Kinds of Gift, Musha and Revocation

Besides simple hiba, Muslim law recognises hiba bil iwaz, hiba ba shart ul iwaz, sadaqah and ariyat, each with different requirements as to delivery and revocability; the musha doctrine makes a gift of an undivided share in divisible property irregular rather than void, and a gift is freely revocable before delivery but afterwards only by decree of a court.

Three topics sit together here, and they are connected by a single question: what does the law require of a transaction before it treats ownership as having passed? The kinds of gift differ chiefly in whether delivery of possession is required and whether the transaction can be undone. The musha doctrine is an application of the delivery requirement to undivided shares. Revocation is about when the law will allow the donor to change his mind.

Legal Framework

Kind	Nature	Delivery of possession	Revocable	Musha doctrine applies
Hiba	Simple gift, no consideration	Required	Before delivery freely; after delivery by decree	Yes
Hiba bil iwaz	Gift for consideration already given, treated as a sale	Not required	No, being in substance a sale	No
Hiba ba shart ul iwaz	Gift with a stipulation for a return	Required	Yes, until the iwaz is paid; irrevocable thereafter	Yes
Sadaqah	Gift for religious merit, to the poor or for pious purposes	Required	No, irrevocable	No
Ariyat	Grant of the usufruct only, a licence to use	Possession given for use	Revocable at will	Not applicable
Waqf	Permanent dedication of property for a religious, pious or charitable purpose	Delivery to the mutawalli	No, irrevocable once complete	Not applicable

Kinds of Gift

Hiba bil iwaz

A gift for consideration (iwaz) which has already been given. In substance it is a sale, and Muslim law treats it as one.

Feature	Position
Structure	Two independent transactions: a gift by A to B, and a gift by B to A of the iwaz, each complete in itself
Delivery of possession	Not required, the transaction being in substance a sale
Musha doctrine	Does not apply, so a gift of an undivided share is good
Revocable	No
Registration	Since it operates as a sale of immovable property, the ordinary requirements of the Transfer of Property Act and the Registration Act apply where the value is Rs 100 or more
Pre emption	The right of pre emption (shufa) arises, as on a sale

Why hiba bil iwaz escapes the delivery requirement and the musha doctrine: Both of those rules exist because a gratuitous transfer is easy to assert and hard to disprove, so the law demands the objective evidence that delivery supplies. Where consideration has actually passed, that evidential concern falls away: the transaction bears its own proof of seriousness. Classifying the transaction as a sale then follows, with all the consequences, including the requirement of registration and the availability of pre emption. This is the reason hiba bil iwaz is the device commonly used where an undivided share is to be transferred.

Hiba ba shart ul iwaz

A gift made with a stipulation for a return. It differs from hiba bil iwaz in that the iwaz has not yet been given; it is promised.

Feature	Position
Structure	A gift, subject to a condition that the donee will give something in return
Delivery of possession	Required, the transaction beginning as a gift
Revocable	Yes, until the iwaz is paid
After payment of the iwaz	Becomes irrevocable and takes on the character of a sale
Musha doctrine	Applies, the transaction being a gift at inception

The distinction between the two, which is constantly examined: In hiba bil iwaz the consideration has already passed, so the transaction is a sale from the outset, delivery is unnecessary and it is irrevocable. In hiba ba shart ul iwaz the consideration is stipulated for but not yet paid, so the transaction starts life as a gift, delivery is required, and it remains revocable until the iwaz is paid, at which point it hardens into a sale. The test is simply: has the iwaz been given, or only promised?

Sadaqah

A gift made with the object of acquiring religious merit, typically to the poor or for a pious purpose.

Feature	Position
Object	Religious merit, thawab
Delivery of possession	Required
Revocable	No, irrevocable
Musha doctrine	Does not apply
Donees	May be made to two or more persons, and to the poor generally
Distinguished from waqf	Sadaqah transfers ownership to the donee; waqf extinguishes ownership in the dedicator and vests the property in God, with only the usufruct applied to the object

Ariyat

A grant of the usufruct only, that is, a licence to use property, ownership remaining with the grantor.

Feature	Position
What passes	The usufruct, not the corpus
Revocable	At will
Heritable	No, the licence ends with the grantee
Distinguished from hiba	Hiba transfers the corpus (ayn); ariyat transfers only the use

Why the hiba and ariyat distinction matters practically: A grant which purports to give someone the right to occupy or enjoy property for life, ownership remaining in the grantor, is ariyat and confers no heritable interest. So the grantee's family takes nothing on his death. Where a client intends the recipient's heirs to benefit, the transaction must be a hiba of the corpus.

The Musha Doctrine

Musha means an undivided share. The classical doctrine was that a gift of an undivided share in property capable of division is invalid, on the reasoning that possession of such a share cannot be delivered, so the third essential of hiba cannot be satisfied.

**Hayatuddin v Abdul Gani (1974, reported 1976)** Bombay High Court, Chandurkar J

Facts: Lalmiya died in 1948 leaving a house. His sister Amnabi took 12 annas and his two widows 2 annas each. In 1952 Amnabi and Rashidbi executed a registered gift deed of their 14 annas interest to Hayatuddin, whom the deceased had brought up. The deed recited that the other widow's 2 annas had already been separated and that possession had been handed over, but no partition had in fact taken place before the gift; partition came only through a decree in a suit of 1955, which allotted to the donors precisely the portion they had gifted. Part of the house was tenanted and part occupied by Hayatuddin himself. The lower appellate court held the gift invalid because the property was undivided at the date of the gift.

Held: Appeal allowed and the gift upheld. Applying paragraphs 152, 159 and 160 of Mulla, a gift of an undivided share in property capable of division is irregular (fasid) but not void (batil), and is perfected and validated by a subsequent partition and delivery to the donee of the share given, or if possession is once taken. Delivery may be effected according to the nature of the property: for tenanted property by requesting the tenants to attorn, and where donor and donee both reside there by some overt act showing a clear intention to transfer possession. On the facts the recital, oral intimation to the tenants, three lawyers' notices, and the donors' conduct in joining Hayatuddin as co plaintiff to have their share separated and delivered showed that the donors "had done everything that was possible in the circumstances".

The court followed Hamid Ullah v Ahmad Ullah (All India Reporter 1936 Allahabad 473) and cited Sir Barnes Peacock in Sheikh Muhammad Mumtaz Ahmad v Zubaida Jan (1889) 16 Indian Appeals 205 that the musha doctrine "is wholly unadapted to a progressive state of society and ought to be confined within the strictest rules".

Why the fasid classification does all the work: An irregular transaction has legal existence and is capable of being perfected; a void one is a nullity and cannot be cured by anything. By classifying a musha gift as irregular, the law allows a subsequent partition, or the taking of possession, to complete what was defective at the outset. Note how closely this tracks the treatment of irregular marriages in Unit 1: in both contexts, a defect which is relative and curable produces irregularity, and the cure operates retrospectively to validate.

Exceptions to the musha doctrine

The doctrine does not apply, so the gift is good without partition, where:

the property is incapable of division, for example a staircase, a bathing tank or the right to a share in a well;
the gift is to a co heir or co sharer, that is, to someone already interested in the property;
the gift is of a share in a zamindari or taluka;
the gift is of a share in a freehold in a large commercial town;
the gift is of shares in a land company; or
the transaction is a hiba bil iwaz or a sadaqah.

Why the exceptions are as important as the rule: Taken together with the fasid classification, they leave the doctrine with very little practical work to do. The gift of an undivided share is good if the property cannot be divided, good if the donee is already a co sharer, good in a commercial town, good if consideration passed, good if it was for religious merit, and merely irregular and curable in every other case. That is precisely the confinement "within the strictest rules" that Sir Barnes Peacock called for, and it is the point to make when asked to assess the modern status of the doctrine.

Revocation of Gifts

The governing distinction is before and after delivery of possession.

Stage	Position
Before delivery of possession	The gift is not complete, so the donor may revoke freely. No suit or decree is needed, and the revocation may be by mere declaration
After delivery of possession	The gift is complete. Under Sunni law the donor may revoke, but only by a decree of a competent court; a mere declaration or an unwitnessed act is insufficient
Under Shia law after delivery	Revocation may be effected by a mere declaration, without recourse to a court

Why Sunni law requires a decree after delivery: Once possession has passed, the donee is the owner and has usually acted on that footing, perhaps by improving the property or dealing with it. Allowing unilateral revocation would leave every completed gift permanently insecure. Requiring a decree means the donee is heard, third party interests can be considered, and the moment of divesting is fixed by an order rather than by the donor's assertion. The Shia rule, permitting revocation by declaration, is the more literal reading of the classical texts but produces the corresponding insecurity.

Gifts which are irrevocable

Even before a decree, certain gifts cannot be revoked at all:

Ground	Explanation
Death of the donor	The right to revoke is personal and does not survive to his heirs
Death of the donee	There is no one from whom to revoke
Gift to a person within the prohibited degrees of relationship	Those whom the donor could not lawfully marry
Gift between husband and wife	Either way
Sadaqah	Made for religious merit
Hiba bil iwaz where the iwaz has been received	In substance a sale
Subject matter lost, destroyed or transformed	For example grain ground into flour, so that the thing gifted no longer exists in its original form
Donee has transferred the property	Whether by sale or gift
Value has increased in the donee's hands	The donor cannot take the benefit of the donee's improvement

Comparison Table: The Kinds Side by Side

Feature	Hiba	Hiba bil iwaz	Hiba ba shart ul iwaz	Sadaqah	Ariyat
Consideration	None	Already given	Promised	None	None
Object	Bounty	Exchange	Exchange	Religious merit	Use
What passes	Corpus	Corpus	Corpus	Corpus	Usufruct only
Delivery of possession	Required	Not required	Required	Required	Possession for use
Revocable	Before delivery freely, after by decree	No	Until iwaz paid	No	At will
Musha doctrine	Applies	Does not apply	Applies	Does not apply	Not applicable
Registration	Not required	Required, being a sale	Not required at inception	Not required	Not applicable
Pre emption arises	No	Yes	On payment of the iwaz	No	No

Illustrations

Hiba bil iwaz, undivided share. A wishes to transfer his undivided one third share in a house to B, and B has already released a debt of Rs 5 lakhs owed by A. The transaction is a hiba bil iwaz. Delivery of possession is not required and the musha doctrine does not apply, so the gift of the undivided share is good. But since it operates as a sale of immovable property, it must be registered, and a right of pre emption arises.
Hiba ba shart ul iwaz. A gifts land to B on the stipulation that B will give him a horse. Until the horse is delivered the transaction remains a gift: delivery of the land is required, and A may revoke. Once the horse is given, the transaction becomes irrevocable and takes on the character of a sale.
Musha cured by partition. A and B are co owners of a divisible house. A gifts his undivided half to C. At that moment the gift is irregular. A partition then takes place allotting to A precisely the portion he had gifted, and C is put in possession. The gift is validated: Hayatuddin.
Musha exception, indivisible property. A gifts his undivided share in a staircase used in common. The property is incapable of division, so the musha doctrine does not apply and the gift is good without partition.
Musha exception, co sharer. A gifts his undivided share in a house to B, who is already a co sharer in the same house. The doctrine does not apply.
Revocation before delivery. A declares a gift of his shop to B but has not yet delivered possession. A may revoke freely, by mere declaration, without any suit.
Revocation after delivery, Sunni law. A has delivered possession of the shop to B. A now wishes to revoke. He may do so only by obtaining a decree of a competent court. Under Shia law he could revoke by a mere declaration.
Irrevocable gift, relationship. A gifts a house to his brother, delivering possession. The brother is within the prohibited degrees, so the gift is irrevocable and no decree will be granted.
Irrevocable gift, transformation. A gifts wheat to B and delivers it; B has it ground into flour. The subject matter has been transformed and the gift cannot be revoked.
Ariyat, not hiba. A permits his cousin to occupy a house rent free for life, retaining ownership. This is ariyat. It is revocable at will, and on the cousin's death his heirs take nothing.

Recall Check

Distinguish hiba bil iwaz from hiba ba shart ul iwaz by reference to a single test, and state three consequences that follow.
State the musha doctrine, its modern classification, and five exceptions to it.
State the rules on revocation before and after delivery, and name five gifts that are irrevocable.

Key Cases

Hayatuddin v Abdul Gani (1974) Hayatuddin v Abdul Gani 1976
Issue: Whether a gift of an undivided share in a divisible house is void, and whether a subsequent partition validates it.
Rule: Such a gift is irregular (fasid) and not void (batil), and is perfected by a subsequent partition and delivery, or if possession is once taken. Delivery is effected according to the nature of the property: attornment for tenanted property, an overt act where donor and donee both reside there.
Held: The gift upheld. Cites Sir Barnes Peacock that the musha doctrine is wholly unadapted to a progressive state of society and should be confined within the strictest rules.

Abdul Rahim v Sk Abdul Zabar (2009) Abdul Rahim v Sk Abdul Zabar 2009
Issue: Whether a gift of tenanted property failed for want of delivery of possession.
Rule: Delivery may be actual or constructive, and may be made in such manner as the subject matter is susceptible of. Mutation procured by the donor establishes constructive delivery, and any agency of the donee to collect rent ends on mutation.
Held: Appeal allowed and the gift upheld, reversing a High Court that had insisted on actual delivery.

Mahboob Sahab v Syed Ismail (1995) Mahboob Sahab v Syed Ismail 1995
Issue: Whether the alleged gifts were complete.
Rule: A gift requires declaration, acceptance and delivery of possession, and a donor in possession of immovable property must completely divest himself physically of the subject of the gift.
Held: None of the essentials was proved; the suit was dismissed, the operative ground being res judicata between co defendants and fraud.

Md Hesabuddin v Md Hesaruddin (1983) Md Hesabuddin v Md Hesaruddin 1984
Issue: Whether a Muslim gift evidenced by an unregistered writing on plain paper is invalid.
Rule: S.129 of the Transfer of Property Act excludes Muslim gifts from Chapter VII including S.123, so no writing or registration is required; a writing that merely records the declaration is not registrable, and a registered deed cannot save a gift lacking delivery.
Held: The gift upheld.

Distinctions

Basis	Hiba bil iwaz	Hiba ba shart ul iwaz
The iwaz	Already given	Promised but not yet given
Character at inception	A sale in substance	A gift
Delivery of possession	Not required	Required
Revocable	No	Yes, until the iwaz is paid
Musha doctrine	Does not apply	Applies
Registration	Required, as a sale	Not required at inception

Basis	Sadaqah	Hiba
Object	Religious merit	Bounty or affection
Revocable	No	Before delivery freely, after by decree
Musha doctrine	Does not apply	Applies
Donee	May be the poor generally, or several persons	A determinate person

Basis	Sadaqah	Waqf
Ownership	Transferred to the donee	Extinguished in the dedicator and vested in God
What is applied to the object	The property itself	The usufruct only
Perpetuity	Not required	Essential
Administration	None; the donee owns it	By a mutawalli

Basis	Before delivery of possession	After delivery of possession
Is the gift complete	No	Yes
Revocation	Free, by mere declaration, no suit needed	Sunni law: only by decree of a court. Shia law: by mere declaration
Effect of the donee's dealings	Not applicable	A transfer by the donee makes the gift irrevocable

Basis	Musha gift, classical view	Musha gift, modern Indian view
Status	Invalid	Irregular (fasid), not void
Curable	No	Yes, by subsequent partition or by possession once taken
Judicial attitude	Applied strictly	"Wholly unadapted to a progressive state of society and ought to be confined within the strictest rules"
Authority	Classical texts	Hayatuddin (1974), Hamid Ullah v Ahmad Ullah (1936), Sheikh Muhammad Mumtaz Ahmad v Zubaida Jan (1889)

Flashcards

What is hiba bil iwaz?

A gift for consideration already given, treated in substance as a sale. Delivery of possession is not required, the musha doctrine does not apply, and it is irrevocable.

What is hiba ba shart ul iwaz?

A gift made with a stipulation for a return not yet given. Delivery of possession is required, and it remains revocable until the iwaz is paid, when it becomes irrevocable and takes the character of a sale.

Give the single test distinguishing the two.

Has the iwaz already been given, making it a sale from the outset, or is it merely promised, so that the transaction begins as a gift?

What consequences follow from hiba bil iwaz being a sale?

Delivery of possession is unnecessary, the musha doctrine does not apply, registration is required for immovable property of Rs 100 or more, a right of pre emption arises, and the transaction is irrevocable.

What is sadaqah?

A gift made with the object of acquiring religious merit, typically to the poor or for a pious purpose. Delivery is required, it is irrevocable, and the musha doctrine does not apply.

Distinguish sadaqah from waqf.

Sadaqah transfers ownership to the donee. Waqf extinguishes ownership in the dedicator and vests the property in God, only the usufruct being applied to the object, and it requires perpetuity and administration by a mutawalli.

What is ariyat?

A grant of the usufruct only, a licence to use property, ownership remaining with the grantor. It is revocable at will and is not heritable.

State the musha doctrine.

That a gift of an undivided share in property capable of division is defective, on the reasoning that possession of such a share cannot be delivered.

What is the modern classification of a musha gift?

Irregular (fasid) and not void (batil), and it is perfected by a subsequent partition and delivery, or if possession is once taken: Hayatuddin (1974).

Name five exceptions to the musha doctrine.

Property incapable of division; a gift to a co heir or co sharer; a share in a zamindari or taluka; a share in a freehold in a large commercial town; and shares in a land company. Hiba bil iwaz and sadaqah are also outside it.

Whose observation is that the musha doctrine is unadapted to a progressive state of society?

Sir Barnes Peacock in Sheikh Muhammad Mumtaz Ahmad v Zubaida Jan (1889) 16 Indian Appeals 205, cited in Hayatuddin.

Can a gift be revoked before delivery of possession?

Yes, freely, by mere declaration and without any suit, the gift not being complete.

How may a gift be revoked after delivery under Sunni law?

Only by a decree of a competent court. Under Shia law a mere declaration suffices.

Name six irrevocable gifts.

Where the donor is dead; where the donee is dead; a gift to a person within the prohibited degrees; a gift between husband and wife; sadaqah; and hiba bil iwaz where the iwaz has been received. Also where the subject matter is lost, destroyed or transformed, where the donee has transferred it, and where its value has increased in the donee's hands.

Why can a gift not be revoked once its value has increased in the donee's hands?

Because the donor cannot take the benefit of the donee's improvement.

Exam Scenario

Problem: Nasreen owns an undivided one third share in a large commercial building in Hyderabad and an undivided half share in a small residential house in a village, both held with her brother. In 2021 she executed an unregistered writing gifting her share in the building to her nephew Adnan, who was already a co sharer in it, and told the tenants to pay rent to him. In 2022 she gifted her share in the village house to her friend Salma, delivering possession of the portion she occupied; the house was not partitioned, but in 2024 a partition allotted to Nasreen precisely that portion, which Salma continued to occupy. In 2023 Nasreen gifted a plot of land to her sister Zubeida in return for Zubeida releasing a debt of Rs 3 lakhs which Nasreen owed her; that transaction was recorded in an unregistered writing and no possession was delivered. Nasreen now wishes to revoke all three transactions. Advise.

Step 1: Classify each transaction before analysing it

The classification decides what the law requires and whether revocation is possible.

Transaction	Classification	Why
The commercial building, to Adnan (2021)	Simple hiba	Gratuitous, so delivery is required and the musha and revocation rules are engaged
The village house, to Salma (2022)	Simple hiba	Gratuitous, so delivery is required and the musha and revocation rules are engaged
The plot of land, to Zubeida (2023)	Hiba bil iwaz	Zubeida released a debt of Rs 3 lakhs, so the consideration was already given; in substance a sale

Step 2: The building gifted to Adnan

Take the objections in turn.

Form. The writing is unregistered, but that is immaterial. S.129 of the Transfer of Property Act takes Muslim gifts out of Chapter VII including S.123, and on Md Hesabuddin a writing which merely records a declaration is not registrable under S.17 of the Registration Act.
Musha. The gift is of an undivided share, so the doctrine is raised, but it does not apply on two independent grounds: the property is a freehold in a large commercial town, and Adnan was already a co sharer.
Delivery. Nasreen told the tenants to pay rent to Adnan, which is attornment, the delivery tenanted property admits of: Hayatuddin, Abdul Rahim. The gift is complete.
Revocation. Possession having been delivered, she cannot revoke by declaration, and under Sunni law would need a decree of a competent court. But Adnan is her nephew, a person she could not lawfully marry, so he falls within the prohibited degrees and the gift is irrevocable. No decree will be granted.

This gift stands.

Step 3: The village house gifted to Salma

Musha is squarely engaged. An undivided half share in a small village residential house is property capable of division, and no exception applies: Salma is a stranger and not a co sharer, and the property is neither indivisible nor a commercial town freehold.

So at the date of the 2022 gift it was irregular (fasid) and not void: Hayatuddin, and Mulla paragraphs 152, 159 and 160.

The cure has since operated. The 2024 partition allotted to Nasreen precisely the portion she had gifted, and Salma continued in possession of it. That is the position in Hayatuddin, where the donors joined the donee to have their share separated and delivered and the gift was validated. The gift is perfected retrospectively and is now good.

Revocation. Possession having been delivered, revocation requires a decree under Sunni law. Salma is a friend, neither within the prohibited degrees nor a spouse, so none of the automatic bars applies. Nasreen may in principle sue, but she must obtain a decree.

Step 4: The plot given to Zubeida: hiba bil iwaz

The release of a debt of Rs 3 lakhs is consideration already given, so this is a hiba bil iwaz and in substance a sale. Three consequences follow.

Delivery of possession is not required, so its absence is no objection, which is the opposite of the position for a simple hiba.
The transaction is irrevocable, being a sale and additionally because the iwaz has been received. Nasreen cannot revoke it by declaration or by decree.
Because it operates as a sale of immovable property, the ordinary requirements of the Transfer of Property Act and the Registration Act apply, so the unregistered writing is ineffective to pass title where the value is Rs 100 or more.

Zubeida may have remedies in equity or under the doctrine of part performance depending on the facts, and a right of pre emption would have arisen in favour of adjoining owners on a sale.

The traps in this problem

Give both musha exceptions. The commercial town freehold and the co sharer donee are independent grounds, either sufficing, and giving both is worth the marks.

The further grounds of irrevocability. Even where a decree is available, the court will consider whether Salma has transferred the property or whether its value has increased in her hands, either of which defeats the claim.

The irony in the Zubeida transaction. The classification that makes it irrevocable also makes it vulnerable for want of registration, so Nasreen may achieve her object not by revoking but by pointing to the absence of a registered instrument.

Only one transaction is really open to being undone, the gift to Salma, and saying so is the point of the question.

Conclusion. The building gift to Adnan is complete and irrevocable, the musha doctrine not applying and the donee being within the prohibited degrees. The village house gift to Salma was irregular but was validated by the 2024 partition, and can be undone only by a decree of court.

That is subject to Salma not having transferred the property or improved its value. The Zubeida transaction cannot be revoked, but is open to attack for want of registration, which is Nasreen's only realistic route.