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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 127
July 18, 2009

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Transfer of immovable property

Syed Gouseuzzaman Haideri Ali

TRANSFER from dead person to living person has two sides: (i) Testamentary Succession (ii) Intestate Succession. Under Muslim Law, testamentary successions are (a) Will and (b) Gift during marz-al-maut. These are governed by Islamic Law of testamentary succession. The essential conditions of will are: i) it takes effect after the death of the testator, ii) no bequest more than one third and iii) no bequest in favour of an heir. In Muslim Law, Will can be made orally. It is not necessarily to be reduced into writing. Registration of Will is not compulsory. The author of the Will can change the contents of the Will at any time.

Gift during marz-al-maut encompasses all the essential conditions of gift intra-vivos, such as (1) There must be offer from the donor, (2) Acceptance from the donee and (3) Immediate delivery of possession. It is also subject to all restrictions laid down in the law of will such as (1) It takes effect after the death of the donor, (2) Gift during marz-al-maut cannot be done more than one third of the property and (3) It cannot be made to an heir. Under Hindu law, after the death of the author of the will probate is to be secured from the District Judge for its execution.

Will under Hindu Law
Under Hindu Law any adult may dispose of his property by will, provided that it does not defeat the legal right of maintenance of his wife or any other person. A Hindu can dispose of his separate or self acquired property by will. At present Hindu will is governed by Succession Act 1925. According to section-63 of Succession Act 1925, every Hindu will must be in writing, signed by the testator and attested by at least two witnesses.

Intestate succession
In Bangladesh the law of intestate succession of the Muslim is governed by Hanafi law of inheritance and of the Hindu is governed by Dayabhaga School of Inheritance. There are three classes of heirs in Hanafi Law of inheritance, namely, a. Sharers--entitled to have a prescribed share of inheritance b. residuaries -- take no prescribed share but succeed to the residue after the claims of the sharers are satisfied and c. distant Kindred-- all those related by blood who are neither sharers nor residuaries. There are three classes of heirs in Dayabhaga Law of inheritance under Hindu law namely, (a) Sapindas (b) Sakulyas and (c) Samonodakas.

So, there are many types of transfer of immovable property. Some are transfer from living person to living person others are from dead person to living person. There is an urgent need for central administrative body to regulate all kinds of transfer of immovable property. Further a unified law should be enacted to govern all kinds of transfer of immovable properties. Transfer of Property Act 1882 is not comprehensive. It does not deal with transfer from dead person to living person. At present, rights of transferees are hampered most frequently. Hence, there should be clear legal provisions to protect the rights and interests of the transferee or the buyer of land. In modern time, society has become more complicated and situation has become more complex, therefore it is better if all transfer of immovable property is written down and registered.

Syed Gouseuzzaman Haideri Ali is an Advocate of the Supreme Court of Bangladesh.as


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