Doctrine of Mushaa-
Mushaa is derived from the Arabic word “saayu” meaning “undivided share in property”. The rule of Mushaa as laid down in Hedaya, “is a gift of part of a thing, which is capable of division, is not valid unless the part is divided off and separated from the property of the donor whereas a gift of an indivisible thing is valid.
Shafei and Ithna school of thought recognise this principle. According to Asharia Shia, a gift of undivided property can be validly made. It is necessary that the donor must gift to the done possession of the undivided property. Hanafi School does not recognise this doctrine.
Kind of Mushaa
1. In property incapable of division.
2. In property capable of division.
In property incapable of division–
A gift of an undivided share in a property (Mushaa) which is not capable of division is valid, for e.g. 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 stair case though it is a gift of a Mushaa is valid, for a stair case is not capable of division.
In property capable of division-
If property is capable of division, the gift of Mushaa will be irregular though not void under Hanafi Law. It can be rendered void by subsequent partition and delivery.
Gift of Mushaa in property capable of division is valid in the following cases-
a. Gift by one heir to another.
b. Gift of a share by a co-sharer in a zamindari or talauqa.
c. Gift of share in the company.
d. Gift of share in the freehold property.
e. Gift of undivided but divisible property.
f. Gift of a Mushaa with the stipulation that the done shall pay a certain sum.
Gift by one heir to another–
Such kind of gift is valid. In Mohammad Buksh v. Hussaina Bibi, where a Muslim woman dies leaving a mother, a son and a daughter the mother can make a valid gift of share to both or any of them.
Gift of a share by a co-sharer in a zamindari or talauqua–
This kind of gift is valid, as what is gifted is the right received and to collect separately a definite share of produce or rent of the share, e.g. if A and B are co-sharer in a zamindari, each having a well-defined share in the rent of undivided land, and A makes a gift of his share to B, there being no regular partition of zamindari the gift is valid.
However, after the abolition of the zamindari system, it is of no significance.
Gift of share in a company-
Gift of share in a company is valid.
Gift of a share in the freehold property-
In a large commercial town gift of a share in the freehold property is valid.
Gift of an undivided but divisible property–
Gift of an undivided but divisible property to two or more persons jointly is valid for e.g. – X makes a gift of the house to A and B in equal share as tenants in common. The property is not divided off and, though their share is clearly defined, possession of their specific shares is not given to A and B. The tenants are given notice that the properties have been given away to A and B, to whom the rent is paid.
Gift of a Mushaa with the stipulation that the done shall pay certain sum–
Gift of a Mushaa with the stipulation that the done shall pay a certain sum to someone is not subject to impediments by the law of Mushaa.
SHIA LAW– According to Shia Law gift is valid in each case whether the property is divisible or indivisible provided the donor gives to donee possession of property by vacating and permitting the donee to control it.
1.Kasim Hussain v. Sharif-un-Nissa