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March 28, 2004 

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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: We have two storied building built by our parents where we all brothers and sisters born and brought up. As time went on we educated and got job and started living in our work place except our second eldest brother who started business and was living with our parents in the same house. Our parents lived in that house till their death. When the question of division raised our second eldest brother claimed that since he is living in that house; so the division of our land property should be in such a way that he gets the building. It is to mention worthy that all the house hold chores and the building is purchased and built by our parents. Moreover he purchased all the portion of our other siblings' part which they are supposed to get as inheritor. But I would like to retain my parents' last memento. My questions are, A) How can our parental building could be shared or divided legally? B) Can he claim that building as he desires? C) How can I stay in my parental house while I need to visit my home town legally; since parental property has not yet been divided? D) Can any body wish to and get the lucrative portion of any parental land property even though it is divided by law? I seek your legal advice upon this circumstances. (PI. do not advice to contact with a civil law expert, I do not have that much money to retain a legal adviser.)
M Asadullah, 9/3, Kalabagan, Dhaka.

Your Advocate: Let me start with your last sentence. You have requested me not to advice you to approach any lawyer because you do not have enough means to engage one. Is it not like asking a doctor not to refer to medical tests as the patient has no money? You are now in a problem which calls for legal action for a redress. Legal actions can be taken only by a lawyer. If you really mean remedy there is no choice for you but to engage a lawyer. Well, if you have serious monetary constraint you need not feel helpless. Nowadays there are legal aid organisations both in Govt. and non-Govt. levels. If you are found fit from their point of view they will offer you legal aid totally free of costs.

As for your problem, I have gone through the same carefully. There are factual inconsistencies in your narrative enough to make it difficult for a lawyer to give a specific legal opinion For a specific advice or guideline from a lawyer there need be disclosures of necessary facts and materials. Your queries contain sentences with contradictory meanings that lead to confusion about the real state of facts. You have written that you want your share in the building left behind by your father. But your second eldest brother as he has been living in the building for a long time demands the entire building leaving for you and other heirs of your father the vacant land around. This suggests that your father died leaving the building unsold . Your fifth sentence i.e., "Moreover he purchased all the portion of our other siblings' entitled part which they are supposed to get as inheritor." contradicts the sense and makes things unclear as to the status of the building, that is, whether the building was already sold to your second eldest brother or not. If your brother can successfully show that your father had sold out the building to him you have nothing to inherit or retain as memento.

Taking cue from your words occurring later - ''since paternal property has not yet been divided" let me suppose that the building was not disposed of by your father in any manner and you have subsisting heritable interest in it. In that case the legal position is every co-sharer of a property is entitled to every inch of it. But as it is impracticable to divide land or building inch by inch law provides for realistic and equitable division of the same among the co-sharers. Your remedy lies in a suit for partition. The court is competent to pass a decree earmarking the shares of the co-sharers on legal and equitable basis. If it is practicable to effect partition of the building you can have your portion therein.

Corresponding Law Desk
Please send your mails, queries, and opinions to: Law Desk, The Daily Star 19 Karwan Bazar, Dhaka-1215; telephone 8124944, 8124955, 8124966; fax 8125155, 8126154; email <dslawdesk@yahoo.co.uk>

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