Question
Assalamualaikum
I have a question on hiba below.
My father gifted a piece of land to my mother by transferring the file which was originally bought in his name to my mother’s name. This transaction was with my mother’s consent as she was happy to become owner of the land, but what I have noticed this was my father’s idea who still possesses the land ownership file with my mother’s permission for safekeeping but throughout the process there was no verbal ijab and qabool(offer and acceptance) which I believe are primary conditions for completing hiba. Under the circumstances I have mentioned is the process of hiba complete and is my mother indeed the actual owner of land I have mentioned or do I need to ask them to fulfill conditions of verbal ijab and qabool, and also ask my mother should take possession of land file to complete the process
Answer
In order for a gift transaction to be valid there needs to be a valid offer and acceptance. You have mentioned in your question that your mother has consented to receiving the gift which would indicate that your father has made an offer and your mother has accepted. If there is any doubt in this then it would be best for them to verbalise the offer and acceptance so that it is clear.
Your mother will also need to take possession of the land. Possession here would mean that your father has removed all obstacles from the way of mother which prevent her from accessing and transacting in that land. In this case if your mother has full rights over the land and is able to sell it as and when she wishes then this would mean she has possession over the land. If she chooses to keep the land files with your father then that is permissible and will not impact the gift transaction.
الدر المختار وحاشية ابن عابدين (رد المحتار) (5/ 688)
وركنها) هو (الإيجاب والقبول) كما سيجيء
الدر المختار وحاشية ابن عابدين (رد المحتار) (5/ 690)
وتتم) الهبة (بالقبض) الكامل
Fiqh al-Buyu’ 1:402
Answered by:
Ifta Research Fellow
Checked & Approved by:
Mufti Abdul Rahman Mangera
Mufti Zubair Patel