Sale of an Undivided Share (Musha‘)

Question

A man named Bashir Ali executed a deed of sale of his share in some houses in favour of the mosque known as “Hasan-wali”, and gifted and remitted the price (thaman) to the mosque. On behalf of the mosque, through the mutawalli (trustee), a suit for partition was filed in court. On behalf of the defendant Bismillah a reply was submitted that this document is not a deed of sale but a deed of gift, and that a gift of an undivided share (musha‘) is not valid, so the suit for partition is not sound.

Answer

The case in question, according to the wording of the attached deed of sale, is a sale, not a gift, because the words “sale” and “selling” are expressly mentioned in it. Moreover, the definition of sale applies to it: [ar]هو مبادلة المال بالمال بالتراضي[/ar] “It is the exchange of property for property by mutual consent” (al-Bahr, vol. 5, p. 256).

Source: Fatawa Mahmudiyya

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