Gift of an undivided share (mushaʿ): a deed of gift by a gravely ill man without acceptance or taking possession

Question

Question: A man had been suffering from retention of urine for two weeks. When it would not go away by any means or treatment, the torments of the illness passed all bounds and no hope of recovery and life remained at all, then, in this state of despair and impaired reason, the sick man wrote a deed of gift of his immovable property — consisting of landlord holdings, shops and residential houses — in the name of his four sons, without specifying their shares among themselves; and he also wrote in it that “we have…

Answer

In the case asked about, the sons have no right to possession or to make a demand on the basis of the deed of gift that was written, because a gift requires offer and acceptance (ijab wa qabul), and if there is no acceptance, taking possession (qabd) is required. Taking possession during the session of the contract (majlis al-ʿaqd)

Source: Fatawa Mahmudiyya

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