Gift property but retain right to enjoy it: what changed in the new law

Bangladesh has enacted a new law on property transfer by amending a law enacted during the British era. This law creates the opportunity for a person to enjoy the property for life even after gifting it.

The "Transfer of Property (Amendment) Bill" was passed in Parliament on September 6 amid opposition from the opposition party. It will come into effect as law after receiving the President's assent.

In Parliament, the main opposition party, Jamaat-e-Islami's Ameer Shafiqur Rahman along with other party leaders, opposed this law. They raised objections stating that the law contradicts Islamic provisions.

Consequently, various questions have arisen in everyone's mind regarding this law. Why was the need for a new law felt? What changes have been brought about in the law? Does it really contradict any Islamic provision? Such questions are circulating in people's minds. Let's find the answers.

What was the existing law?

Where there is property, there is transfer. But to determine the procedure to be followed in the modern state system, the "Transfer of Property Act" was enacted in British India in 1882. It came into effect on July 1 of that year. Since then, and after India, Pakistan, and Bangladesh gained independence, property transfer has been governed by the same law. The sale and gifting (i.e., transfer) of all immovable and movable property is conducted under this Act.

According to this Act, voluntarily transferring any immovable or movable property to another person without any exchange is called 'Hiba' (gift). Through Hiba, a property owner can transfer property to his heirs or to others.

Why was the amendment needed?

While presenting the bill for the amended law, Law Minister Md. Asaduzzaman explained its rationale. He said that although the existing law contains provisions regarding the procedure for property transfer, there is no specific provision for gifting property while retaining the right of enjoyment (usufruct) during the donor's lifetime.

Informing about bringing amendments to the law, he said that donation with retention of lifelong usufructuary rights would be a distinct method of property transfer.

What amendments have been made?

According to the amended law, if someone gifts any property to their children or heirs, they will be able to enjoy it as long as they are alive. The same will apply if a husband or wife gifts property to each other regarding enjoyment. Furthermore, if the recipient dies during the donor's lifetime, the donor will retain the right to enjoy the property, and it will be transferred to the recipient's heirs according to the law.

Senior Supreme Court lawyer Manzil Morshed told Agamir Somoy, "Under the new law, there will be a form of Hiba (gift) where the person making the gift will retain the right of possession and enjoyment until their death; that right has also been provided."

Comparing it with the previous law, he said, "According to the previous Muslim law, if you made a Hiba, you had to give possession to the donee. Now, in the context of Bangladesh, it is observed that nowadays many parents transfer property to their children. After giving it away, in some cases, we see that the children no longer take care of their parents. They evict them from the house, since the children are now the owners. So these discussions have emerged in society, and considering this, the government has made this amendment."

Currently, although there are various legal procedures for gifting property, there was no provision allowing the donor to gift property while retaining the right of enjoyment during their lifetime. The government says that this opportunity has been ensured by amending the law.

For this purpose, two new sections are being added to the law. Thereby, gifting property while reserving the 'right of lifelong possession and enjoyment' has been recognized as a distinct method of transfer. This transfer will be executed through a registered deed.

As a result, the fear that one would lose everything upon gifting property will no longer exist.
He said, "The Hiba or gift according to Muslim law remains intact. That Hiba has not been abolished; anyone can still do that if they wish. However, considering the social context, the government has enacted a law regarding a new type of Hiba. If someone wants to do it according to Islam and Muslim law, they can. But they can also do it under the new law if they wish."

This lawyer believes that the amended law essentially provides protection for parents. He commented, "And protecting parents is, after all, an important provision of religion itself."

The government has also stated that this provision will apply equally to people of all faiths. As a result, it will not affect or create a conflicting situation with the common practice of gifting, Hiba under Muslim law, or any other recognized form of property transfer.

In response to the opposition's statements, Law Minister Asaduzzaman also said in Parliament, "Muslim law has not been touched here. The gift (property transfer) mentioned in this law is not Hiba. This law will not impede Hiba or any other form of property transfer. This bill has been brought considering social realities."

Elaborating further on the matter, Manzil Morshed said, "If someone gifts their property to another person and after gifting it, they are thrown out of the house, where will they go in their old age? I think this will further protect human rights and people's rights. If the government had done something like saying that no other form of Hiba except this type would be allowed, then you could have said it is against the Quran and Sunnah."

Is the previous provision remaining?

In Parliament, the Law Minister clearly stated that the previous provisions regarding Hiba or gifting remain, and a new method is being added to them.

Highlighting the matter, Manzil Morshed said, "The gifts or Hiba according to the 'Transfer of Property Act 1882' and what exists in Muslim law are still prevalent. The law specifies how Hiba can be done and to whom it can be done.

"Now, the law that the current government has enacted is somewhat upgraded. The Law Minister has also said that the provision for Hiba under our Muslim law has not been abolished. That provision still exists. To those who are saying it is against the Quran and Sunnah, I would say, please look at the Law Minister's statement in Parliament."

Commenting that the law amendment is logical, Manzil Morshed said, "I think this is extremely logical. Because it does not apply to everyone. But for those who become victims—those whose parents are not properly taken care of or are neglected after gifting property—if such a gift or Hiba is made, then in that case, the parents will retain the right as long as they are alive."