The expression "gift" refers to an uncompensated transfer of property interest from one living person to another. It is inter vivos in nature and gratis. This is the accepted universal definition across all faiths, including Muslim law. According to Islamic law, a gift is known as "Hiba".

Through "an act of generosity by which a right of property is bestowed in something specified without a transaction," the Hanafi attorneys describe it. According to Shia Muslims, "a Hiba is an obligation by which property in a particular object is handed instantaneously and unconditionally without any exchange and free from any pious or religious motive on the side of the giver."

Gift of undivided share in the property (Hiba-bil-Musha) gave rise to the doctrine of Musha. The word Musha means an undivided share or part in property. Such property may be movable or immovable. The doctrine of Musha is only confined to hiba and not to the cases of gifts of the usufruct (ariat).

According to Hedaya,
"A gift of a 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 an indivisible thing is valid"

Mulla in dealing with gifts of undivided shares under the hanafi law says:
"The term 'Musha' is derived from shuyuu which signifies confusion. An undivided share is called Mushaa, 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 a co-sharer to another co-sharer. The result is that, a gift by one of several heirs of his undivided share in 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".

In this case, a part of an undivided property was gifted and question was whether such a gift is valid and whether the donee has possession over the property.

Facts:
Lalmiya had a property which was inherited by his wives Rashidbi and Makboolbi and sister Amnabi, after his death. Amnabi got 12 annas share and the two widows, Rashidbi and Makboolbi, got 2 annas share each. Mahoboolbi claimed to be a wife of Lalmiya and claimed a share in the property. This claim was negative by the court. The shares of Rashidbi and Amnabi was transferred by them to Hayatuddin as a gift through a gift deed. But it did not include the 2 annas share of Makboolbi.

Hayatuddin filed a suit for declaration and injunction that he was lawfully in possession of the house property. Makboolbi contested that the gift did not include her 2 annas share in the property. The trial court decreed the suit, but it was dismissed by the first appellate court. A final decree for partition was passed allotting the share to Rashidbi and Amnabi, the same part of the house property which was gifted by them to Hayatuddin.

Amnabi died on 18-11-1956 and the present defendants Nos. 1 to 6 were brought on record as her legal representatives in the appeal. The plaintiff alleged that since the date of the gift he has been in possession of the said property and has also introduced tenants therein, but that on the strength of the decree passed the defendants who were the legal representative of Amnabi tried to dispossess him . The present defendants raised a two fold defence to the suit. They firstly relied on the fact that the claim of Hayatuddin was rejected and secondly, they contended that the gift was void.

Issue:

• Whether the gift of an undivided property given by Rashidbi and Amnabi to Hayatuddin was valid?
   

Decision
The case dealt with the validity of the gift of Musha (undivided share) where the property was divisible. In the particular instance, the gift deed reciting the share of other coparcener Makboolbi was separated and the gift was of donor's share only. The intention to divert property was clear and the donee was in possession of the gifted property. The Court found that the share of Makboolbi was not separated and ordered partition. It was ruled that the gift of donor's share was valid as there could be the gift of undivided share.

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 done.

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 done. 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.

As a result, the judgment and decree of the lower appellate Court are set aside and the decree passed by the trial Court restored. The plaintiff appeal is allowed with costs.

Analysis
A gift of an undivided share [musha] in property which is capable of division is irregular (fasid) but not void (batil). The gift being irregular, and not void, 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.

What was necessary to make a gift of an undivided portion capable of partition valid was discussed at some length by a Division Bench of the Allahabad High Court in Hamid Ullah v. Ahmad ullah[1]. In that case the property consisted of six house and three parcels of land and the donor who was not in physical but constructive possession of the property, executed a deed of gift and got it registered.

The document recited that the donor was in proprietary possession of the property and was conveying to the donee the same sort of possession which she possessed, that she had given up all proprietary rights in the subject - matter of the gift and that the donee was at liberty to make transfers of the property in any way he chose.

The Division bench held that the gift was valid as the donor had gone practically all that she was able to do in the way of divesting herself of possession and giving to the donees the same possession as she had herself. In view of the speaking conduct of the donors it is difficult to hold in this case that possession of undivided share of the donors was not transferred by them to the present plaintiff.

In The Present Case The Judgement Given By The Appellate Court That The Gift Was Valid Is Satisfactory Due To The Following Reasons:

1. Gift deed declaration was done by the donors at the time of giving the gift to the donee.
    
2. Intimations were given to tenants orally and through notices by the donors after they gifted the property to donee stating that, from thereon the rent must be paid to Hayatuddin as they have transferred the property to him.
    
3. Both of the donors Amnabi and Rashidbi joined with Hayatuddin in filing the suit for declaration of the property to have their share separated and delivered possession of. Amnabi supported the suit from the donee's side till her death on 18-11-1956.
    
4. Hayatuddin was residing in the property since childhood and was bought up by Lalmiya (the person from whom the property was inherited by Rashibdi, Amnabi, and Makboolbi) from his childhood.
    
5. Hayatuddin was in occupation of a part of the property and one part was given as rent to tenants.

There are compelling reasons that it's not possible to invalidate this gift as it can inferred from the actions of both the donors that they wanted Hayatuddin to have the possession of the property. They have reiterated this in every occasion which had arised.

Amnabi wanted Hayatuddin to have ownership and possession over the prop but it was the legal representatives of Amnabi that acted as defendants and was contesting against the plaintiff to prove that the gift deed was invalid. The legal representatives of Amnabi should have no possession over the property since the heirs of Amnabi had clearly divested herself of her 3/4th share in the estate of Lalmiya by making a gift in favour of the plaintiff. This was her motion till her death, which was proved, through her actions in various situations.

Conclusion:
In the present case, the donors of the gift is repeatedly confirming their intention and will to transfer their share in the property to Hayatuddin as a gift. They initially had signed and attested the gift deed, they became the parties to the suit filed by Hayatuddin and they also informed the tenants in the property about the transfer of the property.

Given this, the gift proves to be absolutely valid, once the partition takes place and the share of makboolbi is handed over. As none of the plaintiffs has ever tried to take over the share of makboolbi, there is no other reason to consider this gift invalid.

End-Notes:

1. AIR 1936 All 473