Doctrine of Mushaa
Mushaa means a property which is divisible and if such divisible property is gifted without dividing the property. It may result into confusion as to which part of the. property has been gifted. Therefore only in Hanafi the rule is that the divisible property should be gifted only after having divided the property. Otherwise it will be irregular hiba.
lf the property is indivisible the concept of musha will not be applicable.
Kinds of Mushaa
A Mushaa or undivided property may be of two kinds :
(a) Mushaa indivisible ( i.e. a property in which partition is not possible)
(b) Mushaa divisible ( i.e. a property which is capable of division)
Gift of Mushaa indivisible is valid. There are certain properties which by nature indivisible. The physical partition of such property is not possible. If attempt is made to divide such property, it’s original Identity is lost. For example bathing ghat, stair case, or a cinema house are the example of Mushaa indivisible.
The doctrine of Mushaa is not applicable where the subject matter of gift is indivisible. A gift of Mushaa indivisible is valid without partition under all schools of Muslim Law.
Under Hanfi School of Muslim law gift of Mushaa divisible property is irregular (fasid) if made without partition. For example a co-owned property, a house or a garden is Mushaa divisible. 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 means it can be corrected by dividing.
Rules of Mushaa
The application of Mushaa doctrine is subject to following conditions –
1. The rule of Mushaa is not applicable where property is indivisible.
2. Where the property is divisible,the doctrine is applicable but only under the Hanafi School.
3. Even under Hanafi School, if a gift is made against the rules of Mushaa, the gift is not void, it is merely irregular.
4. Hanafi law recognises certain exceptions to this doctrine.
Exception to the Concept of Mushaa
The following properties even if divisible need not be divided first before the gift even in Hanafi School. –
- When the gift is made to co-heir.
- Gift of share in limited company.
- Gift of share in some free hold property in commercial town.
- Gift of share in Zamindari.
Doctrine of Mushaa at present time.
The doctrine of Mushaa is neither legally required nor has any practical significance in India.