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Doctrine of Mushaa

September 28, 2024

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This article is written by Moiz Akhtar. This article explains the doctrine of Mushaa under Muslim personal law in detail as well as the applicability of the doctrine. The meaning, scope and extent of the gift of Mushaa is discussed in detail as well. The categorisation of gifts of Mushaa under Muslim personal law and their validity is also explained in detail.

Table of Contents

Introduction

In order to govern the transfer of property through a proper lawful mechanism, India has the Transfer of Property Act, 1882 (hereinafter referred to as the Act of 1882). However, India is a country with a diverse sect of people following different cultures, traditions, etc., and so, we also have a set of separate personal laws for the different religions for matters relating to marriage, divorce, succession, maintenance, guardianship, etc. In this article, we will understand one such concept of the transfer of property (to be precise, transfer of undivided share) via a gift, wherein a right is conferred in a property “without an exchange”, in Muslim law.

In layman’s language, a ‘gift’ is a voluntary transfer of possession from one person in favour of another without any consideration in return. As mentioned above, the law governing the transfer of property in India is the Transfer of Property Act, 1882, however, gifts executed by Muslims are excluded from the applicability of the Act of 1882. Section 129 of the Act of 1882 provides that the provisions of the Act of 1882 shall not apply to those gifts which are made under Muslim personal law. The Act provides exceptions for the gifts made under Muslim personal law and that gift shall only be regulated under Muslim personal law itself.

A person or a specific group of people, governed by Muslim law; has the flexibility to manage or transfer their property in two ways, namely; inter-vivos transfer (in simple terms the transfer of property during the lifetime of the owner) and the testamentary disposition (transfer through will, gift or deed). The transfer by way of a gift deed in Muslim law is called ‘Hiba’. It is important to note that although in India, the term gift is considered to be an equivalent of Hiba, connoting transfer of property without consideration, a gift has a much wider scope than Hiba. Legally, the term ‘Hiba’ as defined by Abdul Rahim in his book Muslim Jurisprudence, means a “contract consisting of a proposal or offer on the part of the donor to give a thing and the acceptance of it by the donee”. In layman’s language, the term Hiba means giving or donating a thing, from which the receiver or the donee may derive a benefit.

Hiba is divided into four subheads, namely;

Hiba (plain gift)
Hiba-bil-iwaz (gift for exchange of something)
Hiba-bil-shartul-iwaz (gift made with stipulation)
Hiba-bil-Mushaa (gift of undivided shares)

This article is restricted to the discussion of various aspects of Hiba-bil-Mushaa. Hiba-bil-Mushaa or the gift of Mushaa is a category of gift under Muslim law in which the subject matter of the gift is conjoined with other shareholders and is not divided. Here, the donor’s share is conjoined with the shares of other shareholders of the property.

Before moving on to the doctrine of Musha or Hiba-bil-Mushaa, let’s first have a brief look at the concept of Hiba.

Hiba

A gift is known as Hiba in Muslim law, which is an Arabic word. In Muslim Law, an executed gift deed is called Hibanama. A gift made by a Muslim should be in accordance with the provisions developed by either the Sunni School of Law or the Shia School of Law, depending upon the sect the donor belongs to. India is largely inhabited by Sunni Muslims and hence the provisions of Sunni law are largely followed in India. One of the popular schools under the Sunni sect of Islam is Hanafi Law School which was founded by a famous Islamic Scholar of Iraq named Abu Hanifa. In the Hanafi school of law which is a sect of Sunni Islam, gifts are regulated under many provisions and doctrines developed by Hanafi jurists.

To understand the concept of hiba, in detail, click on this article – Hiba – gift under Muslim law.

The present article discusses in detail Hiba-bil-Mushaa (gift of undivided shares) or the doctrine of Mushaa, which is one of the divisions of gift under Muslim law or hiba. The article will cover the doctrine of Mushaa’s meaning, its kinds, its exceptions, and case laws related to Mushaa.

Meaning of Mushaa

The word Mushaa comes from the Arabic word “shaayu” which means ‘undivided share in the property’. In principle 104 of Mahomedan law by Mulla, “Mushaa is defined as an undivided share in a property whether movable or immovable”. When a person makes a gift of his share in a jointly held property then, that gift of the undivided share is called Mushaa. Since the property is jointly held among its sharers without any division or partition, making a gift of one of the shares creates confusion. Such ambiguous gifts, in which the subject of the gift is not divided, are categorised under the gifts of Mushaa. The concept of ‘Mushaa’ has been explained as “A gift of a part of a thing which is capable of division is not valid unless the stated part is divided off and separated from the property of the donor whereas the gift of an individual thing is valid”, in the Hedaya (a book on Muslim Jurisprudence).

Subject-matter of Mushaa

If the subject matter of the hiba or the gift is not transferable from the donor to the donee, because the subject matter is an undivided share in a jointly held property then, the doctrine of Mushaa will be invoked.

Illustration- A gifted B his shares in a private limited company. However, the shares of the company that A holds cannot be liquidated immediately and transferred to B. So, even if A has gifted his share of the company to B, the actual transfer of possession has not taken place. The company is owned by many of its co-sharers and the shares of the company are not divided among its co-shares yet. In this case, the doctrine of Mushaa can be invoked because even if it is clear that A has made a gift of his part in the company to B, the actual details and extent of possession of A’s share in the company are not determined yet.

The sole purpose for which the doctrine of Mushaa is introduced in the Mahommedan law is to solve and bring clarity regarding the gift made by the donor to the donee in cases of undivided shares. It is generally believed that if a person is gifting his/her share to anyone in a jointly held property, then the property should first be divided properly and then the gifted portion of the property should be transferred to the donee.

Kinds of Mushaa

Hanafi School of Law divides Mushaa into two categories. Both of the categories are discussed below in detail-:

Mushaa in a property incapable of indivisible

The question and fact of the indivisibility of the hiba arises when the subject matter of the hiba is such that its division will destroy the vested interest of the hiba itself. There are some properties whose division is not practical and cannot be divided. Mushaa indivisible need not be divided and will be held valid even if it remains undivided.

For example, a bathing ghat, staircase, or cinema hall cannot be divided because division or partition of these properties will lead to the destruction of the purpose for which these properties are made. Also, the division of these kinds of properties will hamper the economic value and identity of the property. Let’s say, if a common staircase of two houses is divided into two parts, then it will be of no value to its users. If the staircase is divided lengthwise, then it will become too narrow to be used. If the staircase is divided in such a way that the upper half of the staircase belongs to one person and the lower half belongs to another person, then also the division would destroy the identity and use of the staircase.

In these kinds of property, the division is neither favourable nor economical for the parties involved. Muslim Personal law allows hiba or gift of an undivided property in which the property is indivisible in nature. These kinds of gifts are known as Mushaa indivisible and are valid. Hence, the applicability of Mushaa indivisible is extended to those properties which are indivisible in nature.

Illustration- A and B both jointly owned a machine or equipment. A made a hiba of his share in the equipment to C. In this case, the division of the equipment would destroy the utility of that equipment. Hence, this is a gift of Mushaa which is indivisible and will be held valid.

Mushaa in a property capable of divisible

The gift or the hiba in which the subject matter of the gift is capable of division but remains undivided, then the gift will be called Mushaa divisible. For example, a person has made a gift of his share in an undivided land to someone. Then the gift or hiba made by the donor would be said to be Mushaa divisible. This is because the joint property is not partitioned yet, it could be divided among its sharers and the respective share of the land could be transferred to the donee. In this case, the delivery of possession from the donor to the donee is possible only after a fair partition of the land. Hence, these kinds of Hiba are called Mushaa divisible.

A gift of a Mushaa divisible, is not considered as void, however, is termed as ‘fasid’, meaning irregular. It is pertinent to note that, this is not something that cannot be cured or made valid. It can be rectified, thereby making the gift valid through subsequent partition and delivery of the specified share to the donee. Once possession is taken, the gift is validated.

The concept of Mushaa divisible is brought forward because it simplifies the process of execution of the Hiba, transfer as well as delivery of possession. A property well divided, demarcated, and under the possession of the donor is optimally qualified for hiba. Further, the partition of the donor’s share before making the gift of a joint property helps the donee to claim the gift without any difficulty. It is easy and practical for the executor of the gift to execute the gift if the donor’s share is divided in the joint property. Since the donor’s share is divided, the gifted share could be easily transferred to the donee without any complications. Hence, Mushaa divisible simplifies the process of transfer of possession in a hiba and execution of Hibanama.

Illustration- A gifted B his share in a jointly held land. Then, the gift will be a gift of Mushaa divisible. The gift is Mushaa divisible because the land is capable of division and could be divided. After the division of the land, gifts could be executed further easily. In this case, the Hiba or the gift would be declared as irregular and A has to make a partition of his share from the jointly held land so that a clear and demarcated land comes under the possession of A. Only after taking possession of his share, A who is the donor here, could execute the gift that he has made to B. In the case of Mushaa divisible, the execution of Hiba will only take place after the division of the property or subject matter of the gift.

Exceptions to the doctrine of Mushaa divisible

The provisions and applicability of the doctrine of Mushaa are discussed above, but still, there are some categories of gift or Hiba in which the doctrine of Mushaa divisible is not applicable. According to the principles of Mahomedan law by Mulla, the exceptions to the gift of Mushaa divisible are discussed below-:

Gift made by one heir to the other

If a Muslim person makes a gift of Mushaa of his share in a jointly held property to someone who is one of the legal heirs or co-heirs of that Muslim person in that same property, then the same shall be held as valid. For instance, a muslim woman dies executing a gift in favour of her son and daughter, a valid gift can be made by the woman to any one of her heir or both of them.

Muslim law permits the donor to make a gift of a share in an undivided property to any of his/her co-heirs and the gift will be valid. In this case, the doctrine of Mushaa will not be invoked and these types of gifts or hiba in which the donee is a co-heir or legal heir of the donor are exempted from the category of Mushaa. Hence, the doctrine of Mushaa will not be applicable even if the property remains undivided and the donor has made a gift of his share to one of the co-heirs.

Gift of one’s share in a company

If a Muslim made a gift of his share in a limited company to anyone, then the gift would be held valid and the doctrine of Mushaa would not be applicable in this case even if the shares of the donor remain undivided in the limited company. A person is free to make a gift of his undivided share in a limited company, that too without partition of his/her share in the company. In this case, the doctrine of Mushaa is not applicable because the division of shares may take place or may not take place in the future but the gift will be held valid. This case is an exception to the doctrine of Mushaa.

In the case of Ibrahim Goolam Ariff vs. Saiboo (1907), the dispute arose regarding the succession of Ibrahim Goolam Aariff’s property who was a wealthy resident of Rangoon. The bone of contention, in this case, was certain gift deeds that Ibrahim Goolam made in favour of his minor children and wives. He gifted a certain number of undivided shares in a valuable commercial property and companies which was mentioned in the gift deed. The gift deed was challenged by the executor of Ibrahim Goolam’s will on the grounds that the donor was ill when he made the gift and the gift consisted of undivided shares in six companies and land. As the shares were undivided, the gift cannot be executed and is invalid on the grounds of the doctrine of Mushaa. Later, it was laid down before the Majesty that the properties which were involved in this case were shares in companies and freehold property in a great commercial town. Hence, the argument that the gift is barred by the doctrine of Mushaa is not well founded and the court held the gift valid. From this case, it could be concluded that the gift of undivided shares in a limited company and freehold commercial property is an exception to Mushaa.

Gift of a freehold property in commercial towns

A freehold property is a property in which the owner has not only the rights to the house or property built on the land but also rights to the land on which the property is built. In freehold ownership, the owner owns both land as well as the property standing on the land. In the case of freehold property, the owner or co-owner of the property could make a gift of his share to any person of his choice. To cater to the developing needs of modern society and to make the transfer of shares in a property more simple and free from legal clutter, commercial towns allow the gifting of undivided shares in any property be it a house or land. In this case, the doctrine of Mushaa will not be applicable. Here the exception was made to enjoy the fruitful economic benefits of the property without any hindrance.

In a case where gift is made of a part of a house which is situated in a large commercial town, will be very well treated as a valid gift, even without a prior partition and hence such a gift shall be treated as an exception to the gift of Mushaa.

In the case of Khurshida Begum vs. Mohd. Farooq (2016), the Supreme Court held that the gift that has been made by the father to his minor son in the city of Jaipur is valid. The court held that the property is situated in Jaipur which is the Capital of the State of Rajasthan, is a large commercial town. In this case, the father executed a gift deed of an undivided property situated in Jaipur in favour of his minor son. The father of the minor son who is the donor in this case made it clear to the tenants residing in the property that his son, who is the donee in this case, has the authority to collect rent from the said property. Hence the right to collect rent was transferred to the son. The court held that although the property in the suit is undivided, because of the fact that the property is situated in a large commercial town, the gift will not be barred by the doctrine of Mushaa.

In the case of Hajira Bheemal vs. Saru Bai and others (1990), a dispute arose between the plaintiff and defendant regarding a piece of land. The plaintiff is the second wife of Abdul Karim Ismail Sait. Defendants were his first wife and his children from his first wife. Abdul Karim Ismail had made a gift of half of a piece of land in favour of the plaintiff. It was also mentioned in the gift deed that half of the land belongs to the plaintiff and she has the right to partition it and subsequently take it under her possession. Defendants objected to the partition of the land on the ground that the gift is an undivided share of a land which is invalid due to the application of the doctrine of Mushaa. The Trial Court favoured the arguments of the defendants and refused to grant a decree in favour of the plaintiff. The plaintiff then appealed in Kerala High Court regarding the disputed property. Kerala High Court held that the gift of an undivided share in a property is irregular (fasid) but not void (batil). The court held that it was clearly mentioned in the gift deed that half of the land belongs to the plaintiff and she has the right to partition and take it under her possession. Further, the court also held that Thoppumpady town which is part of Cochin Corporation, thus, the land is situated in a large commercial town. As the land is in a commercial town, even though the gift has been undivided since its inception, it is valid.

Gift of a share by a co-sharer in a Zamindari or Talauqa

The gift of Mushaa of a share by a co-sharer in a zammindari system, is considered to be valid because in such a case the gift is the right to receive and collect individually a particular share or a rent of share. For example, if two persons, A and B, are co-sharers of the proceeds collected in the Zammindari system, wherein both of them are having a specific share, and B makes a gift to A, his share of zammindari, then such a gift is valid.

The Zamindari system is a concept widely used by the British to collect tax in British India. Generally, a large chunk of land was given under a particular zamindar and that zamindar was responsible for the collection of taxes from the peasants who used to work and grow crops on the respective land. Every zamindar is responsible for the collection of taxes from the land allotted to him. Even if the system has so far been abolished after Independence, the concept of holding land under a large chunk was still encouraged due to favourable agricultural output. Oftentimes a large chunk of land was held by more than one person and any of them could make a gift of his share to anyone without dividing his share from the zamindari system of land. Hence, in this case, the doctrine of Mushaa is not applicable even when the gift remains undivided.

It is pertinent to note that, after the abolition of the Zammindari System in India, this exception has no relevance and practical significance.

Musha gift with a certain stipulation

In a gift where there is certain stipulation that the donee shall pay certain amount of sum or periodical sums to the donor, in such a case, it is treated as an exception to the gift of Mushaa.

Acceptability of both kinds of Mushaa in Shia law

In Shia law, a gift of Mushaa, be it Mushaa divisible or Mushaa indivisible, both of them are valid. However, the essential point here is that the possession must be transferred from the donor to the donee, and thus the property has been vacated and the donee has full control over it.

Recognition of the doctrine under Shia and Sunni Law

The Muslim community in the whole world is categorised under two heads, i.e., Sunni Muslim and Shia Muslim. The laws governing various personal and administrative matters are different for both the Shia and Sunni Muslims. The same event would be interpreted in different ways by Shia Muslims and Sunni Muslims.

India is predominantly inhabited by Sunni Muslims, hence the majority of rules and laws governing the matters of Muslims in India were derived from Sunni schools of law. Whereas, countries like Iraq, Iran, Lebanon and others are inhabited by Shia Muslims and Muslim laws adopted by those countries are different from that of Sunni Muslims. One of the prominent law schools of Sunni Muslims in India is the Hanafi Law School and the laws as well as regulations developed by the Hanafi Law School are structured into Muslim Personal Law. The governance of matters under Muslim personal law is not only derived from the Sunni school of law but also from Quranic texts and Hadith.

As far as the gift of Mushaa is concerned, Sunni law promotes the concept of dividing the property before gifting it to someone. That means, if anyone is gifting his/her share in a jointly held property then he/she should first make a partition of the property and then he/she could make a gift of his share of the property to anyone.

It is pertinent to know that as far as the question of the validity and applicability of the doctrine of Mushaa is concerned, there is not much consensus and unanimity amongst the different schools of Muslim law. While the Hanafi School of Law, the teachings of which are followed by Sunni Muslims is concerned, Mushaa does not have much recognition. However, in Shia law, Musha divisible and Musha indivisible are treated to be valid, provided the possession must be transferred to the donee.

Conclusion

Although the concept and doctrine of Mushaa is a part of Muslim personal law, the applicability of the doctrine has a very narrow bandwidth. It could only be applied to the gifts or hiba made under Muslim personal law, i.e., the donor must be a Muslim. Further, the gift should be made from the share of a jointly held property without division or incapable of division. Even if any gift is categorised under Mushaa there are ways to exempt from the doctrine too, like making a gift under the Transfer of Property Act of 1882, or making a gift after dividing the property etc. Developing a cosmopolitan culture in Indian society encourages a uniform law for the general transfer of property throughout India. As far as the doctrine of Mushaa is concerned it is not very popular nowadays and even if it is applicable in some negligible fraction of cases, the extent of its applicability tends to a very small number of cases. Hence, due to the upgradation in the field of law and society at large, the doctrine of Mushaa may not be of great relevance in today’s world.

Frequently Asked Questions (FAQs)

In which property doctrine of Mushaa is commonly applied?

The doctrine of Mushaa is only applicable to the gift of undivided shares in either a movable or an immovable property made by a Muslim. The dooctrine of Mushaa states that the gift of an undivided share in a property is invalid but not void. The gift could be made regular by further dividing or partitioning the property concerned. If the gifted property is incapable of division then the gift is called as Mushaa indivisible and is valid. Mushaa is only applicable to gifts made by Muslims.

Can Mushaa property be sold and transferred further?

If the property is Mushaa divisible then the gift should be made regular first by partitioning the joint property and thereby delivery of the possession to the donee. After partition of the property, the donee’s share is clearly marked out and hence the donee can further either sell the property or transfer the property to anyone. In the case of Mushaa indivisible gifts, the donee can transfer or sell his share in the property and the new owner of the property will possess the share of the property jointly with other pre-co-owners.

What is the difference between Mushaa and partitioned property?

Mushaa is a doctrine that prohibits the gift of an undivided share in a property to someone. In the case of Mushaa divisible the property needed to be partitioned and the gifted share then to be transferred to the donee. Partition of the undivided property helps to execute the gift of Mushaa. A well-demarcated and partitioned property can be easily transferred to the donee.

What legal complications can arise due to the doctrine of Mushaa?

The doctrine of Mushaa is not of much relevance in today’s developing society. There are many exceptions that are provided to the gift of Mushaa like, a gift made to a co-heir, a gift of zamindari share, a gift of a freehold property etc. As society develops the applicability of the doctrine tends to be negligible. Courts in many instances held that the applicability of the doctrine is unadapted for a progressive society and that the doctrine ought to be confined within strict rules.

References

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