What is the ruling regarding a gift (*Hiba*) made by a person concerning property they do not fully own, where the donee subsequently dies leaving an heir?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The gift is valid only to the extent the giver possesses the capacity to execute it, which is one-third of the gifted item. If a man gifted his brother one hundred units, and the brother took possession and then died leaving a daughter, the gift is valid concerning a portion of the one hundred. The portion related to the gift that passed becomes part of the deceased brother's estate. The giver inherits back half of the portion over which the gift was valid, as he is one of the heirs. This ruling is derived from equitable application, similar to principles governing return (*Radd*) in inheritance where surplus shares are dropped, as seen in cases like the mother and two sisters, or when calculating shares in estates involving two heirs.
Supporting text
The method of division involves assigning a proportional number of shares. For the initial example (gift of 100, one heir is a daughter), if one takes the third of the share as six, and then takes a third of that as two, and drops half a share, one remaining share belongs to the donee's heirs, and four shares remain for the giver. The hundred units are divided by five shares, and the dropped share is disregarded as it reverts proportionally across the remaining shares, similar to surplus shares being dropped in cases of Radd.