Why the new property law may be counterproductive

Recently, the parliament passed the Transfer of Property (Amendment) Act, 2026, introducing provisions on usufruct that have prompted a debate over their implications under Islamic law. In our view, the amendment is narrower and more technical than the law minister’s earlier description of it as a safety net for parents who transfer property while retaining a lifetime right of use. Presented as a protection against future abuse and neglect, however, it may give elderly donors a false sense of security: it allows them to retain lifetime use while surrendering ownership, without creating a corresponding framework to protect them against coercion, neglect, or financial exploitation. 

Section 122A allows parents, grandparents, spouses, children, and grandchildren to gift property within those relationships while reserving a lifetime right to use it; immovable property must be registered. Section 122B makes such a registered gift irrevocable, except by mutual consent expressed in a registered deed or, in specified circumstances, by order of a district judge.

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However, the Act’s reach is limited as Section 122A(4) makes it clear that this constitutes an additional mode of transfer without replacing ordinary gifts, Heba or other recognised methods. A classical Heba ordinarily requires declaration, acceptance, and delivery of possession, while retaining lifetime possession or enjoyment raises distinct questions under Islamic law. The amendment does not resolve those questions; statutory validity under Section 122A should, therefore, not be confused with religious-law validity.

The provision may also affect Islamic rules of succession. A Muslim father with daughters but no son could transfer property to them during his lifetime while retaining its use, thereby keeping it outside his eventual estate and potentially excluding a brother or other residuary heir who might otherwise inherit. Such a lifetime gift may legitimately reflect care, need, or fairness, but legal power and Islamic ethical propriety are not always identical, particularly when a transfer is intended to circumvent the Quranic scheme of succession.

More importantly, the reassurance offered by a reserved usufruct may be misleading. Ownership passes immediately, and the elderly donor retains only the reserved right of use or enjoyment. A parent may think the property is still effectively theirs, without appreciating that they may no longer be free to sell, mortgage, or otherwise access its capital value to fund medical treatment or long-term care. Age, illness, dependence, poor legal literacy, or pressure from a favoured child could make such a gap in understanding easier to exploit. A device presented as protection may, therefore, become an instrument of financial abuse.

The revocation rules are also narrower than initially suggested. Section 122B does not expressly address the law minister’s example of a competent child refusing a sale needed for medical treatment. A parent seeking relief must still approach a district judge with notice and a hearing. That may be difficult in a system where, according to Supreme Court data cited by Bangladesh Sangbad Sangstha, 4,742,731 cases were pending as of December 31, 2025.

And what if the donor develops dementia, suffers a stroke, becomes bedridden, or cannot instruct a lawyer? The amendment provides no elder-specific mechanism to manage the usufruct, obtain urgent medical funds, or intervene where the caregiver controlling the parent’s papers, money, and access is the suspected abuser. Nor does it adequately address the transfer itself. Existing law may allow a gift procured by fraud, coercion, or undue influence to be challenged, but an elderly victim must still recognise the wrongdoing, obtain evidence, and initiate proceedings. There is no elder-specific presumption of undue influence where a child or caregiver is in a position of dominance; no offence of financial exploitation; and no rapid mechanism to restrain dealings or restore possession and income.

What Bangladesh needs is a comprehensive elder-abuse law covering physical and emotional abuse, abandonment, neglect, coercive control, and financial exploitation by relatives, caregivers, or anyone in a position of trust. A transfer obtained through pressure, deception, abuse of confidence, or such undue influence should be quickly voidable, while deliberate exploitation should be punishable. The law should authorise emergency protection orders, temporary restraints on dealings, recovery of property or income, access to the older person, and an independent representative where capacity is impaired or no safe family member can act.

Protection must not become paternalism. A competent older person remains free to disburse an unequal gift. For a substantial intra-family transfer, however, the law should require evidence that the donor acted freely, understood the implications of transferring title and retaining usufruct, possessed decision-making capacity, and received independent legal advice outside the donee’s control. The registrar should interview the donor privately and record that the donor understands the legal and practical consequences of the transfer.

Where a transfer is made in expectation of receiving care, the donee should not receive the benefit without performing the corresponding duties. The donee should remain responsible for the donor’s residence, treatment, maintenance, and dignity, with the property’s income used first for the donor where appropriate. Section 23 of India’s Maintenance and Welfare of Parents and Senior Citizens Act, 2007 illustrates the principle: failure to meet a transfer’s condition of providing basic amenities and physical needs can justify setting it aside.

Trust-based arrangements offer another possibility. Canada’s alter ego trust, though developed in a different legal and tax environment, allows a settlor aged 65 or above to remain the sole lifetime beneficiary while postponing successors’ beneficial enjoyment until death. Its underlying principle deserves consideration in Bangladesh: protecting an older person’s lifetime benefits need not require immediate practical dependence on the person who will ultimately receive the property.

The Maintenance of Parents Act, 2013 should also be strengthened. Enforcement must be available through social welfare officers, legal aid bodies, an elder-protection authority, or a specialised tribunal, with standing for a trusted relative or authorised organisation when the parent cannot complain personally. Interim maintenance, medical expenses, residence orders, and protection against retaliation should be available promptly. The duty of care must continue even where the child has received the parent’s property.

Sections 122A and 122B of the Transfer of Property (Amendment) Act, 2026 may assist informed owners who deliberately wish to transfer title while retaining lifetime use. But a reserved right of enjoyment is not the same thing as protection. The amendment does not adequately address risks of pressure before the deed, abandonment or exploitation after it, loss of capacity, or the donor’s need to unlock the capital value of property to finance their treatment and care. Nor does a property-based solution reach older Bangladeshis who have no substantial property to transfer. Elder abuse is ultimately a problem of vulnerability, dependency, capacity, care, and access to effective remedies. Property law may form part of the answer, but it cannot carry that burden alone.

Barrister Kazi Tamrin Rashed is lecturer in the Department of Law at North South University and an advocate of the Supreme Court of Bangladesh.

Ragib Shahriar is a final-year law student at North South University.

Views expressed in this article are the author's own. 

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