Explain the gift of Musha.

Question: Explain the gift of Musha. [RJS 1971, HJS 1988]

Find the question and answer of Muslim Law only on Legal Bites. [Explain the gift of Musha.]

Answer

Musha is an undivided share in property either movable or immovable. Musha refers to undivided portions of the property and in particular to such property which forms the subject matter of a gift. ‘Mushaa’ is derived from ‘shuyua’ which means 'confusion'. 

If, by the very nature of the property or by the relationship of the contracting parties; the gift of a definite share cannot lead to a confusion of enjoyment in future, the ‘musha’ rule shall not be applied with all its rigidity. The exceptions laid down by judicial precedents indicate that if the gift of the undivided share cannot affect the normal enjoyment of the property or if a physical partition may detrimentally affect the enjoyment of the property, a gift shall not fall because it is the transfer of an undivided share in the property.

Hedaya, 483,484; Baillie, 523-530. "A gift of part of a thing which is capable of division is not valid unless the said part is divided off and separated from the property of the donor, but a gift of part of an indivisible thing is valid," the reason being that the thing being divisible, "a complete seisin is altogether impracticable, and hence an incomplete seisin must necessarily suffice since this is all that the article admits of".

 An undivided share is called musha, because of the confusion that is likely to arise in the enjoyment of the property if a gift were made of an undivided share in the property by one co-sharer to a stranger. No such confusion can arise if the gift is by one co-sharer to another co-sharer. The result is that a gift by one of several heirs of his undivided share in a property which is capable of division to a stranger is irregular, but a gift of such a share in favour of a co-heir is valid.

The doctrine of musha unadopted to a progressive state of society

In Muhammad Mumtuz v. Zubaida Jan, (1889) 11 All. 460, 16 I.A. 205, their Lordships of the Privy Council said:

"the doctrine relating to the invalidity of gifts of musha is wholly unadapted to a progressive state of society, and ought to be confined within the strictest rules."

This principle was applied by the Allahabad High Court in the case of Hamid Ullah v. Ahmed Ullah, 1936 All LJ 292, where a sister made a gift to her husband of her share in six houses and three fields by a registered deed of gift. The property was divisible, but the gift was held to be valid as the donor who had only constructive possession had done all she could to put the donee in possession.

• Muslim Law – Notes, Case Laws, And Study Material
• Test Series for Competitions