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Gifts to Children
|Q.) My mother owns a house in which she resides with one married son and a
widowed daughter. She has now decided to 'gift' (Hadya) this house to her widowed
daughter. She has Masha Allah eleven children besides this daughter, all grown-up and
adults. All of them including the son who reside in that house is in agreement with her in
this decision. The arrangement is going to be such that the daughter will be made 'maalik'
of that house and she would be actually living in that house. Of course, if she wishes to
continue to have mother and the brother living with her she may do so.
In Shari'ah, can
she do so at her free will? That is, giving a property as a gift in her life and in
reasonably good health to the one who could be her heir. Is their any limitation like
1/3rd of the total property applicable in this case? Can it be perceived as depriving
other heirs? [Junaid]
A.) In principle, parents in their lifetime should treat all their children
(sons and daughters) equally in everything, including gifting (Hiba). However, due to
circumstances, if they give preference to one over the other, and it does not have
negative consequences, for example, disunity among the children (as is probably in the
referred case), then it will be valid without resentment (Karaahat).
The gift of the entire house to the daughter will be valid. The limitation of 1/3 is
for a bequest from the Estate to a non-heir after death. And Allah Taala Knows Best.