The word “musha” means an undivided share or part in a property, movable or immovable. Among the Shajis and the Ithana Asharis, the gift of musha is valid, if the donor withdraws his dominion and allows the donee to exercise control.
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But the rule is otherwise among the Hanafis. The general rule is thus laid down in the Hedaya, “A gift of a part of a thing which is capable of division is not valid unless they said part is divided off and separated from the property of the donor; but a gift of an indivisible thing is valid”.
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The reason for the latter rule is that no complete possession of the undivided share or part can be given and, therefore, incomplete possession must suffice. On the other hand, the reason for the former rule is that when part or share is capable of division, the gift cannot be valid till the delivery of completed possession is made by dividing it from the rest.
Obviously, a share or part in a property may be: (i) by its very nature indivisible, such as a share in a common staircase or a right of bathing in a tank or hamam, or (ii) it may be divisible by separating it from the rest. In the former case of gift of the undivided share is valid.
Thus, a share in a staircase, a share in the business of Turkish bath, or a share in the bank of a tank, can be subject-matter of a valid hiba. In the latter case, viz., when the undivided share in the property is capable of division, the gift is not valid. However, such a gift is not void, but merely irregular. It is capable of being perfected by diving the share and handing over its possession to the donee.
The doctrine of musha has been subject to much criticism. It has been said that the doctrine is “wholly unadapted to a progressive society”. The doctrine has been confined to within the strictest rules by judicial interpretation, and has been cut down considerably. Thus the following exceptions have been recognized:
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(i) The gift by one co-sharer to the other. In Md. Buksh v. Hosseni, on the death of a Muslim, his widow W, son S and his daughter D succeeded to his property. W made a gift of her undivided share in the inherited property to S and D. The gift was held valid. In such a case it is necessary that the donor should divest himself or herself totally of his or her proprietory rights.
(ii) Gift of a share in a zamindari or a taluka. Thus, in Ismail v. Idrish, a gift of an undivided share in Kaimi land was held valid.
(iii) Gift of a share in freehold property in a large town. In Golam Arif v. Saidoo, one A made a gift of one-third of the house owned by him and situated in Rangoon. The gift was held valid.
(iv) Gift of a share in a land company. In Ibrahim v. Saiboo, it was said that it would not be proper to apply the doctrine of musha to shares in companies and freehold property, since in its origin the doctrine applied to very different categories of property.
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The aforesaid exceptions are also justified on principle. The word “much” signifies confusion. The gift of undivided share is prohibited since.
It is likely to cause confusion in the enjoyment of property. But not such confusion can arise if the gift is made by one co-sharer, to another, and in the cases stated above.