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February 8, 2004 

Your Advocate

This week your advocate is M. Moazzam Husain of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.

Q: Our nephew took money from different people giving writing statements, some in judicial stamp, some in plain paper that I am selling my portion of land property which I am entitled to get from my father. It can be mention here that his father died before our parents death. Our parents are no more in this world and still their land property is unsold. Moreover, as we neglected our parents and did not looked after them in their old age, they asked us not to take and claim any portion of their property after their death. More over our mother categorically told all the property belongs to her will be owned by her youngest son, none should claim that. But she could not make any written deed in this respect. We are five brothers. Our parent's property is still undivided. Our questions are : A. The way our nephew sold his expected portion of property and took money, is it valid from the point of legal view? Can those people claim any money or property legally? B. Since our parents declared pointblank, we would not claim their property as their inheritor; can we get our share? C. Our mother declared and wished her property should be owned by our youngest brother and told it to many of our relatives, so can we claim or get her property legally or not? D. Our youngest brother claims himself as the sole owner of our mother's property as she wished him to be so. Please advice each portion from the legal point of view and what should we do? Among ourselves strain relation has arised.

Md Kamal Ahmed, Mirpur, Dhaka.

Your Advocate: You have asked four questions. First question is, whether your nephew has the right and title to sell out or otherwise dispose of the property of his grandparents he claims to have inherited through his late father . In the peculiar circumstances it is to be seen how far or whether at all your nephew has inherited the share of his grandparents' property. You have said his father predeceased his grandparents. Under the Muslim law of inheritance sons and daughters of anyone who has predeceased his/her parents expiring before 15th July,1961, does not inherit the property of their grandparents. That is, if your parents had died before the aforesaid date your nephew will not inherit any property left behind by them. But if your parents had died on or after the aforesaid date your nephew and his brothers and sisters, if any, will inherit the entire share of their grandparents' property which their father would have inherited, if alive. This is the measuring road by which you can asses the validity of the claim set up by the persons purchasing or proposing to purchase land from your nephew or of any other claim arising out of such a deal.

The second question is since you and your brothers did not look after your parents in their old age and they expressly wished all their sons, with part exception to the youngest son, not to claim their property after their death whether you still are entitled to the property left behind by them. I wish you were not. It is extremely sickening to any conscientious being to note that old, helpless parents were left abandoned in their old age and virtually had to die uncared for. This is a kind of conduct on the part of a son or daughter which goes to their roots as human. If I had the authority I would have deprived every such son or daughter from the property of the parents he or she had neglected. Law is possibly not as unkind as I am. Under the Sunni law 'a person who has caused death of another whether intentionally, or by mistake, negligence, or accident is barred from succeeding to the estate of that other'. In my opinion the negligence as contemplated by law cannot be extended to mean a neglect you have indicated. So you can feel safe in respect of your entitlement to your parents property. Irrespective of your conduct it has already devolved upon you and your brothers as their heirs.

The third question is about your mother's intention to give all her property to her youngest son. As could be gathered from your words your mother did neither make a gift nor a will strictly in the legal sense of the terms. Her wish seems to have ended more in grief and anguish than in legal transactions. There is no element of gift in her actions. So far as 'will' is concerned, it cannot be made in favour of an heir unless the other heirs consent to the same after the death of the testator. So there is no elements of valid will either. Therefore, you have no impediments in inheriting your mother's property also which in fact has devolved upon you and all your brothers equally.

The fourth question already stands addressed along with the third. So, I hope, it needs no separate treatment.