TRANSFER OF PROPERTY IN MUSLIMS OF THE MALABAR

REGION OF KERALA
A Study on the Succession and Conveyance of property titles in each Community by
Land Legislations
Ar. Fathim Rashna Kallingal
M.Plan (Urban Planning) - Pursuing
Department of Architecture
National Institute of Technology, Calicut

Abstract
Transfer of property is different in various communities, within various regions, within various states
of India. In India as a whole, the property transfer is governed by Transfer of Property Act 1882. When
religions come into picture, the succession of property transfer is regulated by the Common Laws
pertaining to their religion. While in the real world, the practice or the procedure may differ from
what is actually prescribed. This study concentrates on the proceedings in property transfer by one of
the community in a particular region of Kerala, taking an individual for the case study, as an attempt
to validate the above note.

Keywords: Property transfer; Succession; Muslim Law; Shariat Law; heir; inheritance.

1. Introduction
India being a diversified secular country, gives the freedom to the citizens to follow any
religion. Though governed with a unified system of law, there are certain areas where the
common laws can be adopted. Norms on succession during transfer of inheritance and/or
acquired property is one such field.
The transfer of property in India is guided by the Transfer of property Act 1882. The Act, as
the year denotes, came into being during the British governance in India. They put forward
the Act, to make their purchase of land from the natives of pre-independent India easy and
favouring them. The Inheritance rules of the transfer of property are regulated by Common
laws corresponding to the religion followed by the transferor. While the Hindus, Sikhs,
Buddhists and Jains are governed by the Hindu Succession Act, 1956, the Christians are
guided by the Indian Succession Act, 1925. The Muslims follow the Shariah Law or the
Muslim law of Inheritance.
Though the law or Act states certain rules and regulations regarding property inheritance, the
procedure in real world may or may not comply with the same. This paper is an attempt to
study how the inherited and acquired properties are transferred in communities, focusing on a
typical Muslim community in the Malabar region of Kerala, taken as a sample for the study.

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2. Background Research
The Muslim Personal Law (Shariat) Application Act, 1937 makes provisions for the Muslims
of India to adopt the Muslim Personal Law (Shariat). This can be implemented in the Property
rights too. However, the law is not codified and is applicable to the Muslims when there is
conflict with the provisions in the Transfer of Property Act 1882. The three major conflicts
are firstly, the difference in the division of shares among the heirs, secondly the provision of
transfer of property to the unborn heir, which is not prevailing as per Muslim law, and thirdly,
the prohibition of transferring more than one third of the property by means of will or as gift
deed, which is allowed as per TP Act.
The Muslim Law provides for the property of a Muslim, after his death, to be used for the
payment of his funeral expenses, debts and wills, if any. The remaining property shall be
inherited by the heirs. All the property of a Muslim, including movable and immovable,
inherited and acquired, falls into the same category and the law is applicable to all in the same
manner. There is no division of property into ancestral or self-acquired, which is found in
other religions. After the death of a Muslim, all his property is distributed among the heirs
and this process is repeated to the next generation of heirs and so on. No person can be an heir
of a living person, the inheritability is allowed only when he dies. On the day of registration
of property deed, the property gets its new owner, and legally the new owner should use or
move into (in the case of house) the property from the same day onwards.
The Doctrine of representation is not applicable in Muslim law. It is the representation of an
individual as an heir, in the place of his deceased father. For example, suppose an individual
X has got two sons Y & Z and grandsons Y1 through Y and Z1 and Z2 through Z. If the son Z
dies before the death of X, the grandsons Z1 and Z2 will not get share of the property of X.
Or the heirs of X shall be Y, Y1 and Y2 only.
The Muslims in Kerala mostly belongs to two schools of thought, the Sunnis and the Shiyas.
The distribution of share among the heirs of same class but belonging to different branches is
different in Sunni and Shiya Muslims. The Sunni Muslims follow the system in which the
share is equally divided to all the heirs irrespective of which branch they belong to. For
example, in the example quoted above, if the sons Y & Z dies before the death of X, all the
grandsons Y1, Z1 and Z2 get equal share, ie.1/3rd each. While in Shiya Muslims, the share
will be divided into two equal parts, since there are two branches through Y and Z. The half
share of X is distributed among Y1 and any other brothers and the other half is distributed
equally among Z1, Z2 and any other brothers.
In the case of male and female heirs, the male heir gets 2/3rd share of his ancestor while the
female heir gets only 1/3rd share. The justification behind this rule is that the female Muslims
get an additional amount or property in the name of Mehr from the males, during their
marriage and the males are primarily responsible for the maintenance of his wife and children.
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The applicability of Muslim law to a Muslim is also dependent on the Act under which his
marriage is registered. If the Muslim registers his marriage under the Special Marriage Act,
1954, then the Indian Succession Act, 1925 is applicable.

3. Methodology
After the background research focusing on the procedure of transfer of property under
Muslim law, a case study was done to study the system followed by the Muslims of the
Malabar region of Kerala, in the real world. A Muslim individual staying in the region was
identified and information collected regarding the actual method of transfer of ancestral and
self-acquired property in his family. This was compared with the existing law applicable in
the context. The similarities and/or disparities were analysed, inferences made and concluded.

4. Observations
The selected individual is a 57 year old, male, a Muslim by birth, resident of Vengeri area of
Kozhikkode, Kerala. He has an elder sister, 59 year old, resident of Kakkodi area of
Kozhikkode Kerala. Their parents were deceased ten years back. The property, currently in
his name, was inherited from his father. There was no distinction between inherited and selfacquired property during the transfer. His father had three brothers and one sister and
inherited the property, in the form of land, from their father (grandfather of the selected
individual) as per the Muslim law, 2/3rd of property as male share and 1/3rd as female share.
He (the father) purchased the female share from his sister (aunt) and added to the property
and built a house in the land. Hence the ancestral property and the self-acquired property, the
land along with the house, were combined in a single deed during the transfer to the selected
individual. This transfer was carried out as a settlement deed, wherein the entire property of
his father was transferred to him. No share was given to his sister, who actually had 1/3rd
share in the property. This was neither as per Muslim personal law nor as per Indian
Succession Act, 1925. They had reasoning for this action, which was personal. The entire
procedure was carried out by the strength of his fathers Will and with the consent of the
female heir, his sister and came into action on the same day of registration of the document,
which was few weeks before his fathers death.
The property in the name of his deceased mother had been transferred in the name of his sister
by giving up his claim of the share. Though Relinquishment/release deed was applicable, this
transfer was registered as Sale deed, to prevent any disputes in the future, from the inheritors
of the next generation.

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5. Conclusion
From the above findings, it is clear that although the applicable Acts specify certain
provisions, it may or may not be followed in the real world. All these rules come into picture
only when a dispute among the heirs arises. Here we have observed that the other heir had no
objection in transferring the whole paternal property to the individual which was because of
some personal reasons. Had the other heir had any objection, and filed a suit and if the matter
would have gone into the court and the rule or Act, whichever is applicable, (Muslim personal
law in this case) shall be considered for such disputes. Hence we can conclude that nowadays,
people give weightage to their thoughts and philosophies rather than any rules or regulations
which may or may not be practical or relevant in the present context.

6. Bibliography

Transfer of Property Act, 1882

Muslim Personal Law (Shariat) Application Act, 1937

13 General Principles of Inheritance under Muslim Law in India- Pragati Ghosh

Comparative study of Gift under Islamic Law and Transfer of Property Law: Indian
perspective- Tabrez Ahmed

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