Doctrine of Musha under Muslim Law
Scroll down to read how Muslim law permits undivided gifts in special cases—like co-heirs, joint ownership, etc. —without requiring partition.
Muslim personal law, derived from the Quran, Hadith, and juristic interpretations, governs various aspects of civil life, including property rights. Among its nuanced doctrines is the concept of Musha, a term central to the law of gift (hiba). The doctrine of Musha has both practical and theoretical importance, especially in matters involving joint and undivided property. In Islamic jurisprudence, Musha refers to an undivided share in joint property, and it significantly influences the legal validity of gifts.
This article delves into the meaning, scope, applicability, and exceptions to the rule of Musha under Muslim law, as recognised in India.
Meaning of Musha
The Doctrine of Musha (Hiba-bil-Musha) refers to the gift (hiba) of an undivided share in a property. The term Mushaa is derived from the Arabic word saayu, which signifies an "undivided share" or interest in jointly held property.
Mushaa denotes a situation where a gift is made of a share in a property that is jointly owned or otherwise capable of division. The rule addresses whether such a gift is valid under Islamic law without actual division or delivery of the specific share.
There is no uniformity among the various schools of Muslim law regarding the validity of a Mushaa gift. Shafei and Ithna Ashari (Shia) Schools permit the gift of undivided property. However, for such a gift to be valid, delivery of possession of the undivided share to the donee is essential. Hanafi School does not recognise the doctrine of Musha.
General Rule Regarding Musha
The classical rule in Islamic jurisprudence prohibits the gift of an undivided share in a divisible property if the donee is not in exclusive possession of the specific part gifted. This prohibition is based on the rationale that uncertainty and potential for dispute defeat the core principle of Hiba—immediate and unconditional transfer of possession.
Three Essential Elements of a Valid Gift (Hiba):
- Declaration of gift by the donor
- Acceptance by the donee
- Delivery of possession
In a Musha gift involving undivided property, the third condition—delivery of possession—becomes difficult, if not impossible, to fulfill.
Under Muslim law, its validity depends on whether the property is divisible or not.
1. Mushaa in Indivisible Property
A gift of an undivided share in indivisible property is valid. For example, in Kasim Husain v. Sharif-un-Nissa (1883), the court upheld a gift of a house along with the right to use a common staircase shared with another building. Since the staircase could not be divided, the gift was held valid.
2. Mushaa in Divisible Property
A gift of divisible property without prior partition is considered irregular, not void. It becomes valid if:
- The property is later partitioned, and
- Possession is delivered to the donee.
In Hyartuddin v. Abdul Gani, a Muslim man’s sister and widow gifted their shares to a foster son. Though no formal delivery occurred, tenants began paying rent to the donee. The court treated this as constructive possession and held the gift valid after a partition suit was filed.
Key Point:
Divisible property: gift valid after partition + possession.
Indivisible property: gift valid even without division.
Exceptions to the Doctrine of Musha
While the general rule in Muslim law is that a gift (hiba) of an undivided share (Mushaa) in divisible property is invalid unless it is followed by possession, certain exceptions have been recognised by courts and legal scholars. These exceptions validate the gift of Mushaa under specific circumstances, as explained below:
1) Gift by One Heir to Another Heir
A gift made by one heir to another of her inherited share is valid, even if it is undivided. For instance, if a Muslim woman dies leaving behind her mother, a son, and a daughter as heirs, the mother can make a valid gift of her share to either or both of the children, without requiring prior partition. [Mohammad Buksh v. Hussaini Bibi (1885) 15 Cal. 648]
2) Gift of Share by a Co-sharer in a Zamindari or Taluka
A co-sharer in a Zamindari or Taluka can validly gift his undivided share to another co-sharer. This is because what is being gifted is the right to receive a definite portion of rent or produce, even though the land itself remains undivided.
Example: If A and B are co-sharers in a Zamindari, and A gifts his share to B, the gift is valid despite no formal partition, since each co-sharer has a fixed share in the revenue.
Note: Following the abolition of the Zamindari system in India, this exception now has limited practical application.
3. Gift of a Share in a Company
A gift of a share in a company is valid under Muslim law. Since company shares represent proprietary rights in a corporate entity and are considered movable and divisible, the rules of Mushaa do not apply.
4. Gift of a Share in Freehold Property in Large Commercial Towns
A gift of an undivided share in freehold property situated in a large commercial towns is valid. Such properties are often owned in common and easily divisible, making possession by each co-owner impractical but legally recognised.
5. Gift of Undivided but Divisible Property to Multiple Persons
A gift of undivided yet divisible property to two or more persons jointly is valid.
Example: X gifts a house to A and B in equal shares as tenants-in-common. Although the property is not physically divided and individual possession is not delivered, the shares are clearly defined. A and B are given notice, and rent is directed to be paid to them. Such a gift is considered valid.
6. Gift of Mushaa with Stipulation for Periodic Payments
A gift of an undivided share (Musha) that includes a stipulation requiring the donee to make certain periodic payments (e.g., allowances or annuities) to another person is not rendered invalid by the rule against Musha. The stipulation does not interfere with the legality of the gift.
Shia Law
According to Shia Law gift of Musha is valid in each case (i.e. whether the property is divisible or indivisible) provided the donor gives to the donee possession of the property by vacating and permitting the donee to control it.
Conclusion
While the doctrine of Mushaa plays an important role in ensuring that the transfer of property through gift is clear and undisputed, Muslim law recognises several practical exceptions where strict application would result in hardship, impracticality, or injustice. Indian courts, particularly, have taken a liberal and purposive approach in upholding such gifts.
These exceptions reinforce the broader Islamic principle that gifts made with intention, acceptance, and reasonable delivery—even if symbolic or constructive—should be honoured, especially in cases involving co-heirs, joint ownership, or indivisible assets.
References
[1] Aqil Ahmad, Mohammadan Law, 26th Edition (2016)
[2] Universal's Guide to Judicial Service Examination, 19th Edition (2024)
[3] Kasim Husain v. Sharif-un-Nissa, (1883) 5 All. 285
