not valid as per the Shariah. It is so mentioned in common books of Fiqh. Hence now after the death of Zaid all these things shall turn his inheritance and shall be divided among all his legal heirs. (Shami, Kitab Al-Hibah 8:496 Published Maktaba Zakaria Deoband):
وكما يكون للواهب الرجوع فيها يكون لوارثه بعد موته لكونها مستحقة الرد اهـ

Allah knows Best!

Darul Ifta,
Darul Uloom Deoband

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