Question
(#045)
Assalamualaikum
1) What is the ruling regarding gifting ones properties (fixed assets) to ones child during ones lifetime?2)Is it Sunnah to consume something sweet before meals?
Answer
بسم الله الرحمن الرحيم
السلام عليكم و رحمة الله و بركاته
حامدا و مصليا و مسلما
Muhtaram
We have received your question regarding gifting ones properties to ones child during ones life and whether it is Sunnah to consume something sweet before meals.
Our response is as follows:
In the light of Shariah gifting\donating of a gift to someone is such a transaction that has several conditions that have to be established then only will it be valid. A few of the necessary conditions are:
- The واهب (giver) has to mention to the موهوب له (the recipient) that “I am giving this (specific item) to you as a gift”and the recipient has to formally accept the gift. Thus, if the donor does not present the gift to the recipient or the donor presents it to him but he/she does not accept the gift, in both these cases the gift will not be valid and transfer of ownership will not take place.
- After the acceptance of the gift takes place, the recipient of the gift has to take physical possession of it which is easy to do in the case of movable assets. The giver should give physical possession of the item to the recipient and thus relinquish total possession and control of that asset in order for the gift to be valid. The situation of immovable property will be explained in #5 below.
- The possession of the gift must be given to the recipient before the donor passes away.
- The gift should be given and accepted whilst the donor is healthy and not on his death-illness. (i.e. it should be given before Maradhul Maut/death illness).
- In the queried scenario (where fixed property needs to be given), the gifting of the properties will be complete if possession and control is given over to the child. This would be realized by the donor removing all his belongings e.t.c. from the properties and giving over control of the house to the recipent. If the above does not take place, then the gifting transaction remains incomplete and the house will remain in the ownership of the donor. [Addurrul Mukhtaar Vol 5 Pg 688\690]
If the giver of the gift wishes to save himself from removing all of his belongings from the properties (to complete the Hibaa transaction), he may sell the properties to his child at a very nominal sum, e.g. $50 each. This will be sufficient. Also, there will be no need for the children’s names to be put on the property title deeds for the consummation of the Hibaa or transaction to take place according to Shariah. Once the transaction has taken placed and the child has become the rightful owner of the properties he will be liable to pay for all expenses (lights, taxes, e.t.c). However, the family can mutually make an agreement between themselves regarding the paying of the expenses and accordingly the expenses can be distributed. To avoid future misunderstanding, the ideal thing would be to put the properties onto the child’s names as well.
(N.B. It must be borne in mind that the motive when giving such gifts to ones child should not be to deprive any other child, heirs and furthermore, it is recommended that equality is maintained when gifting to the children).
Regarding the bequest, according to Shariah the child will inherit and it is not permissible to make a bequest in favor of an heir who already automatically qualifies as an heir in terms of Shari’ah. If one bequeaths his house for one of his children in order to make him the sole owner, that bequest will not be valid unless the remaining heirs (the children) are baaligh (mature) and they willingly give their consent to such a bequest after the donor’s death. If all the heirs are baaligh and give such consent, then the child will then be considered as the sole owner of the house. If they do not give their consent, they too will inherit shares in the house.
2) There is a general Hadîth that Rasoolullah sallallahu alahi wasaalaam loved sweet things .This Hadith does not mean that that it must be eaten before meals.
On one occasion Rasoolullah sallallahu alahi wasaalaam went to a Sahaabi’s house with Hazrat Abu Bakr (radiyallahu a nhu) and Hazrat Umar (radiyallahu a nhu) .The Sahaabi presented them with a branch of dates and then went to prepare food for them .Imâm Nawawi (rahimahullah) mentions in the commentary of this Hadîth that it is good to serve فاكهة (fruit etc.) before the food, but there is no mention of it being a Sunnat .Similarly on another occassion Rasoolullah sallallahu alahi wasaalaam was with a Sahaabi and after meals he was presented with dates. These two incidents do not necessarily mean that this is Sunnat, as there are many other aspects to classify something as a Sunnat which the Fuqahaa and Muhadditheen have discussed in detail in the Kitaabs of Fiqh and Hadîth. Otherwise at times Rasoolullah sallallahu alahi wasaalaam ate only dates as a meal. At times he just drank milk .Sometimes two consecutive months used to pass without anything to cook in the house.
Imâm Gazaali rahimahullah has mentioned eating fruit before food as a health measure and discussing what is good for the stomach .He also mentions that some are of the opinion that it is better to just eat something sweet after the meal rather than having different varieties of food .Once again he hasn’t stated it as a Sunnat
AND ALLÂH TA’ÂLÂ KNOWS BEST
قال بعضهم الحلواء بعد الطعام خير من كثرة الالوان
(احياء العلوم ج2 ص 16 ,اتحاف الزبيدى ج5 ص 253 )
فمعنى كون سنة الزوائد عادة ان النبى صلى الله عليه و سلم واظب عليها حتى صارت عادة له و لم يتركها الا احياتا لان السنة هى الطريقة المسلةكة فى الدين فهى فى نفسها عبادة ..و لما لم تكن من مكملات الدين و شعائره سميت سنة الزوائد بخلاف سنة الهدى
( رد المحتار ج 1 ص 103 )
أنظر:فيض القدير 208\5،123\4، شرح مسلم 210\14، إحياء العلوم 16،2\2، اتحاف 218\5، تنزيه الشريعة 243\2،الأدب الشريعة 113\3، إمداد الفتاوى 111\4، فتاوى محمودية 405\14، هندية 337\5.
Muhammad Irshad Motara
17th Zul Qa’dah 1433
4th October 2012
