Introduction

• In Islamic law, gifts are known as ‘Hiba’. It is an unconditional transfer of ownership in an existing property, made immediately without any consideration.
• A Muslim is allowed to give away his entire property during his lifetime by gift, but only one-third of the total property can be bequeathed by will.
• A gift, being a transfer of property is governed by the ‘Transfer of Property Act, 1882’ but chapter VII of the Transfer of Property Act, 1882 regulating the gifts does not apply to the ‘Muslim Gifts’.

Doctrine of Musha

• Musha means a property which is divisible and if such divisible property is gifted without dividing the property, it may result in confusion as to which part of the property has been gifted.
• Therefore, only in Hanafi the rule is that the divisible property should be gifted only after having divided the property. Otherwise, it will be irregular ‘Hiba’. If the property is indivisible the concept of musha will not be applicable.

Property Incapable of Division

• A gift of an undivided share in a property (Musha) which is not capable of division is valid.
• The property can be used for better advantage in an undivided condition, is valid. The ‘Doctrine of Musha' is not applicable where the property constituting the subject-matter of the gift is indivisible.
• For example, A who owns a house, makes a gift to B of the house and of the right to use the staircase by him jointly with the owner of an adjoining house. The gift of A’s, undivided share in the staircase though it is a gift of a ‘Musha’ is valid, for a staircase is not capable of division.

Property Capable of Division

• Under Hanfi School of Muslim law gift of Musha divisible property is irregular if made without partition.
• For example, a co-owned property, a house or a garden is Musha divisible. However, under the Hanafi doctrine of Musha, the gift without partition and actual delivery of possession is not void ab initio, it is merely irregular. It means it can be corrected by dividing.

Rules of Musha

The application of the Musha doctrine is subject to the following conditions –

• The ‘Rule of Musha’ is not applicable where property is indivisible.
• Where the property is divisible, the doctrine is applicable but only under the Hanafi School.
• Even under Hanafi School, if a gift is made against the rules of Musha, the gift is not void, it is merely irregular.
• Hanafi law recognizes certain exceptions to this doctrine.

Exception To Musha

The following properties even if divisible need not be divided first before the gift even in Hanafi School:

• When the gift is made to co-heir.
• Gift of share in limited company.
• Gift of share in some free hold property in commercial town.
• Gift of share in zamindari.