Question: A father in his lifetime says to his son in the presence of others: “I am giving you this house as a gift”. The father continues to live in the house, maintains the house and pays the rates and taxes. The house remains on the name of the father. The father then passes away. Now, the son is claiming that the house belongs to him and should not be part of the estate. Is his claim valid?
Answer: In the light of Sharee’ah, giving/donating of a gift to someone is such a transaction that has several conditions that have to be established and then only will it be valid.
تنعقد الهبة بالايجاب والقبول وتتم بالقبض الكامل (شرح المجلة ج١ص٤٦٢
The conditions are: 1- The person giving the gift should offer the item as a gift; 2- the person to whom the gift is offered should accept it and 3 - he should also take physical possession of the gifted item
In the above situation, the 3rd condition was not found .i.e. the son did not take possession of the house in the father’s lifetime. Hence, the transaction of gifting was not completed. The house will be part of the marhoom father’s estate and will be divided among the heirs.
AND ALLAH KNOWS BEST