Hiba: Gift Under Muslim Law- Questions & Answers By Justice V Ramkumar [Part-V]

Q.15 Can there be a gift of “mushaa” where the property is indivisible ?

Ans. Yes. A valid gift may be made only of an undivided share which is not capable of partition.

E.g. gift of an undivided share in a staircase is valid; a gift of an undivided share of the banks of a tank is valid if the banks are regarded as indivisible. (Vide Ala Baksa v. Mahabat Ali AIR 1935 Cal. 739).

Q.16 Can there be a gift of “mushaa” where the property is divisible ?

Ans. No. Gift of a mushaa (undivided share) in property which is capable of division is irregular (fasid) but not void. The gift being irregular may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated.

E.g. “A” makes a gift of her undivided share in certain lands to “B”. The share is not divided at the time of gift, but it is subsequently separated and possession is delivered to “B”. The gift, though irregular in its inception, is validated by the subsequent delivery of possession.

• Gift of undivided share (musha) in a property which is capable of division is only irregular but not void. It is time that the “doctrine of musha” which is moribund, is treated as dead. (Vide K.P.Khader v. K.K.P.Kunhamina 1970 KLT 237 - V. R. Krisha Iyer - J).
• If gift of the undivided share cannot affect the normal enjoyment of the property, the gift cannot be treated as void ab initio   and the gift shall not fail merely for the reason that it is a transfer of a musha. The donee, in such a case, has a right to sue for partition. (vide Kunhimoideenkutty v. Abdul Khader 1977 KLT 193 -     N. D. P. Namboodiripad – J).

Q.17 Are there exceptions, if any, to the doctrine of mushaa in respect of properties which is capable of division and   which are they ?

Ans. Yes. Even though in a case where the undivided property is divisible, a gift of mushaa is invalid, in the following exceptions such a gift will be valid:-

1. Where the gift is made by one co-heir to another.

Illustration :- A Mahomedan female dies leaving a mother, a son and a daughter as her only heirs. The mother may make a valid gift to her undivided share in the inherited to the son or to the daughter or jointly to the son and daughter. (Vide Mahomed Bukh v. Hoosseini Bibi (1888) ILR 15 Cal. 684).

2. Where the gift is of a share in zemindari or taluka.

Illustration :- “A”, “B” and “C” are co-sharers in a certain zemindari. Each share is separately assessed by the Government and has a separate number in the Collector’s book and the proprietor of each share is entitled to collect a definite share of rents from the tenants. “A” makes a gift of his share to “Z” without a partition of the zemindari. The gift is valid since it is not a gift strictly of a mushaa, the share being definite and marked off from the rest of the property. (Vide Jafar Ali Khan v. Nasimannessa Bibi AIR 1937 Cal. 500; Kairum Bi v. Mariam Bi AIR 1960 Mad. 447 - Balakrishna Aiyar - J).

3. Where the gift is of a share in freehold property in a large commercial town.

Illustration :- “A” who owns a house in Rangoon, makes a gift of one-third of his house to “B”. The gift is valid, the property being situated in a large commercial town. (Vide Ibrahim Goolam Ariff v. Saidoo (1907) ILR 35 Cal. 1; Mt. Natho v. Hadayat Begum AIR 1949 Lah. 238.

4. Where the gift is of shares in a land company.
5. Doctrine of mushaa does not apply to transfers (other than gifts) for consideration.

(Vide para 160 of Principles of Mahomedan Law by Mulla).

Q.18 Has it been judicially noticed that the doctrine of mushaa is not adaptable to a progressive society ?

Ans. Yes. Way back in 1889 (in Sheikh Muhammad Mumtaz Ahmed v. Zabaida Jan ILR XI All. 416 PC – Barnes Peacock.) there Lordships of the Privy Council observed that the this doctrine relating to the invalidity of gifts of mushaa is wholly unadapted to a progressive state of society and ought to be confined within the strictest rules. (See also Ala Baksh v. Mahabat Ali AIR 1935 Cal. 739; Para 18 of Avulla Hajee v. Mammu 1958 KLT 1184 - Vaidialingam - J).

Q.19 Is a “contingent gift” valid under Muslim Law ?

Ans. No. A gift cannot be made to take effect on the happening of a contingency. (Vide Abdul Karim v. Abdul Qayum (1906) ILR 28 All. 342 – Banerji - J; Para 163 of Principles of Mahomedan Law by Mulla).