<%-- Page Title--%> Reader's Queries <%-- End Page Title--%>

January 11, 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: With reference to my previous query which was published on November 30, 2003 I would appreciate if you kindly let me know the followings" 1. I have three sisters and two niece form my deceased brother (aged 16 and 14). While distributing our assets left by my parents who should be their representative. (mother is now married to another person and children are living with the mother with all intension to grab their asset in her favour). 2. If we all agree to a mutual distribution how can we make it legalised without going to normal court case etc. and save time. 3. Who will look after the asset and money for my nieces and when can we hand them over their asset and money. 4. Where and how do we look for a good lawyer for our case 5. From you opinion how can we settle our distribution if every one comes to a decision and make it legalised so that nothing happens in future and in less time as most of us lives overseas and time is most important to us.

Sheikh Rahman, On E-mail.

Your Advocate: You have possibly noticed the 'correction' of your original reply published on the 14th day of December last. Be that as it may, the present queries follow as a sequel to the original. You have put five questions for my opinion. Let me address them one after another. The first one relates to the question of guardianship. The only relations who are legal guardians of the property of a minor are the father and the paternal grand father. No other relation is entitled to the guardianship of the property of a minor as of right. The legal guardian is competent to dispose of the property of the minor under certain circumstances or represent them as and when necessary. But the father, or the grand father of the minor may appoint the mother, brother, uncle or any other person as executor/executrix in which case they become legal guardians acquiring all the rights of a legal guardian including the power of alienation of the moveable or immovable property belonging to a minor. The court also may appoint any one of them as guardian of the property of a minor in which case he or she will have the powers of disposal of the property of the minor subject to permission of the court. In your case there is no surviving legal guardian of the property of your minor nieces. Therefore, the situation has necessitated appointment of one by the court. In such circumstances there are instances that mothers were appointed legal guardians of minors. Merely because their mother has taken second husband after her first husband's death she is not disentitled to be so appointed. The paramount consideration is the welfare of the minor. Any one can generally the nearest of kin do aspire for guardianship and it is the discretion of the court, in view of the wellbeing of the minor, to appoint the most competent from among them as per law.

As for the second question, it is not always imperative to go to court in such circumstances for distribution of the family property. There may well be a family arrangement in matters of division of the immovable property in presence of the legal guardian of the minors to be appointed by court. After settling the shares the deal may be documented by a deed of partition duly registered so as to avoid future complications.

The reply of your third question lies in the reply of the first question. A legal guardian of the property of a minor has power to look after the assets, goods and chattels of a minor. The fourth question relates to appointment of a lawyer. You have every right to appoint for your cause a lawyer of your own choice. The place and manner of looking for one also come within your exclusive domain. Once you decide I do not think you will feel any difficulty in finding out a good lawyer for you.

Finally the question of my opinion as to the way of settling things once for all leaving no scope for future complications. My opinion is latent in the question-wise replies given above. I hope you will feel addressed on this point by a plain reading through.