Gift Of Mushaa The Hanafi Doctrine of Mushaa LL.B Notes

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Defination of Gift of Mushaa

Why DOCTRINE OF MUSHAA INTRODUCE

kind of mushaa

Mushaa Indivisible

  Mushaa-Divisible:-

Exceptions to the Doctrine of Mushaa:

               Gift of Mushaa: The Hanafi Doctrine of Mushaa:

The word Mushaa has been derived from the Arabic word Shuyua which literally means ‘confusion’. Under Muslim law, Mushaa signifies an undivided share in a joint property. Mushaa is therefore, a co-owned or joint property.This Doctrine introduce by Hanafi jurists.

Why DOCTRINE OF MUSHAA Introduce?

If one of the several owners of this property makes a gift of his own share, there may be a confusion as to which portion or part of the property is to be given to the donee In other words, there may be a practical difficulty in the delivery of possession if gift of a joint property is made by a donor without partition of the gifted share.

To avoid any such confusion and difficulty at the stage of delivery of possession, the Hanafi jurists have evolved the principal of Mushaa. Where the subject-matter of a gift is co-owned or joint property, The doctrine of Mushaa is applied for examining the validity of the gift.

 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

Kinds of mushaa;-

A Mushaa or undivided property may be of two kinds:

 (a) Mushaa indivisible

 (b) Mushaa divisible

Mushaa Indivisible:

Means a property in which the partition or division is not possible. For example, a bathing ghat, a stair case or a cinema house etc. are indivisible Mushaa properties. According to all the schools of Muslim law, a gift of Mushaa indivisible is valid without any partition and actual delivery of possession. The doctrine of Mushaa is not applicable where the subject-matter of gift is indivisible.

.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.

Mushaa-Divisible:-

Mushaa divisible is property which is capable of division. A co-owned piece of land, house or a garden, is Mushaa-divisible.  Under Hanafi law, gift of Mushaa-divisible property is irregular (fasid) if made without partition. 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). it may be regularised by a subsequent partition and by giving to the donee the actual possession of the specified share of the property. The operation of the rule is subject to following limitations:

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:

Gift of undivided property is valid even if made without partition where donor and donee are co-heirs.

 For Example; 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.

(2) Gift of Share in Zamindari:

When the share In zamindari was gifted by one of its co sharer the doctrine of musha is not applicable.

(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.

(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.