Giving the file of a property to a person without signing the transfer papers

Q: There is a situation please guide:

Under shariah law, is it true that if a man gives the file of his property to someone and verbally says to that person that by giving his file to him he has become the owner of his property without signing the transfer papers. Is it true that in this case the one given the file will become the owner of the property eventhough the transfer of ownership papers were not signed rather only the file was handed over?

Firstly, when the original owner handed over the file he did intend to give the property to his brother. Obviously along with his actions, he is also required to express his intention in words to complete the transaction islamically. The words that he used while giving the file were only "I intend to" he didn't complete the sentence by saying "give the property to his brother". So in such a situation will his actions and words that he used do they denote the transfer of the property?

Secondly, the original owner is refusing to sign the transfer documents because he says that he is still the owner of the property and wants to keep it for his children's future. If the recipient is given the transfer document his children will be deprived of the asset. He says, until he signs the papers, he still remains the owner of the property while his brother believes he is now the actual owner of the property. From the shariah point of view whose stance is correct?  This has caused a dispute in the family, hence clarification will be required in the matter.

A: If he did not verbally say that he had gifted the property to his brother and nor did he give him complete control over it, he will still remain the owner. However, if he did say that he had gifted the property to his brother and he gave him complete control over it, then the property will belong to his brother. It will not be permissible for him to take it back against his brother's will.

And Allah Ta'ala (الله تعالى) knows best.

 

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)