Recently, the Transfer of Property (Amendment) Bill, 2026, was passed in the National Parliament. One of its significant features is that it creates an opportunity to transfer property among specified close relatives while reserving for the donor the right to use and enjoy that property during his or her lifetime.
An important objective of the Bill is to protect parents and other donors by ensuring that they can continue to use and enjoy the property during their lifetime even after transferring it to another person.
Nevertheless, in the case of a Muslim, it is also necessary to give serious consideration to the potential Shariah-related implications of such legal arrangements and the risks of their misuse.
The purpose here is not to pronounce a definitive Shariah ruling on the Bill as a whole. Rather, the principal objective is to identify the potential Shariah-related complications, inequalities, and unintended consequences that may arise in Muslim families and in the distribution of property when its provisions are implemented.
Risk 1: The Possibility of Depriving Heirs of Their Prescribed Shares in Inheritance
In my view, this is one of the most significant Shariah-related risks associated with the Bill.
The Qur’an does not leave inheritance to be governed by an ordinary system of family distribution. Rather, it specifies the shares of the heirs. The Qur’an describes these allocations as ordinances prescribed by Allah, and the subsequent verses refer to them as the limits set by Allah (ḥudūd Allāh) (Surah al-Nisāʾ, 4:11–14).
The risk can be illustrated by an example.
Suppose a Muslim father has two sons, two daughters, and a wife. During his lifetime, he transfers most of his immovable property to one of his sons under Section 122A, while reserving a lifelong right to use and enjoy the property for himself.
If the transfer is legally complete and the property is no longer owned by the father at the time of his death, it will not form part of his estate (tarikah). Consequently, upon his death, his other son, two daughters, and wife will not receive their respective inheritance shares in that property.
Here, legal validity and Shariah assessment are two distinct questions. The question is whether this arrangement is being used as an ordinary transfer of property during the donor’s lifetime, or as a means of depriving an heir of the inheritance rights prescribed by Allah.
Risk 2: The Possibility of Misusing the Distinction Between Hibah and Mīrāth
In Islamic law, hibah and mīrāth are fundamentally distinct.
Hibah is the transfer of ownership of property during the donor’s lifetime, whereas mīrāth is the entitlement of the heirs designated by Shariah to the property left by a deceased person.
Accordingly, it is true that a person owns his property during his lifetime and has the right to make a valid hibah of it. However, this right does not justify the conclusion that every form of lifetime distribution of property intended to circumvent the laws of inheritance is equally acceptable under Shariah.
Therefore, the validity of a hibah and the purpose for which it is made are two separate matters. This distinction is particularly important when assessing the Bill from a Shariah perspective.
Risk 3: Unjust Discrimination Among Children
Justice in the distribution of property among children is a matter of considerable importance.
In the well-known incident concerning Nuʿmān ibn Bashīr (may Allah be pleased with him), his father gave him a special gift. The Messenger of Allah (peace and blessings be upon him) asked whether he had given a similar gift to his other children. When the father replied that he had not, the Prophet (peace and blessings be upon him) said:
فَاتَّقُوا اللَّهَ وَاعْدِلُوا بَيْنَ أَوْلَادِكُمْ
“Fear Allah and act justly among your children.”
Following this instruction, the father took back the gift. (Ṣaḥīḥ al-Bukhārī)
Thus, although giving property to a child during one’s lifetime may be permissible, the question cannot be avoided as to whether giving property to one child while unjustifiably depriving the others is consistent with the principles of justice in Shariah.
The matter becomes even more serious when the purpose of transferring property to one child, without a valid need or justifiable reason, is to deprive the other children of property they might otherwise inherit in the future.
Risk 4: The Possibility of Using Hibah as a Strategy to Deprive Heirs of Inheritance
This is a more serious manifestation of the preceding risks.
Suppose a person reasons as follows:
“After my death, my daughters will also receive shares of my property under Shariah. I do not want that to happen. Therefore, I will transfer all my property to my son while I am still alive.”
Although this may outwardly take the form of a lifetime hibah, its purpose and consequences require particular scrutiny.
After specifying the shares of the heirs, the Qur’an states:
تِلْكَ حُدُودُ اللَّهِ
“These are the limits set by Allah.” (Surah al-Nisāʾ, 4:13)
Accordingly, a Muslim certainly has freedom to manage his property during his lifetime. However, serious consideration must be given to whether using that freedom deliberately to circumvent the inheritance system prescribed by Allah is consistent with the principles and objectives of Shariah.
Risk 5: The Possibility of Blurring the Distinction Between Hibah and Waṣiyyah
Under Shariah, a hibah takes effect during the donor’s lifetime, whereas a waṣiyyah (bequest) generally takes effect after death. Therefore, an arrangement intended to transfer property to someone after the donor’s death does not become a genuine hibah merely because it is executed in the name of a gift.
A well-known hadith states:
لا وصية لوارث
“There is no bequest for an heir.”
Another narration states:
إن الله قد أعطى كل ذي حق حقه
“Indeed, Allah has given every person entitled to a right his or her due.”
Therefore, whenever a deed is executed under Section 122A, it is necessary to examine whether ownership has genuinely been transferred during the donor’s lifetime or whether the principal objective is to arrange for the property to pass to a particular person after the donor’s death.
If the latter purpose is effectively concealed behind the deed, serious questions of fiqh may arise concerning the true legal and Shariah character of the arrangement.
Risk 6: The Question of Qabḍ in Hibah under Muslim Law
Qabḍ (taking possession) is an important jurisprudential issue in the law of hibah under Muslim law.
The arrangement under Section 122A, on the other hand, constitutes a separate statutory mechanism under which ownership may be transferred while the donor retains the right to use and enjoy the property during his or her lifetime.
An important question therefore arises:
When the donor retains actual use and enjoyment of the property, how does this arrangement relate to the jurisprudential principles concerning qabḍ in a hibah under Muslim law?
The answer should not simply be that “possession has not taken place.” This is because a transfer under Section 122A is not the conventional hibah; it is a distinct legal arrangement.
Nevertheless, a potential Shariah-related risk arises at precisely this point. If a Muslim can use the transfer mechanism under the new law to achieve substantially the same economic outcome as a hibah without complying with the Shariah requirements applicable to hibah, the mechanism could become an alternative route for achieving such a transfer.
It is therefore essential to assess the new statutory transfer mechanism and hibah under Shariah separately, while also taking into account the possibility of such misuse.
Risk 7: New Inheritance Complications If the Transferee Dies Before the Donor
Another important aspect of the Bill is that, in certain circumstances, the transfer may remain effective even if the transferee dies during the donor’s lifetime, with the property passing to the transferee’s legal heirs.
Suppose a father transfers property to his son, but the son dies before his father. The son’s heirs may include his wife and children.
Consequently, the future ownership of the property may pass to the heirs of the son while the father is still alive, even though the father continues to retain the right to use and enjoy the property.
This situation should not be equated directly with ordinary mīrāth, because a lifetime transfer has taken place in the first instance. Nevertheless, the relationship between this form of statutory succession and the Islamic law of inheritance, together with its potential implications, requires a separate examination from the perspective of fiqh.
Risk 8: The Possibility of Protecting Parents at the Expense of Other Heirs’ Rights
One important and reasonable objective of the Bill is to ensure that parents are not deprived of the use and enjoyment of property during their lifetime after transferring it to their children.
This objective is undoubtedly important.
However, the question is whether, in ensuring the lifetime protection of parents, a legal framework might also be created that enables the complete exclusion of the potential inheritance rights of other heirs recognised by Shariah after the parents’ death.
In other words, if the mechanism adopted to achieve a legitimate objective creates an opportunity to nullify another right recognised by Shariah, the safeguards built into that mechanism require reconsideration.
Risk 9: The Misuse of the Argument, “The Father Transferred the Property During His Lifetime”
It is common to hear the following argument in society:
“The father transferred the property while he was still alive. It was his property, so he could do whatever he wanted with it.”
There is an important truth in this statement: ownership of the property belongs to the individual during his lifetime.
However, it would be incorrect to infer from this that the owner enjoys unlimited freedom without any further considerations.
A Muslim may transfer his property during his lifetime, but he must also take into account the Shariah principles of justice among his children and the prohibition of unjustly depriving others of their rights.
Thus:
Legal authority ≠ an unlimited moral entitlement under Shariah.
This distinction is particularly important.
Risk 10: The Possibility of Using Legal Devices to Circumvent Shariah Provisions
This is one of the most subtle issues.
A person may argue:
“I am not depriving anyone of anything. I have simply transferred my property while I am alive.”
However, if the actual intention is:
“I do not want a particular heir to receive any share of this property after my death,”
the matter is no longer confined to the question of whether the deed is formally valid under civil law.
It is necessary to determine whether this is a genuine transfer of property during the donor’s lifetime or a legal device designed to alter the outcome prescribed by the laws of inheritance.
In such cases, the wording of the deed, the reality of the transfer, the intention behind it, the surrounding circumstances, and its consequences must all be taken into consideration.
Risk 11: The Possibility of Jeopardising the Donor’s Own Future Security
A lifelong right to use and enjoy property can provide the donor with an important form of protection. However, transferring ownership may also create a new form of dependence that affects the donor’s future financial security.
Suppose an elderly father transfers his only house to his child while retaining a lifelong right to reside in it. At a later stage, he may need to sell the house or make another decision concerning the property to meet medical expenses or some other urgent need.
At that point, he is no longer the full owner of the property.
Consequently, separating ownership from the right to use and enjoy the property may protect the donor in one respect while limiting his freedom to make future decisions in another.
Risk 12: The Impact of One Generation’s Property Transfer on the Inheritance of the Next Generation
Suppose a grandfather transfers property to his son, but the son dies before the grandfather.
Under the relevant legal provisions, the subsequent ownership of that property may pass to the son’s heirs.
In other words, the grandfather may have thought:
“I am giving this property to my son.”
In practice, however, the property may ultimately pass to the son’s wife, children, or other heirs.
This should not be equated directly with the ordinary rules of mīrāth, because a lifetime transfer took place in the first instance. Nevertheless, the long-term family and inheritance-related implications of such an arrangement should be examined from both jurisprudential and legal perspectives.
Risk 13: The Possibility of Confusing Justice Among Children with the 2:1 Inheritance Ratio
An important point needs to be clarified here.
A lifetime hibah is not mīrāth. Therefore, the proposition that sons and daughters must necessarily receive gifts during the donor’s lifetime in the same 2:1 ratio prescribed for inheritance is not a unanimously accepted ruling in fiqh.
However, the opposite conclusion is equally incorrect:
“Since a hibah is not inheritance, any form of unequal treatment among children is permissible.”
The hadith concerning Nuʿmān ibn Bashīr (may Allah be pleased with him) at least establishes a clear principle of justice among children.
Accordingly, a Shariah-conscious and prudent principle for assessing the Bill would be:
A lifetime hibah may be permissible, but the opportunity to make such a gift should not be treated as a justification for unjust discrimination among children or as a licence to deprive an heir of his or her rights.
Risk 14: The Possibility of Indirectly Depriving a Wife or Other Heirs of Their Inheritance Rights
The issue is not limited to children.
Suppose a person transfers most of his property to his children during his lifetime. His wife is still alive when he dies, but the property in question is no longer owned by him at the time of his death. Consequently, no inheritance share in that property accrues to his wife.
Such an arrangement may be legally possible.
From a Shariah perspective, however, the question remains:
Is this an ordinary arrangement for managing property during one’s lifetime, or is it a deliberate measure intended to render the wife’s future inheritance rights ineffective?
Here, too, the Qur’anic principles expressed in the phrases farīḍatan min Allāh (“an obligation prescribed by Allah”) and tilka ḥudūd Allāh (“these are the limits set by Allah”) are relevant.
Risk 15: The Possibility of Creating an Alternative Legal Route Alongside Hibah
According to the government’s explanation, the new arrangement under Sections 122A–122B is distinct from the conventional hibah and does not invalidate the latter.
In practice, however, a Muslim may now have two possible routes:
Route 1: Hibah under Muslim law.
Route 2: Transfer of property through the new statutory mechanism.
An important question arises:
Can a Muslim use this new legal mechanism to obtain substantially the same economic outcome without complying with the Shariah requirements applicable to hibah?
If this is possible in practice, the law could create an opportunity for the new mechanism to be used as an alternative route to hibah, even though it does not directly abolish the institution of hibah itself.
This brings one of the most important Shariah-related and legal-policy questions concerning the Bill to the forefront.
Concluding Observations
In short, before reaching a definitive conclusion as to whether the Bill is contrary to Shariah, each of its provisions needs to be examined thoroughly in the light of Shariah and Muslim personal law.
On the one hand, a living individual is the lawful owner of his property and has the right to transfer it during his lifetime through hibah or another legally permissible means.
On the other hand, mīrāth is a system prescribed by Allah Taʿala, and the Sunnah also clearly establishes the instruction to act justly among one’s children.
Therefore, the issue concerns not only the act of making a hibah itself, but also its purpose, structure, practical implementation, the possibility of unequal treatment among children, and its potential consequences.
In our assessment, transferring property during one’s lifetime may be consistent with Shariah. However, any legal mechanism that gives a Muslim an effective opportunity to deliberately deprive the heirs designated by Allah of their prescribed inheritance rights through the transfer of property requires careful scrutiny of its Shariah safeguards, underlying objectives, and method of implementation.
The fact that inheritance rights take effect after death does not negate a living person’s ownership of property or the right to transfer it. Nevertheless, it would not be appropriate to exercise that freedom through a device whose principal purpose is to circumvent the system of inheritance prescribed by Allah.