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When it comes to land or immovable property in Bangladesh, there are several ways to transfer them. There are ways such as will, heba or gift etc. Depending on the scenario, it is decided as to what kind of procedure is used for the transfer.
Heba is a term defined in the Shariah law or Islamic law which means gift. Heba is affected through a deed which needs to be registered with the proper authorities to ensure it’s effectiveness. Heba is usually done when one wants to gift their property to someone else. In Bangladesh, with a Muslim majority population, preference is given to the Shariah law with regards to transfer of property. With regards to other religions, their own religious customs are given preference for transfer of property.
Gift as per the Transfer of Property Act (1882) is the “transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the done”. Such transfer has to be affected during the lifetime of the donor, while he/she is in good sense of mind and is capable of the transfer. With regards to the transfer of a gift of immoveable property, the transfer will need to be affected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
With regards to the maintainability or suspension or revocation of the gift, the donor and donee may agree, that on taking place of any specified event which does not depend on the will of the donor, as in an event on which the donor does necessarily have control over, the gift may in that instance be suspended or revoked; but the gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, depending on the case.
Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not, burden by an obligation, the donee can take nothing by the gift unless he accepts it fully. Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous. Where a gift consists of the donor's whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.
As per the Registration Act (1908), it is mandatory to register a gift or heba deed. Every instrument of transfer required must be compulsorily registered under the Registraion Act. The Transfer instrument, in this case the deed affecting the gift must contain the particulars necessary to convey the intention of the involved parties. It should also in details include a complete and comprehensive description of the properties to be transferred and nature of the transaction i.e. the fact that it is indeed being transferred in the form of a gift. Photographs of all the executants and the recipients shall need to be pasted on the deed and the parties shall sign and put their left thumb impressions across their photographs in the deed. If any party is incapable of signing the deed, he/she shall not be required to sign and the thumb impressions shall suffice under such circumstances.
The deed of gift will need to be registered at the office of the Sub-Registrar. A fixed amount of fees would need to be paid for the registration process. Previously, as per Muslim Laws, the Heba could be affected by oral declaration. However, that process is not acceptable any more. In the practical realm of things, both the doner and the donee are usually required to be present during the registration of the deed at the office the Sub-Registrar, to ensure that both parties are in sound mind at the time of the transfer, since there are no consideration paid against the gift itself and unless specifically mentioned, the doner does extinguish his/her rights on the land. Executing a gift procedure requires certain checks before it is made, since it is a transfer of rights, legal checks to be made before hand to ensure that the gifted land is not in any way disputed or outside the ambit of the doner’s power to gift.