Under the Hanafi doctrine of Mushaa, gift of a share in the co-owned property is invalid (irregular) without partition and actual delivery of that part of the property to the donee. However, if the co-owned property is not capable of partition or division, the doctrine of Mushaa is inapplicable. Hedaya lays down this doctrine in the following words:
“A gift of part of thing which is capable of division is not valid unless they said part be divided off and separated from the property of the donor; but a gift of part of an indivisible thing is valid…………………”
A Mushaa or undivided property may be of two kinds: (a) Mushaa indivisible i.e. a property in which the partition or division is not possible and (b) Mushaa divisible i.e. property which is capable of division. Law relating to both the kinds of Mushaa properties is given below.
Gift of Mushaa indivisible is valid. There are certain properties which are by nature indivisible. The physical partition or division of such properties is not practical. Moreover, if against the nature of such properties, their partition or division is affected at all, their identity is lost; they do not remain the same properties which they were before the partition. For example, a bathing ghat, a stair case or a cinema house etc. are indivisible Mushaa properties.
If, on the bank of a river or tank, there is bathing ghat which is in the co-ownership of two or more persons, then each owner has right to deal with his share as he likes including the right to make a gift of his share.
But, if a sharer attempts to separate his share, the utility of the ghat would be finished. Where a stair case is co-owned by, say two persons, then each being the owner of half of the stair-case, is entitled to make a Hiba of his share.
But, if the stair-case is divided into two parts, it would either be too narrow to be used by any one, or the upper half may come in the share of one and the remaining lower half in the other’s share. In both the cases the stair case would become useless for both of them and also for the donee.
The doctrine of Mushaa is not applicable where the subject-matter of gift is indivisible. According to all the schools of Muslim law, a gift of Mushaa indivisible is valid without any partition and actual delivery of possession.
Thus, a gift of a share in the business of a Turkish-bath, or a gift of an undivided share in the banks of a tank (or river) are valid gifts even if made without separating the specific shares.
Under Hanafi law, gift of Mushaa-divisible property is irregular (fasid) if made without partition. A co-owned piece of land, house or a garden, is Mushaa-divisible. The land may be divided and the specific share may be separated by a visible mark of identification.
Similarly, a co-owned house may be divided by a partition wall without changing its identity. In other words, a Mushaa-divisible may be divided easily without changing the nature and without affecting the utility of the property.
Where the subject-matter of a Hiba is Mushaa-divisible, the Hanafi doctrine of Mushaa is applicable and the gift is not valid unless the specific share, which has been gifted, is separated by the donor and is actually given to the donee. However, under the Hanafi doctrine of Mushaa, the gift without partition and actual delivery of possession is not void ab initio, it is merely irregular (fasid).
The result is that where such a gift has been made, it may be regularised by a subsequent partition and by giving to the donee the actual possession of the specified share of the property. It is evident, therefore, that the doctrine of Mushaa is limited, both in its application as well as in its effects. The operation of the rule is subject to following limitations:
(i) The rule of Mushaa is not applicable where the property is indivisible.
(ii) Where the property is divisible, the doctrine is applicable but only under the Hanafi School. In other words, the doctrine of Mushaa is applicable only where the donor is a Hanafi-Sunni.
(iii) Even under the Hanafi school, if a gift is made against the rule of Mushaa the gift is not void, it is merely irregular (Fasid).
(iv) Hanafi law recognises certain exceptions to this doctrine and in those exceptional cases the gift is valid, though made in violation of this doctrine.
Exceptions to the Doctrine of Mushaa:
The doctrine of Mushaa is limited in its application and is subject to certain exceptions where the doctrine is not applicable. Exceptions to the doctrine of Mushaa are given below:
(1) Gift of Mushaa to Co-heir:
Donor and the donee are co-heirs, if they are entitled to inherit simultaneously the properties of a person. Gift of undivided property is valid even if made without partition where donor and donee are co-heirs. If a person dies leaving behind a son, a daughter and the mother, then the son, daughter and mother are all co-heirs as they all are entitled to inherit the properties of the deceased.
Thus, after the death of a Muslim male, his widow and his daughter are the co-heirs; therefore, the widow (i.e. mother of the daughter) can make a lawful gift of her undivided share in the lands to her daughter without separating her share physically. In Mahomed Buksh v. Hosseini Bibi, a Hanafi woman died leaving her mother, son and a daughter, as her only heirs.
The mother of the deceased made a gift of her share to the son, without separating her 1/6 share in the properties of the deceased. It was held by the Privy Council that the gift of the undivided 1/6 share by grandmother to her grandson or to the granddaughter or to both jointly, was valid even without partition.
(2) Gift of Share in Zamindari:
Where a part of the erstwhile Zamindari or Taluka was gifted away by one of its co-sharers, the doctrine of Mushaa was not applicable. In the Zamindari systems, it was possible that two or more persons were the co-sharers having their definite shares of which they used to be respective owners.
If any of them made a gift of his share, the gift was valid without actual delivery of possession and without physical partition of the gifted share from the rest of the property. Similarly, a gift of Kaimi raiyati land (undivided share) was held valid although there was no actual division of the share before the gift was made.
This exception is only of academic interest because the Zamindari system has now been abolished in India.
(3) Gift of a Share in Landed Company:
The Hanafi doctrine of Mushaa originated with an object of avoiding confusion at the stage of taking the possession by donee. In the landed companies or big commercial establishments where the ownership consists of several definite shares, gift of a share by separating the share physically from the rest, would create confusion and inconvenience and this would be against the very purpose of this doctrine. Therefore, in such cases, the doctrine is inapplicable.
In Ibrahim Goolam Ariffv. Saiboo, the donor owned a large number of shares in six limited liability companies together with several pieces of freehold land and some buildings thereon in Rangoon. He notionally divided the whole property into one thousand shares and made a gift of 100 such shares each to four donees and also 25 such shares each to the two other donees.
The whole property could be, inconveniently though, physically partitioned from the rest. But no such partition was made by the donor. It was held by the Court that the gift was valid without actual division because the property was not conveniently divisible.
The Court further observed that it would be inconsistent to apply the doctrine of Mushaa to shares in the companies because the doctrine originated for very different kinds of properties.
(4) Gift of Share in Freehold Property in Commercial Town:
Where a freehold landed property situates in commercial towns or in big cities, its frequent partition is disfavoured. In big cities the houses are well planned and the partition may require approval of a fresh map which may take considerable time. Therefore, where a part of such property is gifted, the gift is complete without any prior partition.
Gift of a part of a house situated in Rangoon was held valid without prior partition because the house was situated in a large commercial town. Similarly, it has been held that the doctrine of Mushaa has no application in commercial towns like Lahore, Bombay or Calcutta.
Device to Overcome the Doctrine of Mushaa:
The Hanafi doctrine of Mushaa is applicable only to gifts. It is not applicable to any other kind of transfer e.g. sale, exchange etc. We have already seen that the strict application of the doctrine invalidates the gifts of co-owned properties and operates disadvantageously in most of such cases. Because of this reason, the Hanafi jurists themselves have evolved a method by which the mischief of the doctrine is avoided.
The device to overcome the doctrine of Mushaa is simple. The donor may sell the undivided share without any prior partition and may return the consideration (price) immediately to the donee. Legally, this transaction would be as sale in which the doctrine is not applicable; but, in effect it would mean a gift. According to Ameer Ali:
“A gift of a moiety of a house (which otherwise would be bad for Mushaa), may validly be effected in this way… the donor should sell it first at a fixed price and then absolve the debtor of the debt, that is, the price”.
Doctrine of Mushaa in the Present Society:
In the present Indian society, the doctrine of Mushaa is neither legally required nor has any practical significance. As mentioned earlier, the doctrine of Mushaa originated for avoiding confusion in the simple cases of gifts of small undivided properties. In the old days, no such technical formalities were needed in making divisions of the joint properties as are required to-day.
But, at present, instead of avoiding the confusion the application of this doctrine may create inconvenience and complications. In the present commercially advanced society, the Mushaa doctrine may operate as a restriction upon the right of a person to deal with his properties.
Gifts are not trade oriented transactions; they are voluntary and gratuitous transfers. Therefore, the gifts should be free from as much restrictions as possible. Moreover, where a constructive delivery of possession is sufficient to complete the gift, there is no need of making actual division; a symbolic possession by the donee of the gifted share in property validates the gift.
In Masoom Sab v. Madan Sab, the Andhra Pradesh High Court held that a gift of Mushaa is not invalid if the donor makes a constructive delivery of possession therefore; there is no legal difficulty if the Mushaa doctrine is not applied to a gift of an undivided property.
The devices to avoid the Mushaa rule have been favoured by the courts. In Sheikh Muhammad Mumtaz v. Zubaida Jan the Privy Council too had observed that the doctrine of Mushaa is unadaptable to progressive state of society and would be confined within strictest limits. It is submitted, therefore, that the Hanafi doctrine of Mushaa is neither legally necessary nor practically meaningful for the present society.
Shia law does not recognise the doctrine of Mushaa. Under the Shia law, a gift of a share of divisible joint property is valid even if made without partition.