Islamic Fiqh > Endowments (waqf) and property > Hiba: the gift > Fairness between children in the gift
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
The people of knowledge agreed that fairness between children in the gift during health is recommended and that preferring some of them is disliked, per the Prophet's saying (peace and blessings of Allah be upon him) to al-Nu'man ibn Bashir, who had singled out his son with the gift of al-Nihl: Do you not like them to be equal in your piety? Consider how this wording explains the wisdom calling for legislated fairness between children: it is the justice by which the heavens and the earth stand; just as you love them to be equal in your piety, none of them monopolizing it to the others' deprivation, how should one be singled out with the gift, depriving the others? (Bada'i al-fawa'id 4/939). Fairness reconciles hearts, while preference breeds estrangement between them, making fairness better (Bada'i al-sana'i 6/127); it also averts leading them to disobedience and mutual envy (al-Najm al-wahhaj 5/554).
Ibn Abd al-Barr (may Allah have mercy on him): as for his saying, have you given each of your children the like of this present, the scholars agree that fairness in the present between children is recommended, except what we mentioned of the Zahiris who obligate it (al-Tamhid 7/234). As for preferring between them during the illness of death, it is a bequest, not valid for an heir without the heirs' consent, by agreement (al-Tamhid 7/225).
The jurists then differ over the father preferring some of his children without need and without the rest's consent, preferring some or giving some and depriving others: is his disposition valid, preference allowed despite dislike, or invalid, the division to be undone and fairness required? The majority of jurists, the Hanafis, Malikis and Shafi'is, hold that preferring some children over others in the gift, or giving one and depriving the others, is allowed in principle; except Imam Malik, who conditions it on not giving him all his wealth: if he gives part, keeping for himself and leaving his other children, it is allowed. Al-Kharshi notes in Sharh Mukhtasar Khalil (7/82): a man's gift to one of his children of all or most of his wealth is disliked; giving all his wealth to his children divided equally, if they are males and females, is also disliked; dividing it by their inheritance shares is permitted. Abu Yusuf (may Allah have mercy on him): preference is allowed if he does not intend harm.
The majority argued the permissibility of preference and of giving some to the exclusion of others by the story of Abu Bakr (may Allah be pleased with him), who gave to Aisha (may Allah be pleased with her) excluding the rest of his children. Imam Malik narrated from Ibn Shihab, from Urwa ibn al-Zubayr, from Aisha, wife of the Prophet (peace and blessings of Allah be upon him), that she said: Abu Bakr al-Siddiq had given me twenty suq of cloth of his wealth at al-Ghaba; when death seized him he said: By Allah, my daughter, no one is dearer to me to leave rich after me than you, nor heavier on me to leave poor after me than you; I had given you from my wealth twenty suq of cloth; had you cut it and taken it, it would have been yours; it is but today the heir's wealth: they are your brothers and sister; divide it by the Book of Allah. She said: O father, by Allah, had it been such and such I would have left it: they are but names; who is the other? He said: Dhu Batn bint Kharija: I see her a freedwoman (a sahih hadith: Malik in the Muwatta 1438; al-Bayhaqi in al-Kubra 11728).
They also argued by the Prophet's word to Bashir ibn Sa'd: have others witness this: it indicates it is not forbidden, for were it forbidden or void he would not have said so; he does not order witnessing falsehood, unless fleeing the obligations of Allah the Exalted. And because it is a disposition in one's pure ownership, in which no one holds a right; and because consensus forms on the father's right to give part of his wealth to a stranger without giving his child anything: if he chooses to give a stranger while depriving all his children, then giving some children while depriving others is more entitled.
Al-Kasani (may Allah have mercy on him): if he gives some and deprives others, it is permitted in legal ruling, as a disposition in his pure ownership in which no one holds a right, though it is not equity: whether the deprived one is a pious jurist or an ignorant sinner, per the earlier masters; per the later ones, there is no objection to giving the refined and the learned rather than corrupt sinners (Bada'i al-sana'i 6/127). Al-Tahawi (may Allah have mercy on him) reports that al-Mu'alla ibn Mansur transmitted from Abu Yusuf: there is no objection to a man preferring some of his children if he does not intend harm (Mukhtasar ikhtilaf al-ulama 4/142).
Ibn Abd al-Barr: the jurists differ over this meaning: is it obligation or encouragement? Malik, al-Layth, al-Thawri, al-Shafi'i, Abu Hanifa and his companions allowed designating some children over others with the gift and the present, with dislike from some of them, and fairness is dearer to them all. Malik held the meaning of this hadith is of one who gives one of his children all his wealth, and that Abu Bakr gave to Aisha excluding the rest of his children, which Ibn al-Qasim and Ashhab report from him. Then Abu Umar said: most of the jurists hold the meaning of this hadith is encouragement to goodness, piety and excellence, not an obligation barring a man from giving some of his children, unlike the Zahiris; the proof is the consensus reported by al-Shafi'i and others on the permissibility of giving one's wealth to other than one's children: if excluding all of them is allowed, excluding some is more entitled.
The story of al-Nu'man ibn Bashir carries differing wordings, most indicating encouragement not obligation: the Prophet said: have you given your other children the like of this present? He said: no; he said: fear Allah and be fair between your children; he said: he returned and gave back his present (al-Bukhari 2447): the hadith does not mention the Messenger of Allah ordering him to return: it mentions only his return, giving back his present. In a narration: this is injustice; some have: this is an escape; have others witness this; al-Mughira said in his narration: does it not please you that they be equal to you in piety and kindness? He said: yes; he said: then have others witness this; Mujalid reports in his narration: they hold a right over you, that you be fair between them, as you hold a right over them, that they be pious to you.
In a narration: your children hold a right over you, that you be fair between them; so do not make me witness injustice: all these wordings, with have others witness this, are clear proof of the present's permissibility. As for the narration of al-Sha'bi from al-Nu'man ibn Bashir: have you given each of your children? He said: no; he said: I witness only the truth: and likewise Jabir's narration of this story, they may not contradict the preceding: he may have meant the truth that does not fall short of the highest degree of right, what is below it still being truth: this would validate the madhhab of Malik, al-Thawri and al-Shafi'i, who recommend refraining from preferring between children in the present while executing the gift if it occurs: at most one leaves the better, like one giving to a non-relative leaving his relative: he falls short of the right while leaving the better, yet his act remains executed (al-Tamhid 7/225-233, with slight adaptation).
Imam al-Nawawi (may Allah have mercy on him): if he prefers some or gives to some without others, the madhhab of al-Shafi'i, Malik and Abu Hanifa is that it is disliked, not forbidden, and the gift is valid. Tawus, Urwa, Mujahid, al-Thawri, Ahmad, Ishaq and Dawud hold it forbidden, arguing by the narration, I witness no injustice, and other wordings of the hadith. Al-Shafi'i and his supporters argue by his saying, have others witness this: were it forbidden or void he would not have said so.
If it is said he said it as a threat, we answer that the norm in the Lawgiver's speech is otherwise: its absolute wording may carry the imperative of obligation, encouragement or permission; failing these senses, permission. As for his saying, I witness no injustice, it does not indicate prohibition: injustice is deviation from equity and moderation, and everything exceeding moderation is injustice, forbidden or disliked; what preceded shows that have others witness this indicates it is not forbidden, so injustice is interpreted as light dislike. The hadith shows that gifting some children without others is valid, and that if he does not give the rest the like, returning the first is recommended; our companions say: giving the rest the like of the first is recommended; failing that, returning the first is recommended, without obligation (Sharh sahih Muslim 11/66-67).
The Shafi'is say it befits the parent, even advanced in age, to be fair between his children in the present, per the hadith of al-Nu'man ibn Bashir and lest it lead them to disobedience and envy; failing that, the act is disliked but the gift valid: his saying in the hadith, so return it, implies that had the gift been invalid he would not have ordered return. In a narration, al-Nu'man ibn Bashir said his mother, Amra, said she would not be pleased until the Messenger of Allah witnessed; when he learned he had not given all his children the like, the Prophet said: have others witness this: had the gift been invalid he would not have ordered others witnessing it; he abstained from witnessing only lest it become a sunna.
Abu Bakr al-Siddiq (may Allah be pleased with him) preferred Aisha (may Allah be pleased with her) over his other children, giving her twenty suq of cloth from his wealth. It is reported that Umar (may Allah be pleased with him) gave to his son Asim excluding Abdallah, Ubaydallah and Zayd (narrated by al-Shafi'i in al-Mukhtasar 3/122, and from him al-Bayhaqi in al-Kubra 6/178); likewise reported from Abd al-Rahman ibn Awf: no objection. And because giving to all of them is allowed, he deals with them all as with strangers; and because the gift of some children to the father is allowed, the father's gift to some children is allowed.
The preferable in this situation is to give the others what achieves fairness, even by return; if he gave and was fair, return is disliked for him. Likewise if he had one child and gave to him: return is disliked if the child is chaste and pious; if undutiful, or using what he receives in disobedience, let him threaten him with return; if he persists, return is no longer disliked (al-Hawi al-kabir 7/544-545; al-Bayan 8/111; Rawdat al-talibin 4/191; al-Najm al-wahhaj 5/554; Mughni al-muhtaj 3/494; Tuhfat al-muhtaj 8/581).
Abu al-Walid Ibn Rushd al-Qurtubi (may Allah have mercy on him) reports that Ibn al-Qasim does not hold, for one who gives all his wealth as charity to some of his children, that it is judicially restorable. The origin of the question is the hadith of al-Nu'man ibn Bashir: his father Bashir brought him to the Messenger of Allah and said: I have gifted this son of mine a slave I owned; the Messenger of Allah said: have you given each child the like of this present? He said: no; he said: then take it back. Malik carried the command of restitution in the hadith on obligation, interpreting it by his having no other wealth; Ibn al-Qasim generalized it to whoever designates some of his sons with part or all of his wealth, interpreting it as encouragement: this is more apparent, for he did not say it is not lawful for you; he ordered restitution, disliking preference between children, fearing the deprived one's disobedience; as for giving some children part of one's wealth, even most of it, keeping a share for oneself: there is no disagreement in the madhhab nor between the jurists of the cities, Malik, al-Shafi'i and Abu Hanifa: it is permitted, disliked by the command of fairness in the present (al-Bayan wa-l-tahsil 13/370-371; al-Dhakhira 6/289).
Ibn Rushd: they agreed that a man may gift all his wealth to a stranger; they differed over preferring some children in the gift, or giving all his wealth to some of them excluding others. The majority of the jurists of the cities dislike it, but if it occurs it is valid. The Zahiris: preference is not allowed, up to giving all his wealth. Malik: preference is allowed, but giving some of them all the wealth excluding others is not.
The Zahiris' proof is the hadith of al-Nu'man ibn Bashir, whose authenticity is agreed despite differing wordings: his father Bashir brought him to the Messenger of Allah and said: I have gifted this son of mine a slave; the Messenger of Allah said: have you gifted your child the like of this gift? He said: no; he said: then take it back; Malik, al-Bukhari and Muslim agreed on this wording, and they said: restitution implies the gift's nullity. In some wordings: this is injustice. The majority's support: consensus forms on a man's gifting, in health, all his wealth to strangers excluding his children: the child more entitled. They also argued by Abu Bakr's famous hadith: he had given Aisha twenty suq of cloth of the wealth of al-Ghaba; when death seized him: By Allah, my daughter, no one is dearer to me to leave rich after me than you... it is but today the heir's wealth (a sahih hadith, already given): that hadith aims at encouragement, as one of its narrations attests: do you not wish them equal to you in piety and kindness? He said: yes; he said: then have others witness this.
Malik, for his part, held that the prohibition of giving all one's wealth to a single child is more entitled to be carried on obligation: the derived meaning of the hadith's prohibition requires not designating some children with all the wealth. The cause of disagreement is analogy opposed to the wording of the prohibition: the prohibition implies prohibition in its two forms as command implies obligation; whoever combines transmission and analogy carries the hadith on encouragement or specifies some of its situations, as Malik did; there is no disagreement among the proponents of analogy that specifying the sunna's generality by analogy is allowed, likewise shifting it from its apparent: shifting by the wording of prohibition from the derived prohibition to the derived dislike. The Zahiris, analogy not being permitted to them in the sharia, relied on the hadith's apparent meaning and held the prohibition of preference in the gift (Bidayat al-mujtahid 2/246; see Sharh al-sunna 8/297-298; Mukhtasar ikhtilaf al-ulama 4/142-144; Fath al-bari 5/214).
The Hanbalis, and this is the choice of Shaykh al-Islam Ibn Taymiyya (may Allah have mercy on him), hold it obligatory on a man to be fair between his children in the present unless he designated one of them by a meaning permitting preference; if he singled one out with his gift or preferred some of them, he sins, and fairness is due from him by one of two means: giving back what he preferred some with, or completing the others' share, even in the illness of death, until they equal the designated or preferred one; and it should be immediate, like one who marries one of his sons in health and pays his dower, then falls into the dreaded illness of death: he gives his other son as he gave the first (on the sahih, to come), so fairness is achieved; return is not possible here, the wife having owned the dower by the contract; and what the father gives from the second son is not counted from the third even though a gift in the illness of death, for it is remedying an obligation, like repaying a debt; the mentioned return, of the designator or preferer after possession, is specific to the father, excluding the mother and others: the grandfather, the son, the brothers, the paternal uncles.
The proof of the obligation of fairness between children is what al-Bukhari narrated from Husayn from Amir: I heard al-Nu'man ibn Bashir (may Allah be pleased with him) on the minbar saying: my father gave me a gift; Amra bint Rawaha said: I will not be pleased until you have the Messenger of Allah witness; he came to the Messenger of Allah and said: I gave my son from Amra bint Rawaha a gift and she ordered me to have you witness, Messenger of Allah. He said:
Have you given your other children the like of this present? He said: no. He said: fear Allah and be fair between your children. He said: he returned and gave back his present.Narrated by al-Bukhari (2447)
In a narration: his father brought him to the Messenger of Allah and said: I have gifted this son of mine a slave; he said: have you gifted your child the like? He said: no; he said: so take it back (al-Bukhari 2446; Muslim 1623); in a narration: so give it back (Muslim 1623). In a narration: the Messenger of Allah said: O Bashir, do you have children besides this one? He said: yes; he said: have you gifted each of them the like of this gift? He said: no; he said: then do not make me witness: I witness no injustice (al-Bukhari 2507; Muslim 1623). In a narration: he said: does he have brothers? He said: yes; he said: have you given each of them what you gave him? He said: no; he said: this is not fitting: I witness only the truth (Muslim 1624).
This hadith is proof of prohibition: he named it injustice, ordered its restitution and abstained from witnessing it, and injustice is forbidden; who among the Muslims would find his heart at ease witnessing what the Prophet ruled injustice, unfitting, contrary to fear of Allah and to justice? This hadith is among the particulars of the justice Allah commanded in His Book, by which the heavens and the earth stand and on which the sharia was founded. The command in this hadith implies obligation; preference between them breeds enmity, hatred and severance of kinship: it was therefore forbidden, like marrying a woman over her paternal or maternal aunt.
Ibn Qudama: Abu Bakr's statement neither contradicts the Prophet nor is it cited alongside him. It may be that Abu Bakr singled her out with his gift for her need, her inability to earn, her merit as Mother of the Believers, wife of the Messenger of Allah, and her other virtues. It may also be that he gave to her and gave to others of his children, or gave to her intending to give others and death overtook him: his hadith must be carried on one of these two readings, carrying it on the disputed case being forbidden; the least of its states is dislike, and Abu Bakr's apparent state is avoiding disliked things. As for the Prophet's saying, have others witness this instead of me, it is not a command: the least of the command's states is recommendation, and there is no disagreement on its dislike; how could he command him with emphasis while ordering restitution and naming it injustice? Carrying the hadith thus is carrying the Prophet's hadith on contradiction and opposition; had the Prophet ordered witnessing by others, Bashir would have obeyed without returning: this is a threat, yielding what the prohibition of completing it yields, and Allah knows best (al-Mughni 5/387-388; al-Kafi 4/464-466; al-Sharh al-kabir 6/269-273; al-Mubdi 5/371; al-Insaf 7/136-140; Kashshaf al-qina 4/373-376; I'lam al-muwaqqi'in 2/239).
Ibn al-Qayyim (may Allah have mercy on him): this hadith, that of al-Nu'man, is the most conforming to the Quran, more than any analogy on the face of the earth: decisive in its indication, of utmost precision; it was answered by the ambiguous of his saying: everyone is more entitled to his wealth than his child, his parent and all people: his greater entitlement implies disposing of it as he wishes; and by an analogy resembling giving to strangers: yet this ambiguous belongs to the general known by necessity, and analogy does not withstand this decisive, fully clarified text (I'lam al-muwaqqi'in 2/239). In his commentary on the Sunan of Abu Dawud, after citing the authentic narrations: this is explicit: his saying, have others witness this instead of me, is not a permission but a threat, his naming it injustice. All these authentic wordings are explicit on prohibition and nullity: ten readings are drawn from the hadith. Among them his saying, have others witness this instead of me: it is never a permission, for the Messenger of Allah permits neither injustice, nor the unfitting, nor falsehood: he said: I witness only the truth, indicating that what Abu al-Nu'man's father did was not truth: it is void categorically. His saying, have others witness this instead of me, is thus proof of prohibition, like His saying:
"Do as you wish"
Surah Fussilat, 40
and his saying: if you feel no shame, do as you wish: that is, witnessing this is not my affair nor befitting me: it belongs only to one witnessing injustice, falsehood and the unfitting; it is of utmost clarity. I have written on this question a unique work gathering its proofs, showing those who contradict this hadith and refuting them; may Allah grant success (Ibn al-Qayyim's hashiya on Sunan Abi Dawud 9/334-335).
(Continuation of Ibn Taymiyya's passage:) one type is what they need as maintenance in health, illness and the like: fairness in it is giving each what he needs, no difference between one needing little or much; a second type is a shared need of a gift, maintenance or marriage: no doubt preference in it is forbidden. From these two arises a third type: one of them alone has an unusual need, as when paying his debt arising from the compensation of an injury (arsh), settling his dower, or paying his wife's maintenance: the obligation of giving the other the like is discussed; equipping daughters with gifts resembles it; the soundest is that this is done by the customary good (ma'ruf): what exceeds ma'ruf falls under the gift; if one of the children is needy, he is maintained to his sufficiency, the excess being of the gift; if one of the children is a sinner and the father says: I will not give you the like of your brothers until you repent: this is good, and he must except him; if he refuses repentance, he is the wrongdoer; if he repents, the father must give him; but refusing the increase of religion cannot bar him (al-Fatawa al-kubra 4/416-417).
The Hanbali jurists who hold fairness obligatory and preference forbidden state expressly that designating some children for a need is permitted. Ibn Qudama (may Allah have mercy on him): if he designated one of them by a meaning requiring his designation, like need, illness, blindness, a large family, or devotion to knowledge or similar virtue; or diverted his gift from a child for his sin, his innovation, or his using what he takes in disobedience of Allah, there is reported from Ahmad what indicates its permissibility: his saying on designating one of them with a waqf: no objection if for a need; I dislike it if for excess of wealth; the gift is of the same meaning; its literal wording may carry preventing preference and designation in every case, the Prophet not having questioned Bashir in detail about his gift; but the first is preferable, Allah willing, per Abu Bakr's hadith, and because one of them was designated by a meaning requiring the gift: designating by it is allowed as designating by kinship; Bashir's hadith is a specific case bearing no generality, and the Prophet's abstention from questioning may be due to knowing the situation. If it is said that had he known, he would not have said: do you have children besides him? We answer: the question may aim at stating the cause, as his saying to the one who asked him about selling fresh dates for dry ones: does the fresh date diminish as it dries? He said: yes; he said: then no: he knew fresh dates diminish, but he alerted the questioner to the cause of barring the sale; so here (al-Mughni 5/387-388; al-Kafi 4/464-466; al-Sharh al-kabir 6/269-273; al-Mubdi 5/371; al-Insaf 7/136-140; Kashshaf al-qina 4/373-376).
Ibn Taymiyya (may Allah have mercy on him) also reports that adjusting the gift of one's children by their inheritance shares is obligatory: it is Ahmad's madhhab whether the child is Muslim or a protected subject; fairness is not obligatory on the Muslim between the children of protected subjects, nor among the other relatives who do not inherit, like the uncles and the brothers while the father lives; fairness is directed to the sons as to their parents: if he prefers where he was prevented, fairness or restitution is due from him, immediately preferably; having been fair between his children in giving, he may not return in the gift of some of them (al-Fatawa al-kubra 4/416-417).
The majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis in one view, hold it is not obligatory on him to be fair between his other relatives nor to give them according to their inheritance shares, whether they are of one side, like brothers, sisters, uncles and cousins, or of several sides, like daughters, sisters and others. Ibn Qudama: it is a gift to other than children in health: fairness is not due from him, as with non-heirs; the origin is the permissibility of disposing of one's wealth as one wishes; fairness between children became obligatory only by the report, none other being in their meaning: they were equal in the obligation of filial piety, so they were equal in his gift; by this the Prophet argued: does it please you that they be equal in piety to you? He said: yes; he said: then make them equal; this is not found in others; the parent may return in what he gave his child, equalizing by recovering what he gave some, impossible with others; the children, by the intensity of the parent's love and his habit of directing his wealth to them, compete over it and preference weighs heavily on them, which others do not: analogy is thus invalid, and no text exists for others; the Prophet knew Bashir had a wife yet did not order him to give her when ordering fairness between his children, and did not ask him: do you have an heir besides your children? (al-Mughni 5/389; al-Kafi 2/466; al-Sharh al-kabir 6/237; al-Fatawa al-kubra 4/416; al-Insaf 7/136-137; Kashshaf al-qina 4/373-374).
Ibn Taymiyya: adjusting the gift of one's children by their inheritance shares is obligatory: it is Ahmad's madhhab whether the child is Muslim or a protected subject; fairness is not obligatory on the Muslim between the children of protected subjects, nor among the other relatives who do not inherit, like the uncles and the brothers while the father lives; fairness is directed to the sons as to their parents: if he prefers where he was prevented, fairness or restitution is due from him, immediately preferably; having been fair between his children in giving, he may not return in the gift of some (al-Fatawa al-kubra 4/416-417).
The Shafi'is say it is also recommended that the child be fair when giving to his parents: abstaining is disliked as with the children; if he prefers one, the mother first, per the report: she holds two thirds of piety; the brothers and the like are not covered by this ruling: no doubt fairness between them is sought, though less than for the origins and the branches (Mughni al-muhtaj 3/494-495; al-Iqna 2/369). The Hanbalis in the madhhab hold fairness among the other relatives obligatory by analogy to fairness between the children: giving them according to their inheritance shares; if he contravenes and does so, restitution is due from him, and generalizing the gifts: they are in the meaning of the children, their ruling established like theirs, unlike the wives and the freed clients (mawali): fairness is not due from him in the gift (al-Mughni 5/389; al-Kafi 2/466; al-Sharh al-kabir 6/237; al-Insaf 7/136-137; Kashshaf al-qina 4/373-374). Per Kashshaf al-qina 4/374 and Matalib uli al-nuha 4/400, this is what the madhhab of the Hanafis and Shafi'is requires: they state that fairness between children is recommended, not obligatory, a fortiori between the wives; they also state that disposing in one's pure ownership, in which no one holds a right, is permitted, and that consensus forms on the father's giving all or part of his wealth to a stranger without giving his child anything: so he may give to one wife depriving another (Bidayat al-mujtahid 2/246; the detail comes in the book of marriage and maintenance).
If the father gives to some of his sons then dies, the question has two cases: giving in health or in the illness of death. In the first case the jurists differ: if the father gives, in full health, to some of his sons, they take possession, then the father dies without returning, may the rest of the heirs recover it? The majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis in the madhhab, hold that if the father preferred between his children in gifts or designated some with a gift then died before recovering it, it is established for the recipient and binds: the rest of the heirs have no return.
They argued by what Malik narrated from Ibn Shihab, from Urwa ibn al-Zubayr, from Aisha (may Allah be pleased with her), wife of the Prophet: Abu Bakr al-Siddiq had given me twenty suq of cloth of the wealth of al-Ghaba; when death seized him he said: By Allah, my daughter... it is but the heir's wealth: they are your brothers and sister: divide by the Book of Allah. She said: ... had it been such and such I would have left it: they are but names; who is the other? He said: Dhu Batn bint Kharija: I see her a freedwoman (a sahih hadith: Malik in the Muwatta 1438; al-Bayhaqi in al-Kubra 11728): it indicates that had she possessed it, he would have had no return. Likewise Malik narrated from Ibn Shihab, from Urwa ibn al-Zubayr, from Abd al-Rahman ibn Abd al-Qari, from Umar ibn al-Khattab: what is wrong with men gifting their sons gifts then withholding them? If one's son dies he says: my wealth is in my hand, I gave no one; if he himself dies he says: I had given it to him. Whoever makes a gift the recipient does not possess, such that when he dies it passes to his heir: that gift is void (a sahih hadith: Malik in the Muwatta 1439; al-Bayhaqi in al-Kubra 11729).
In Sufyan's narration, from al-Zuhri, from Urwa, from Abd al-Rahman ibn Abd al-Qari, Umar ibn al-Khattab (may Allah be pleased with him) said: what is wrong with people gifting their children a gift, such that when one of them dies he says: my wealth is in my hand, and when the giver dies he says: I had gifted my child? There is no gift but one the child possesses to the exclusion of the parent: if he dies, he inherits (a sahih hadith: al-Bayhaqi in al-Kubra 11729); the gift to his child binds by death as if he were the only one. Ibn Qudama: this is textually reported from Ahmad in the narration of Muhammad ibn al-Hakam and al-Maymuni; it is the choice of al-Khallal and his companion Abu Bakr; Malik, al-Shafi'i, the proponents of opinion and most of the people of knowledge held it.
Ahmad also has a narration, the choice of Shaykh al-Islam Ibn Taymiyya, by which the rest of the heirs may recover what he had given. Ibn Qudama reports another narration from Ahmad: the rest of the heirs may recover what he had given: chosen by Ibn Battah and Abu Hafs al-Ukbari: it is the view of Urwa ibn al-Zubayr and Ishaq. Ahmad said: Urwa narrated the three hadiths, of Aisha, of Umar and of Uthman, then left them for the Prophet's hadith: it is returned during the man's life and after his death, which is Ishaq's view; he said: if the man dies, it is an inheritance between them: none may benefit from what he was given to the exclusion of his brothers and sisters; the Prophet named it injustice in saying: do not make me witness injustice (al-Bukhari 2507; Muslim 1623); injustice is forbidden: not lawful for the doer nor for the giver to seize it, and death does not change it from forbidden injustice: its restitution is due. Abu Bakr and Umar ordered Qays ibn Sa'd to restore his father's division when a child was born to him whom he did not know and had given nothing, after Sa'd's death; Sa'id narrated by his chain, through two paths: Sa'd ibn Ubada divided his wealth among his children, traveled to Syria and died there; then a child was born to him; Abu Bakr and Umar (may Allah be pleased with them) came to Qays ibn Sa'd and said: Sa'd divided his wealth not knowing what would happen; we see you should restore this division. Qays said: I would never alter what Sa'd did, but my share belongs to him (Sa'id ibn Mansur in his Sunan, p. 119, no. 291-292): that is the meaning of the report.
If the father gives, in his illness of death, to some of his heirs, his gift takes no effect and is ruled like his bequests. Ibn Qudama: gifts in the illness of death are like a bequest: counted from the third when made to a stranger, by agreement; they likewise take no effect for the heir. Ibn al-Mundhir: all the scholars I retain agree that gifts in the illness in which the giver dies are ruled like bequests: it is the madhhab of the Medinan (Malik), al-Shafi'i and the Kufan (Abu Hanifa) (al-Ijma 602; al-Ishraf 7/87). Ibn Abd al-Barr: the gift of parents to children is permitted during the parents' health: the sick man's act on his wealth is a bequest, and a bequest to an heir is void: it is an agreed matter on which discussion is spared (al-Tamhid 7/225).
If he gave one of his sons in health then the other during his illness, Ahmad suspended judgment: he was asked about one who married off his son and paid his dower, then fell ill while having another son: does he give him during his illness as he gave the other in health? He said: if he gave him in health, there are two views: one: it is not valid: his gift in the illness is like his bequest, and had he bequeathed it, it would not have been valid; likewise if he gives it. The other: it is valid: fairness between them is obligatory and there is no other path but giving to the other: this gift becomes obligatory and therefore valid, like a debt repaid (al-Fatawa al-kubra 4/517). Shaykh al-Islam Ibn Taymiyya was asked about a man with two daughters and a divorced wife who was pregnant: he wrote for his two daughters two thousand dinars and four properties; then a boy was born to the divorced wife, for whom he wrote nothing; then the parent died leaving an estate exceeding... (the rest comes in the next sheet).
End of the previous answer: if we say he restores it after death, the executor does so; if the second dies before restitution and the wealth is intact, he restores it too; if the second's estate was divided, sold or gifted before restitution, the matter is discussed: division and possession resemble the contracts of the Jahiliyya and admit interpretation; likewise if the favored one disposed during his father's life by sale or gift with continuity of possession: restitution is discussed, though this is connected possession in corrupt contracts; the father may return in what he gifted his child so long as no right or interest attaches to it: he returns to the extent of the debt and of the interest, and in the excess (al-Fatawa al-kubra 4/517).
The jurists differ over the recommended fairness: is it according to Allah's division in inheritance, to the male the share of two females, or is the female given as the male? Muhammad ibn al-Hasan among the Hanafis, some Malikis like Ibn Shabban, the Shafi'is in one view and the Hanbalis hold that the recommended fairness is dividing among them according to Allah's division in inheritance: to the male the share of two females: Allah so divided the inheritance among them, giving the male the share of two females; what is most worthy of being followed is Allah's division: if he divides his wealth among them in his lifetime, he must divide it as Allah divides after death, by analogy; it is her share of that wealth had the giver kept it until his death.
The lifetime gift is one of the two states of the gift: he gives the male the share of two females as in the state of death (inheritance): the gift is hastening what occurs after death and must conform to it, as one who pays zakat in advance of its obligation pays it in the manner of its payment after obligation, and likewise the advanced expiations; the male is more in need than the female: when both marry, the dower, the maintenance and that of the children fall on the male, the female being entitled to them: he is thus more worthy of preference for his greater need; Allah divided the inheritance preferring the male with this meaning, and this extends to the lifetime gift.
Ibn Qudama: Bashir's hadith is a specific case, the relation of a situation bearing no generality: its ruling is established only in what resembles it; we do not know the state of Bashir's children: whether he had females or not; it may be the Prophet knew he had only sons, and fairness was then carried on division by the Book of Allah the Exalted; it may also be he meant fairness in the origin of giving, not its manner: division does not require equality in every respect; likewise the other hadith; the proof is Ata's saying: they divided only by the Book of Allah the Exalted (a sahih hadith: Abd al-Razzaq in his Musannaf 16499; al-Tabarani in al-Kabir 18/348, no. 884): it is a report concerning them all, the sahih of Ibn Abbas's report being that it is mursal (al-Mughni 5/389; al-Sharh al-kabir 6/270; al-Zarkashi's sharh 2/208; Kashshaf al-qina 4/375; Matalib uli al-nuha 4/400; Munar al-sabil 2/361-362).
Abu Yusuf among the Hanafis, the chosen view, some Malikis like Ibn al-Qassar and the Shafi'is in the madhhab hold that the recommended fairness is: to the male like the female, per what is reported from Ibn Abbas as the Prophet's words: be fair between your children in the gift: were I to prefer, I would prefer the women (a weak hadith: al-Tabarani in al-Kabir 11997; al-Bayhaqi in al-Kubra 11780); the lifetime gift makes male and female equal, like maintenance and clothing. Muslim narrated from al-Sha'bi from al-Nu'man ibn Bashir: my father carried me to the Messenger of Allah and said: Messenger of Allah, witness that I have given al-Nu'man such and such of my wealth. He said:
Have you given each of your sons as you gave al-Nu'man? He said: no. He said: have others witness this; then he said: does it not please you that they be equal to you in piety? He said: yes indeed. He said: then no.Narrated by Muslim (1623)
In a narration: have you given each of your children this? He said: no; he said: do you not wish from them piety as from this one? He said: yes; he said: I do not witness (Muslim 1623). In a narration: have you given your other children the like of this present? He said: no; he said: fear Allah and be fair between your children; he said: he returned and gave back his present (al-Bukhari 2447).
The Prophet's command of fairness between them in the gift, as a man loves fairness in piety, proves he meant fairness between females and males: nothing is sought from the daughter other than what is sought from the son; the Prophet wanted from the father for his children what he wants from the children for him, and what he wants from the female as piety equals the male's: what he wanted of the gift for them, the female had as the male. In Abu al-Duha's hadith the Prophet said: do you have children besides him? He said: yes; he said: did you not make them equal? (al-Nasa'i in al-Kubra 6212); he did not say: do you have sons or daughters besides him?: their ruling is equal with him; otherwise he would not have mentioned fairness without knowing they were all males: his abstention from that question establishes the equality of their ruling with him.
It differs from inheritance: the heir is content with what Allah assigned him, unlike this; the male and the female differ in inheritance only through agnation (asaba), and by the fixed share they are equal, like the uterine brothers and sisters; the gift to the children was commanded as a maintaining of kinship ties (Sharh ma'ani al-athar 4/88; Ikhtilaf al-ulama of al-Marwazi 1/274-275; Mukhtasar ikhtilaf al-ulama 4/142; al-Bayan wa-l-tahsil 13/371; al-Nawawi's Sharh sahih Muslim 11/66; al-Hawi al-kabir 7/544-545; al-Bayan 8/109; Rawdat al-talibin 4/191; al-Najm al-wahhaj 5/555; Mughni al-muhtaj 3/494; Tuhfat al-muhtaj 8/581-583; al-Dibaj 2/543-544; al-Mughni 5/388-389; Fath al-bari 5/214; al-Zurqani's sharh 4/54; Ibn Abidin's hashiya 4/444-445).
The Shafi'is in one statement prefer the female over the male. As for Imam Malik, Ibn Abd al-Barr says of him: I do not retain any statement of Malik on this question (al-Tamhid 7/235; al-Istidhkar 7/228). Al-Kharshi and al-Sawi: a man's gift to one of his children of all or most of his wealth is disliked by agreement; giving all his wealth to his children divided equally, if they are males and females, is also disliked; dividing it by their inheritance shares is permitted (Sharh Mukhtasar Khalil 7/82; al-Sawi's hashiya on al-Sharh al-saghir 9/164).
No disagreement exists among the jurists: it is recommended for a man married to more than one wife to be fair between them in presents and gifts; the jurists differ: is fairness obligatory or recommended without obligation? This is outside the obligatory maintenance of clothing, housing, food and drink. The Malikis and the Hanbalis hold fairness and equality between the wives in gifts recommended, not obligatory.
Imam Abu al-Walid al-Baji (may Allah have mercy on him): the third kind of preference is giving each of the two, of maintenance, clothing and expense, what is obligatory for her, then preferring one by clothing her in brocade, silk and ornaments: in al-Utbiyya and the narration of Ibn al-Qasim, Malik permits it: this kind of preference is not barred from one who has fulfilled her due, and the husband is not compelled: he may do it if he wishes (al-Muntaqa, sharh al-Muwatta 3/353). Imam al-Qurtubi: Malik said he must be fair between them in maintenance and clothing if they are of equal standing, without its being due between differing standings; Malik permitted preferring one of them in clothing without partiality: love and hatred lie outside acquisition and fairness in them is impossible (al-Jami li-ahkam al-Quran 14/217).
Ibn Qudama: equality between his wives in maintenance and clothing is not due if he fulfills each one's obligatory due. Ahmad said of the man with two wives: he may prefer one over the other in maintenance, pleasures and clothing if the other is at sufficiency: he buys the finer clothing for this one while that one suffices: equality in all this is difficult: were it obligatory, he could fulfill it only with hardship and the obligation falls, like equality in conjugal relations (al-Mughni 7/232; al-Sharh al-kabir 8/151).
Ibn Qudama also says equality between his other relatives, nor giving them according to their inheritance shares, is not due, whether they are of one side, like brothers, sisters, uncles and cousins, or of several sides, like daughters, sisters and others: the gift to other than children in health imposes no fairness, as with non-heirs; the origin is the permissibility of disposing of one's wealth as one wishes; fairness between children became obligatory only by the hadith: they were equal in the obligation of filial piety and so equal in his gift; by this the Prophet argued: does it please you that they be equal in piety to you? He said: yes; he said: then make them equal; this is not found in others; the parent may return in what he gave his child, equalizing by recovering what he gave some, impossible with others; the children compete by the intensity of the parent's love and preference weighs heavily on them, which others do not: analogy is invalid and no text exists for others; the Prophet knew Bashir had a wife yet did not order him to give her, nor asked him: do you have an heir besides your children? (al-Mughni 5/389; al-Kafi 2/466; al-Sharh al-kabir 6/237; al-Fatawa al-kubra 4/416; al-Insaf 7/136-137; Kashshaf al-qina 4/373-374).
Al-Buhuti and al-Ruhaybani: the giver, male or female, owes adjustment between those who inherit from him by kinship, not by marriage nor clientage: adjustment is not due, that is, between the wives and the clients: no equality in the gift, unlike kinship (Kashshaf al-qina 4/374; Matalib uli al-nuha 4/400). This is what the madhhab of the Hanafis and Shafi'is requires: they state fairness between children is recommended, not obligatory, a fortiori between the wives; they also state that disposing in one's pure ownership, in which no one holds a right, is permitted, and consensus forms on the father's giving all or part of his wealth to a stranger without giving his child anything: so he may give to one wife depriving another (Bidayat al-mujtahid 2/246; the detail comes in the book of marriage and maintenance).
(End of the previous discussion:) pure loss admitting no worldly benefit is not owned by the boy: his gift is not counted and entails neither obligation nor commitment. The jurists differ over the gift of the discerning boy: is it valid from him? The majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis in the madhhab, hold that the boy's gift is not valid, whether discerning or not: the giver must be among those possessing the capacity of donation: the gift is a liberality, and one lacking the capacity of donation lacks the gift; the boy's gift is thus not permitted: he lacks the capacity of donation, it being pure loss admitting no worldly benefit, and the boy does not own it (Bada'i al-sana'i 6/118; al-Jawhara al-nira 3/235-240; al-Ikhtiyar 2/113-114; al-Lubab 1/440-443; al-Inaya 13/235; Mukhtasar al-wiqaya 2/409; Tabyin al-haqaiq 5/191; Radd al-muhtar 6/373; al-Bahr al-raiq 5/279, 7/284; al-Sharh al-kabir with al-Dasuqi's hashiya 5/491; Sharh Mukhtasar Khalil 7/103; Mughni al-muhtaj 3/487; al-Insaf 5/318; Kashshaf al-qina 4/361-365; the same references serve the rule of pure harm). The Malikis said: if he gives a gift of reward without his guardian's permission, the guardian chooses between ratification and restitution.
(End of the previous discussion:) the child does not fall under guardianship by the saying: no harm shall be inflicted nor reciprocated in Islam, and by: whoever shows no mercy to our young ones is not of us: this is why he owns neither divorcing his wife, nor freeing his slave, nor the other purely harmful dispositions. The jurists then differ: if the father stipulated the counter-value and it is a gift of reward, may the father or the guardian give from the child's wealth stipulating the counter-value? Imam Abu Hanifa, Abu Yusuf, the Malikis and the Shafi'is hold that the father may not give from his young child's wealth, even with counter-value: he is barred from the wealth by the child's own right; whoever lacks the capacity of donation lacks the gift, with or without counter-value; and the gift with stipulated counter-value is a liberality at first that becomes a sale in the end: the proof is that it transfers ownership before possession; had it been a sale from the outset, ownership would not have awaited possession, sale transferring ownership by itself: it was therefore a liberality at first; these lacking the capacity of donation, the gift is invalid from the outset and cannot become a sale thereafter (Bada'i al-sana'i 6/118-119; al-Bahr al-raiq 7/295; al-Sharh al-kabir with al-Dasuqi's hashiya 5/521; al-Taj wa-l-iklil 5/30; Sharh Mukhtasar Khalil 7/120).
The Shafi'is permit giving from the child's wealth if the gift is by joyful generosity (ghibta): Shaykh Zakariyya al-Ansari said: he does not gift his wealth with reward or otherwise: it is a liberality; gift and manumission are not intended for counter-value; yet if a known reward is stipulated in a gift by joyful generosity, it is valid, per what passed regarding the option: conditioned by a known reward, it is a sale (Asna al-matalib 2/213; Mughni al-muhtaj 3/488). Muhammad ibn al-Hasan holds the father may give from the child's wealth if with counter-value: whoever owns sale owns gift with counter-value; the gift is a transfer of ownership: should the counter-value be stipulated in it, it is a transfer with compensation, and this is the meaning of sale: only the wording differs, wording being immaterial once the meaning agrees, with the wording of sale and the wording of transfer. And for both parties: the gift with stipulated counter-value is a liberality at first then a sale in the end, the proof being that it transfers ownership before possession... (Bada'i al-sana'i 6/118-119; al-Bahr al-raiq 7/295; Durrar al-hukkam 2/398).
Al-Qurtubi (may Allah have mercy on him): as for the young child and the insane, there is no disagreement on their interdiction (Tafsir al-Qurtubi 5/29); the question was detailed in the book of interdiction of our encyclopedia. Third: being of capacity of disposition, not interdicted: the jurists require of the giver capacity of disposition without interdiction, interdiction being of two kinds. The first kind: the gift of the interdicted prodigal. The jurists differ: is his gift valid? The two companions among the Hanafis, Abu Yusuf and Muhammad, the Malikis, the Shafi'is and the Hanbalis hold that the prodigal's liberality is not valid, whether by gift or other liberality, and likewise exchanges, as passed in interdiction: he is interdicted, the interdicted one's disposition is not valid: his gift is void, his act lacking interest.
The Shafi'is and Hanbalis say the prodigal's gift is not valid even with his guardian's permission, and the guardian may not give from his wealth (Mughni al-muhtaj 3/488; Kashshaf al-qina 4/365). The Malikis said: if the prodigal gives a gift of reward without his guardian's permission, the guardian chooses between ratification and restitution; without exchange, as giving part of his wealth or charity, it is not valid even with the guardian's permission (al-Sharh al-saghir with al-Sawi's hashiya 7/348-349).
Abu Hanifa holds the prodigal's dispositions valid if he reached sanity then became prodigal: the free, adult, sane prodigal is not interdicted in his view, and his disposition in his wealth, by gift or otherwise, is permitted, even if a wasteful corrupter, squandering his wealth without purpose or interest, in good or evil. He is not interdicted in Abu Hanifa's view because he is a legally addressed, sane adult: stripping his guardianship would outrage his humanity, likening him to beasts, harder than squandering and wasting wealth; this is known to the possessors of intellect and noble souls, and bearing the greater harm to repel the lesser is not permitted; the question was detailed in the book of interdiction (al-Mabsut 24/157-158; Bada'i al-sana'i 7/171; al-Ikhtiyar 2/115-116; al-Jawhara al-nira 3/244-246; al-Lubab 1/444-445; Mukhtasar al-wiqaya 2/410; al-Hidaya 3/282; Tabyin al-haqaiq 5/195; al-Bahr al-raiq 8/91; Majma al-damanat 2/899; al-Kafi 1/423; Ahkam al-Quran of Ibn al-Arabi 1/403-422; Tafsir al-Qurtubi 5/30-38; al-Qawanin al-fiqhiyya, p. 211; al-Muntaqa 6/107; sharh hudud Ibn Arafa, p. 554; al-Sharh al-kabir with al-Dasuqi's hashiya 5/491; Sharh Mukhtasar Khalil 7/103; al-Sharh al-saghir with bulghat al-salik 9/201; al-Hawi al-kabir 6/355-356; Rawdat al-talibin 3/384-385; al-Nawawi's Sharh sahih Muslim 12/191; Mughni al-muhtaj 3/116-487; Nihayat al-muhtaj 4/420; al-Najm al-wahhaj 4/410; al-Mughni 4/303; al-Ifsah 1/430; Kashshaf al-qina 4/361).