Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh.  (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

Assalm wa alykum

My wife`s grand father made owner of a shop by a sale-deed to my wife and her three sisters in 1992, that time my wife and her sisters were non-adult (and my wife was unmarried). after wards in 1999 My wife`s grand father made a Will in witch He write that my wife and her sisters are not owner and I (My wife`s grand father) this shop gives to mosque(masjid) and mosque will be owner that shop.
so I want to know that what will be shara`i attitude while sale-deed did not cancel and my wife and her sisters wants to take own part (monthly rent of shop).

Jazakallah Khair.  

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Answer:

Gift and Will

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is no one (no idol, no person, no grave, no prophet, no imam, no dai, nobody!) worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

If the grand-father has gifted the shop to the four sisters, then Shariah Law dictates that the sale-deed is valid and the property now belongs to the four sisters. The will that was subsequently made to transfer the property to the mosque would be deemed invalid in Shariah Law, for one cannot will or bequeath something that has already been gifted to another or does not belong to him.

Shariah Law will only look at the evidence available and presented to them in court, and since the sale-deed is in the name of the four sisters, the property will be deemed to belong to them.

Even if the grand-father had gifted the property to his four grand-daughters at one time, and subsequently had a change of heart and wished to take it back and bequeath it to the mosque, it would not be consonant with the character of a believer to do so.

Sahih Al-Bukhari Hadith 9.105 Narrated by Ibn Abbas

The Prophet (saws) said, "The one who takes back his gift is like a dog swallowing its own vomit, and we (believers) should not act according to this bad example."

But if the grand-father had simply transferred the sale-deed to the name of his four grand-daughters as a trust on a temporary basis for legal or tax purposes, and had intention or made his intention known to the guardians of the girls at the time of the transfer, then it would only be right for the sisters to return back the trust which was never gifted to them nor did it ever actually belong to them.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan