Your Advocate
This week Your Advocate is Barrister Tanjib-ul Alam Advocate, Supreme Court of Bangladesh. He is the head of the chamber of a renowned law firm, namely, 'Tanjib-ul Alam and Associates ',which has expertise mainly in commercial law, corporate law, admiralty, employment and labor law, land law, banking law, constitutional law, telecom law, energy law, Alternative Dispute Resolution, Intellectual Property Rights and in conducting litigations before courts of different hierarchies.
Query
My parents have a four storied building in Dhaka city. As owner, the documents (dolil) of this house was in my father and mother's name. I have one sister and one brother. My sister is older to me and married. My brother is younger to me and unmarried. After few years of my brother's birth my parents made a new documents (dolil) of their house. In the new documents (dolil) ownership of this house was written in the name of my father, mother and brother. Though my parents are alive, but my brother wants to sell the house now. I seek your legal opinion on the following questions:
(a) Can my brother sell the house alone by himself? (b) Who will be the owner of that house after my parents death? My brother alone or we three children of my parents together? (c) In the documents (dolil) of that house, as owner my name and my sister's name are not included. As a legitimate child of our parents, will we two sisters/ daughters not get any due share of that house? (d) According to muslim law, can parents deprive their legitimate daughter from the property?(e) If we are deprived, can we take any legal action against my brother?
Panna
Gulshan Avenue, Dhaka.
Response
Thank you for your query on the ownership of the land. It appears that your parents have allowed mutation of your brother's name along with them after your brother's birth. You have not mentioned on what basis this mutation was done. Assuming that your parent had gifted part of the property in favour of your brother and then mutated his name along with your parent, then your brother will be able to sell his portion of the property during the life-time of your parents.
If mutation had taken place without any oral gift or documentary evidence in favour of a gift, then your parent can take steps for cancellation of current mutation to delete the name of your brother. Mere mutation does not constitute transfer of ownership unless there is supporting instrument like evidence of gift, sale deed or evidence of succession from the recorded owner.
As a matter of general principle, your brother will not be able to sell the property owned by your parent during their life-time. If your parents die, your brother will become the owner of half of the property owned by your parents. The remaining half will be distributable amongst two of you i.e. two sisters.
With regard to your last question, whether your parents can deprive their two daughters, according to Muslim laws, a person cannot deprive his successors by testamentary instrument. He is allowed to dispose off one third of his property by testamentary means such as Will. However, a person is free to deal with his property in any manner he desires during his lifetime.
For detailed query contact: info@tanjibalam.com.
