Introduction

The case dealt with the validity of the gift of Musha (undivided share) where the property was divisible.

Facts

• Lamiya (Husband) had admittedly two wives, Rashidbi and Makboolbi. And, he also had a sister named Amnabi.
• He died in 1948 leaving behind the house property in dispute.
• His two widows and the sister admittedly succeeded over his estate.
• Amnabi got 12 annas share and the two widows, Rashidbi and Makboolbi, got 2 annas share each.
• Amnabi and Rashidbi through a gift deed gifted their house property valued at Rs. 1,000/- to a person named Hayatuddin.
• The share of Makboolbi was already separated from the property before executing the gift deed.
• As per the gift deed, the property was already in possession of donee, which was later handed over to him properly and the gift deed also permitted the donee to use the property in the manner he wants to use it.
• The donors gifted their shares of the value of 14 annas in the property to the donee and mentioned that none of the heirs of the donors would have any interest in the gifted property.
• In 1955 the two donors as plaintiffs Nos. 1 and 2 and donee filed a civil suit to declare Hayatuddin (donee) as the owner of the property, and an alternative relief of partition and separate possession was also claimed in the plaint.
• Makboolbi who was a defendant, stated in the court that the gift in favour of the present plaintiffs was not binding on her two annas share in the property.
  • The two tenants who were in physical possession of the property were also added as defendants.
• The suit was decreed by the trial Court in favour of plaintiffs.
• The suit for which this appeal arose was filed to declare Hayatuddin the owner of the property where the defendant who was plaintiff in the former suit contended that the former suit applies as res judicata upon this suit and the gift is void.

Issue Involved

Whether the gift of an undivided share in a property which was divisible valid or not?

Observations

• The case dealt with the gift of Musha (undivided share) where the property was divisible.
• The property was partly in occupation of donee and partly of the tenant.
• The donor intimated orally and subsequently by the notices to the tenant about the gift and delivery of possession to donee.
• The donors also joined as co-plaintiff in the suit filed by the donee for declaration that he was in possession of the property gifted.
• It was held that the donors had done everything possible to hand over possession of the premises which they wanted to gift to the donee.
• It was further held that it could not be said that the possession of undivided share was not transferred by the donors to the donee therefore, the gift was valid.

Conclusion

The court restored the decree passed by the trial court.

Notes

Gift of Mushaa

• Under Islamic law, Mushaa denotes an undivided share in joint property. It therefore forms part of a co-owned or joint property.
• If one of the several owners of such property makes a gift of his own share, there may arise confusion in regard to what part of the property is to be given to the donee.
• To avoid such confusion, the doctrine of Mushaa was evolved. Gift of Mushaa means a gift of a share in the co-owned property is invalid without the partition and actual delivery of that part of the property to the donee.
• If the co-owned property is not capable of partition, the doctrine of Mushaa is inappropriate

Mushaa Indivisible

• It includes the property in which the partition is not possible. Eg. a staircase.

Mushaa Divisible

• Mushaa divisible is the property which is capable of division without affecting its value or character. Eg. A co-owned piece of land.