INHERITANCE BY CHILDREN LIVING ABROAD

Publishes by The Daily Star on February 09, 2013 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Query
My bother has died last year living behind some valuable landed property in Bangladesh. He has three children, all born and living in Europe, who were born out of the wedlock between my brother and his European wife. Subsequently, my brother got divorced with her and remarried in Bangladesh. During his second marriage he has given birth to another two children in Bangladesh and during the continuity of his second marriage he died. Now, my present sister-in- law and her two children are not willing to give any property to my brother’s three children born and living in Europe. It may be helpful for you to know that my brother had earlier obtained citizenship of that European country and as a part of their law; he had to surrender Bangladeshi citizenship.

I would be grateful if you may kindly let me know whether my brother’s children living in Europe are entitled to inherit his property in Bangladesh.

Anonymous

Response
Thank you for your queries. With regard to your queries concerning inheritance of property by your brother’s children living in a country of Europe, the answer is not always very straight forward and sometime it is actually complicated. From your query it is clear your brother has left behind three children with his former European wife. There are few issues to be considered in answering to your queries.

The Citizenship Act, 1951 and Bangladesh Citizenship Order, 1972 stated that who or any of whose parents or grandparents was born in the territory of Bangladesh and who has been permanently resident in Bangladesh on 25th March 1971 and continue it as his own domicile qualifies as a citizen of Bangladesh. Hence it seems clear that your brother had a Citizenship of Bangladesh till he surrenders his Bangladesh Citizenship for acquiring the citizenship of the concerned European country. We are not aware whether his children in Europe were born before or after surrendering of the Bangladesh citizenship. If the children were born before surrendering, they should qualify as Bangladesh citizen in the light of the aforesaid legal provisions. Though there are some formalities prescribed in the 1951 legislation.

On the contrary, if his children were born after surrendering of Bangladeshi citizenship, the children are unlikely to be considered as citizens of Bangladesh.

Now, the question arises whether a foreign citizen can inherit property in Bangladesh. It is very likely that foreign citizen can inherit property in Bangladesh as we have not found any express restriction under any legislation including the Transfer of Property Act and the Registration Act in selling or registering any land in favour of a foreign national. Therefore, it can be opined that unless there is specific restriction applicable for a particular category of land, the laws of Bangladesh do not prohibit acquisition and registration of property by foreign nationals. Therefore, it is more likely than not that there will be any difficulty in inheriting property as far as nationalities of the children are concerned.

Since your brother was a Muslim, Muslim law of inheritance will apply in the instant case. Accordingly, under Hadith (a source of Muslim Law) there was a religious bar in case of inheritance of property from a Muslim to a non-Muslim. If the children of your brother are practicing Islam, then such bar will not apply. On the other hand, if they are not followers of Islam (e.g. Christian) then the bar may apply. However, the above mentioned bar/exclusion was removed by the Act No. XXI of 1850. We have unfortunately found that the 1850 Act had been repealed and we could only manage to get its reference from the web. The Act of 1850 abolished all laws that were impediments towards inheritance of persons owing to conversion into another religion or caste. It is possible to argue that the children is issue (if they are not following Islam) has not converted from Islam and hence the Act shall not apply to them and hence the original exclusion applies and they are not entitled to inherit from their Muslim father. But, a technical argument can be raised against this proposition. This is because under the Muslim law any child whose one of the parents is a Muslim, born automatically as a Muslim and if that child continues practicing Islam then he will remain a Muslim.

But on the contrary, the child will no more remain a Muslim if he starts practicing other religion. In such a manner, it can be treated as a conversion (!) and the children may be brought within the purview of the 1850 Act. Though the 1850 Act itself does not exist anymore, this is my honest belief that the provisions must have been incorporated into any other subsequent legislation.

Accordingly, the religious difficulty related to inheriting property might have been overcome.

Hence, in the light of the aforesaid discussion, I am of the prima facie opinion that the children of your diseased brother living in Europe are also entitled to inherit the property of their father along with his second wife and two other children.

But, I must admit that this is a matter of thorough research and details analysis. I really wish I could spend more time on the matter to provide you with a clearer picture. You are strongly advised to consult with a lawyer professionally in this matter. Still, I hope that the above legal assessments will be helpful to you to understand the issues related to the ‘Inheritance’ and take the appropriate course of action.

For detailed query contact: omar@legalcounselbd.com.