Publishes by The Daily Star on October 15, 2011 (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.
We are two brothers and a sister. I am the elder of the two brothers. I am 65 years old now. our mother died quite some years ago. Our father died later. He left us quite a sizable urban property in his name, while alive he gifted a portion of the said property by registered deed. I had my name mutated and have a separate khatian thereof and had taken possession of the land too.
Now my siblings want to divide the total property mention above as per shariah. My question is whether this apportionment of property will be with or without the land gifted to me by our father many yers before his death. I shall be much obliged if you would kindly give your expert opinion at your earliest convenience. Thanking you
4/6 jakir hossain road
Thank you for your e-mail. I understand that you and your siblings have inherited some properties from your parents. As you are Muslims, the properties will be distributed amongst you as per the provisions of the Muslim Law of succession. However, the question of succession arises regarding the properties that were owned by your father and/or your mother. The fact that your father has gifted you a property (‘heba’) during his lifetime will mean that the said property is not at all a subject matter of distribution amongst the successors. Since your father no longer owned the said property in issue at the time of his death, it did not pass on to the successors after his demise. Accordingly, you can safely hold that you and your siblings should distribute the rest of the properties amongst yourselves as per the ratio mentioned in the Muslim law of succession.
However, it is a matter of regret that with the hike of the property value in the recent years, the close family members have now become less accommodative. Hence, we witness lots of partition cases in the recent years. In case you fail to distribute the properties amongst yourselves by an amicable partition deed, the matter may ultimately resort to the court. In such a case, I do not rule out the possibility that one of your siblings may challenge the validity or the very existence of the heba. If such situation arises, you have to be very vigilant so that the heba can stand.
Having said the same, from a practical point of view, I would strongly advice all of your siblings to try to distribute the properties by amicable partition deed during your lifetime. The more the number of successors the more difficult it would be to reach a consensus and this may end up with an unhappy litigation within the family!
I hope the above shall help. Take care.
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