Question:
Assalamualaikum SS Mufti, I want to ask a question regarding hibah. My mom gave one of her grandchildren a plot of land in the form of hibah without the knowledge of any of our family members. What is the ruling for this?
Answer:
Alhamdulillah, praise and thanks to Allah for the many countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
Hibah is a gift to someone so that he could benefit from it. It is a physical gift from a person when he was still alive without hoping for anything in return. Syeikh Muhammad Zuhaili stated in his book:
“Hibah according to fiqh terminology means turning over of ownership to another person without getting anything in return (iwad) while one is still alive. Hibah, gift and donation have a similar meaning.” (See al-Mu’tamad fi al-Fiqh al-Syafie, 3/175)
In al-Fiqh al-Manhaji:
“Hibah is an agreement contract with the purpose of voluntarily turning over an ownership without getting anything in return (iwad) while one is still alive.” (See al-Fiqh al-Manhaji, 6/115)
The Sanctioning and Ruling of Hibah
There are evidences in the Quran, sunnah and ijma’ (majority of scholars) in encouraging the act of hibah in helping and developing the bond of silaturrahim.
Allah SWT state:
فَإِن طِبْنَ لَكُمْ عَن شَيْءٍ مِّنْهُ نَفْسًا فَكُلُوهُ هَنِيئًا مَّرِيئًا
“But if they give up willingly to you anything of it, then take it in satisfaction and ease.”
Surah al-Nisa’ (4)
Syeikh Muhammad Zuhaili state, if a person’s wife gives (hibah) to her husband a part of her mahar (dowry), then it is permissible for her husband to take it. And it is considered as a good gift as long as she does it voluntarily. (See al-Mu’tamad fi al-Fiqh al-Syafie, 3/176)
The jurists agreed that any form of hibah is sunnah. However, it can change to prohibited if the purpose of the hibah is for something sinful or helping in cruelty, unjust matters and bribery. Hibah can also be makruh if it is for the purpose of showing off and being arrogant. (See al-Mausu’ah al-Fiqhiyyah al-Kuwaitiyyah, 42/122)
Requisite and Conditions of Hibah
Hibah is considered as valid if it fulfils its conditions and requisites. Syeikh Muhammad Zuhaili divide the requisites of hibah into three general categories and five specific categories, which are:
- Two parties in agreement, the giver and the recipient.
- The jurists set the conditions for the giver as; mukallaf, rational, reached puberty and capable to contribute.
- Hence, children and mentally unstable people are not eligible to perform hibah.
- The property or material possession that want to be given away in the form of hibah should be fully owned by the giver.
- The recipient of hibah must be a mukallaf, however, if he is not, then his wali could receive it on his behalf.
- Akad Sighah
- It is conditioned that hibah must be performed with ijab and qabul with a clear (sorih) or figurative (kinayah) pronouncement. Hence, kinayah akad is valid the same as a written agreement.
- The pronouncement of ijab and qabul must be continuous and not disconnected such as akad for trade.
- The property or possession that is intended for hibah
- The condition for a possession that is intended for hibah is everything that is permissible for trade. The reason is, the purpose of hibah is changing of ownership.
- The property or possession intended for hibah must already exists. Hence, it is invalid to give an unborn baby goat as
- It must be of value or beneficial. It is invalid to give something that is of no value according to syarak, such as alcoholic beverages and swine.
- The giver must own the possession intended for hibah.
(See al-Mu’tamad fi al-Fiqh al-Syafi’e, 3/178, al-Fiqh al-Manhaji, 6/120)
Al-Qabd (Recipient of Hibah)
When the akad, ijab and qabul for hibah is completed, but the recipient hasn’t received the hibah yet, then the ownership hasn’t changed yet. Thus, the giver has a right to retract the hibah as long as the hibah is not given to the recipient. Syeikh Muhammad Zuhaili said:
“It is not considered as the recipient’s as long as the recipient has not received the hibah (qabd). Thus, the giver has a right to retract his gift.” (See al-Mu’tamad fi al-Fiqh al-Syafie’, 3/182)
This is as stated in a hadith narrated by al-Hakim with an authentic sanad, where it states:
لَمَّا تزَوَّجَ رسولُ اللهِ صلى الله عليه وسلم أُمُّ سَلَمَةِ قَالَ لَهَا: إِنِّي أَهْدَيْتُ إِلِى النَّجَاشِي أَوَاقاً مِنْ مِسْكٍ، وَحُلَّةٌ، وَإِنِّي لاَ أَرَاهُ إِلاَّ قَدْ مَاتَ، وَلاَ أَرَى الَهِدِّيَةَ الَتِّي أَهْدَيْتُ إِلَيْهِ، إِلاَّ سَتَرُدُّ، فَإِذَا رُدَّتْ إِلَيَّ فَهُوَ لَكِ أَمْ لَكُمْ؟ فَكَانَ كَمَا قَالَ هَلَكَ النَّجَاشِي، فَلَمَّا رُدَّتْ إِلَيْهِ الهَدِيَّةُ، أَعْطَى كُلُّ امْرَأَةٍ مِنْ نِسَائِهِ أَوْقِيَّةِ مِنْ ذَلِكَ المِسْكِ، وَأَعْطَى سَائِرَهُ أُمُّ سَلَمَةِ وَأَعْطَاهَا الحُلَّة
“When the Prophet PBUH married Ummu Salamah R.Anha, he said to her: “I gave a Najashi a few ounce of musk and adornments but I think he has passed away. I think that my gifts will be returned to me and when they are returned, they will be yours. Just as it was said about the death of the Najashi, when the gifts are returned, the musk is returned to the wives of the Prophet PBUH and the rest are given to Ummu Salamah, afterwards she also received the rest of the adornments.”
Narrated by al-Hakim in al-Mustadrak (2/188)
Hence, if the akad for hibah is in force before the recipient received it, surely the Prophet PBUH would not accept the returned gifts and he would distribute it the heirs of the Najashi as their inheritance. (See al-Fiqh al-Manhaji, 6/126)
Conclusion
Coming back to the above question, if the requisite and conditions for hibah are fulfilled with documented evidence of the hibah, then the hibah is valid when she is still alive. The giver does not need the consent of others to gift his property as hibah. The reason is, it is not included as one of the conditions for the giver or recipient of hibah and the property already given as hibah cannot be taken back.
Furthermore, hibah is a sanctioned act in Islam. It is even encouraged to give to one’s family members and close relations with the purpose of nurturing one’s silaturrahim. Allah SWT state:
وَآتَى الْمَالَ عَلَىٰ حُبِّهِ ذَوِي الْقُرْبَىٰ وَالْيَتَامَىٰ وَالْمَسَاكِينَ وَابْنَ السَّبِيلِ وَالسَّائِلِينَ وَفِي الرِّقَابِ
“And gives wealth, in spite of love for it, to relatives, orphans, the needy, the traveler, those who ask [for help], and for freeing slaves,”
Surah al-Baqarah (177)
The Prophet PBUH said:
تَهَادَوْا تَحَابُّوا
“Give presents to each other and love each other,”
Narrated by Imam Malik in al-Muwatta’ (2/908)
May Allah SWT give us understanding and guidance in understanding His religion and practise His commandments the best we could. Amin.
Wallahua’lam.