Across Bangladesh, a quiet crisis has been unfolding for decades. Elderly parents, trusting in filial duty, gift their homes and lands to their children only to find themselves dispossessed, evicted, or reduced to dependents in the very houses they built. The law offered no structured mechanism for a parent to transfer property while retaining the right to live in it, collect its rents, or enjoy its income for life.
In 2026, Bangladesh's Jatiya Sangsad enacted an amendment to the Transfer of Property Act 1882 (TPA) inserting Sections 122A and 122B of the Transfer of Property Act 1882, creating a statutory framework for gifts with lifetime usufruct retention. This is a Bangladeshi enactment. Both Bangladesh and India inherited the TPA 1882 from British colonial legislation, but the two countries have diverged substantially in their amendments. India has no equivalent provision.
Section 122A allows a donor to transfer the corpus of property to a donee while retaining enumerated usufruct rights for life. Section 122B governs irrevocability and the narrow grounds for revocation. Section 122A(4) contains a savings clause that expressly preserves Heba under Muslim personal law. The analysis that follows examines both provisions in statutory detail, assesses the classical Heba doctrine and the ayn-manafi distinction, and considers the practical implications for donors, donees, and practitioners.
Legislative Context: Why Bangladesh Amended the Transfer of Property Act in 2026
The social mischief that prompted this amendment is neither obscure nor debatable. Elderly donors who transferred immovable property to their children had no legally enforceable right to continue occupying or deriving income from that property. The existing TPA framework treated a completed gift as an absolute transfer. Once possession passed, the donor was a stranger to the property unless a contractual arrangement had been separately executed, and even then, enforcement was uncertain.
Bangladesh's legislative trajectory with the TPA has been independent since 1971. The 2026 amendment is the most significant reform to the gift provisions. India addressed elderly vulnerability through the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which empowers tribunals to cancel transfers but creates no usufruct retention mechanism. That statute is remedial, not structural.
The parliamentary process was contentious. Opposition came principally from Hefazat-e-Islam and Jamaat-e-Islami, both fearing that the amendment could circumvent Islamic inheritance rules (faraiz) by enabling parents to distribute property to favoured heirs during their lifetime, bypassing Quranic distribution ratios. The government maintained that the amendment created an optional, secular mechanism and did not touch personal law. This tension between codified statute and uncodified personal law runs through the entire analysis.
Indian practitioners encountering clients with Bangladesh property must understand that no equivalent statutory route exists in India. The closest Indian mechanism is the life-interest clause drafted into a gift deed, a contractual arrangement without a statutorily defined usufruct right or its own revocation regime.
Section 122A Explained: Gift with Lifetime Usufruct Retention
Section 122A of the Transfer of Property Act 1882 limits its application to specified relationships: parent and child, grandparent and grandchild, and spouses. The legislature targeted the relationships where donor vulnerability is greatest and betrayal of trust most acute. A parent who gifts property to a child and is then denied access suffers a harm qualitatively different from a commercial donor-donee dispute. By restricting eligibility, the legislature avoided creating a general statutory usufruct regime that could complicate commercial transactions.
The mechanism operates through a corpus-usufruct split. The corpus (ownership and title) transfers to the donee immediately upon registration of the gift deed. The donor retains enumerated usufruct rights: the right to occupy the property, to collect rents from tenants, and to receive income generated by the property. The usufruct is a real right, not merely a personal licence. It attaches to the property and binds successors in title. This distinction matters enormously. A personal licence can be revoked; a real right runs with the land.
Registration is mandatory under the Registration Act. The gift deed must be registered at the Sub-Registrar's office with both parties present or duly authorized. This stands in deliberate contrast to Heba under Muslim personal law, which requires no registration and no writing. The formality requirement under Section 122A serves an evidentiary purpose: it creates an unambiguous, publicly recorded instrument defining the donor's retained rights with specificity.
The provision addresses the risk of the donee predeceasing the donor. If the donee dies before the donor, the donee's heirs inherit the corpus, but the donor's usufruct survives. Without this protection, the donee's heirs, who may be strangers or hostile to the donor, could extinguish the usufruct. The statute forecloses this possibility.
Automatic extinguishment operates on the donor's death. The usufruct terminates without further formalities. Full ownership consolidates in the donee or the donee's heirs. No further deed, court order, or additional registration is required.
Sub-section (4) is pivotal. It reads: "This section does not restrict or affect ordinary gifts, hiba under Muslim law or any other legally recognised method of property transfer." Section 122A creates a parallel statutory route for gifts with usufruct retention. It does not replace, restrict, or modify existing transfer mechanisms, including Heba. A Muslim donor in Bangladesh may choose either route. The two coexist.
Section 122B Explained: Irrevocability, Revocation Grounds, and Judicial Oversight
The default rule under Section 122B is irrevocability. A registered gift under Section 122A cannot be revoked unilaterally by the donor. This is stated independently of Section 126 TPA, which governs the general revocability of gifts and permits revocation where the gift deed itself contains a revocation condition. Section 122B is a self-contained regime.
The first exception permits revocation by mutual consent. Both donor and donee must agree, and their agreement must be embodied in a registered deed specifying the ground of genuine necessity: financial hardship, medical need, familial crisis, or educational requirement. The legislature required not just agreement but documented justification, presumably to prevent coerced revocations.
The second exception permits judicial intervention where the donee's consent genuinely cannot be obtained. This covers incapacity, disappearance, or unreasonable refusal. The court must be independently satisfied that genuine necessity exists and that the donee's consent genuinely could not be obtained. This is not a rubber-stamp jurisdiction; the court exercises a substantive evaluative function.
Section 126 TPA allows a gift to contain a revocation condition, and the donor may revoke by exercising that reserved right. Section 122B is narrower: it does not permit the donor to reserve a unilateral right of revocation in the gift deed itself.
Under Hanafi Muslim personal law, Heba is generally revocable before delivery of possession (qabza). After delivery, revocability is limited by several bars, including the donor-donee relationship (gifts to close relatives within prohibited degrees become irrevocable on delivery). Section 122B is stricter than Heba post-registration: once the Section 122A gift is registered, revocation requires either mutual consent with documented genuine necessity or a court order. No unilateral revocation is possible.
Heba Under Muslim Personal Law: Classical Doctrine and the Ayn-Manafi Distinction
In both India and Bangladesh, Heba is governed by Muslim personal law, not the TPA. In India, Section 129 TPA expressly excludes gifts made by Muslims from Chapter VII. Section 2 TPA contains a broader savings clause preserving rules of Mohammedan law inconsistent with TPA provisions. In Bangladesh, the same principle applies.
The three essentials of a valid Heba are well settled. First, Ijab: a declaration by the donor of intention to gift. Second, Qabul: acceptance by the donee. Third, Qabza: delivery of possession. No registration or writing is required. As Mulla states in the Principles of Mahomedan Law, Section 138, Heba is "a transfer of property, made immediately and without any exchange." This informality is a defining characteristic that distinguishes Heba from the formality-heavy regime of Section 122A.
The ayn-manafi distinction is the critical doctrinal key to understanding the relationship between Heba and Section 122A. Muslim jurisprudence strictly distinguishes between the corpus (ayn) and its usufruct (manafi). Over the corpus, only absolute dominion is recognized: heritable and unrestricted in time. Any condition attached to a gift of the corpus inconsistent with absolute dominion is rejected as repugnant. But interests limited in time can be created in the usufruct.
The foundational authority is the Privy Council dictum: "Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests."
A Hiba that transfers the corpus unconditionally while the donor retains the usufruct for life is valid under Muslim law. The condition operates on the manafi, not the ayn. The donee receives absolute dominion over the corpus; the donor's retained interest is limited to the usufruct and limited in time to the donor's lifetime. The Supreme Court of India, in Dharmrao Sharanappa Shabadi v. Syeda Arifa Parveen (2025), reaffirmed: "Possession is the soul of a valid Hiba."
Heba, Heba-bil-Iwaz, and Heba-ba-Shart-ul-Iwaz: Distinctions and Interaction with the 2026 Amendment
Heba in its simple form is a gratuitous transfer requiring Ijab, Qabul, and Qabza, with no consideration. Under Hanafi law, it is revocable before delivery of possession, subject to exceptions where the donor and donee are within prohibited degrees of relationship. After delivery, revocability is limited.
Heba-bil-Iwaz is a gift with immediate exchange. The donee immediately pays iwaz (consideration) to the donor. Once paid, the transaction acquires the character of a sale and becomes irrevocable. Registration is required because the transaction is essentially a sale. The leading authority is Khajooroonissa v. Roushan Jehan, which established that Heba-bil-Iwaz, once completed by payment of iwaz, is treated as a sale for all legal purposes.
Heba-ba-Shart-ul-Iwaz is a gift with a stipulation for future return. The donor makes the gift with a condition that the donee will pay iwaz at some future date. The gift is revocable until the iwaz is actually paid. Once paid, it becomes irrevocable and is treated as a sale.
| Type | Consideration | Revocability | Registration | Character |
|---|---|---|---|---|
| Heba | None | Revocable before delivery | Not required | Pure gift |
| Heba-bil-Iwaz | Immediate | Irrevocable once iwaz paid | Required | Sale character |
| Heba-ba-Shart-ul-Iwaz | Stipulated future | Revocable until iwaz paid | Required once complete | Sale character once complete |
Section 122A(4)'s savings clause means none of these forms is displaced by the amendment. For simple Heba, the Section 122A usufruct retention structure mirrors what Muslim law already permits under the ayn-manafi doctrine: the corpus transfers to the donee, the usufruct is retained by the donor. The statutory route codifies this structure with registration and formality. For Heba-bil-Iwaz and Heba-ba-Shart-ul-Iwaz, both involve consideration and shade into sale rather than gift. Practitioners advising clients on these compound instruments should not conflate them with the Section 122A regime.
Does Section 122A Affect Heba? Savings Clause, Structural Alignment, and the Religious Controversy
The apparent conflict between Sections 122A and 122B of the Transfer of Property Act 1882 and Heba is largely illusory. This is the finding that close analysis reveals, and that the religious-political controversy has obscured.
On its face, Section 122A allows a donor to gift property while retaining usufruct. This might appear to conflict with Heba's requirement of unconditional transfer and qabza. If the donor retains the usufruct, has the donor truly delivered possession? These questions are reasonable but ultimately misplaced.
The conflict is illusory for three reasons. First, the savings clause. Section 122A(4) expressly states that the section "does not restrict or affect ordinary gifts, hiba under Muslim law or any other legally recognised method of property transfer." Muslims choose between the statutory route and traditional Heba. Section 122A is elective, not mandatory.
Second, structural alignment with the ayn-manafi doctrine. Section 122A's corpus-transfers-but-usufruct-retained structure is exactly what Muslim law already permits under the Privy Council rule. The statutory structure does not innovate on the substance of what is permissible. It codifies an existing legal possibility with formality and registration.
Third, optionality. Section 122A creates an additional option. It imposes nothing on any donor, Muslim or non-Muslim.
The religious-political controversy, however, is real and consequential even if the legal conflict is not. Hefazat-e-Islam and Jamaat-e-Islami objected that a parent could use Section 122A to give property to a favoured child, bypassing the Quranic 2:1 inheritance ratio, while retaining usufruct for life. The counter-argument: this same circumvention is possible through ordinary gift, sale, or traditional Heba. Section 122A does not create a new mischief; it codifies an existing option with more documentary formality.
The Bangladesh Law Minister addressed this during the 2026 parliamentary debate: "The reform does not touch inheritance law at all. The statute explicitly maintains that traditional hiba and existing personal laws remain fully operational."
Section 122A is a complementary provision, not a competing one. For non-Muslim donors, it provides statutory clarity previously achievable only through imprecise life-interest drafting. For Muslim donors, it adds an optional, registered, irrevocable alternative without displacing a single rule of Heba.
Practical Implications: Drafting, Registration, Banking Complications, and Post-Death Procedures
Draft the gift deed under Section 122A with precision. Specify four elements: (1) the property, described with particularity sufficient to identify the corpus; (2) the usufruct rights retained, enumerated specifically (occupation, rents, income, or any combination); (3) the relationship between donor and donee, confirming statutory eligibility; and (4) an express acknowledgment that the gift is made under Section 122A TPA. Omitting any element risks challenge to validity.
Register the deed at the Sub-Registrar's office. Both parties must attend or provide duly executed powers of attorney. Stamp duty implications are uncertain. Confirm with the relevant revenue authority whether usufruct retention affects valuation for stamp duty purposes. Expect stamp duty to be assessed on the full value of the corpus, not the discounted value of ownership subject to usufruct, though this remains to be settled.
Banking complications are significant and underappreciated. The donee holds title, but the donor holds the usufruct. A mortgagee cannot obtain vacant possession on default during the donor's lifetime. The usufruct binds successors in title, reducing collateral value significantly. Lenders will be cautious about accepting mortgages on Section 122A properties. Ensure mutation records reflect the split: donee as owner, donor as usufructuary.
Post-donor-death procedure is simple. The usufruct extinguishes automatically. The donee or donee's heirs apply for mutation to remove the usufruct notation, updating the record to reflect unencumbered ownership. If the donee predeceases the donor, a succession certificate or probate may be needed to establish the heirs' title to the corpus.
Indian practitioners: this framework does not exist in India. Do not assume Indian TPA provisions apply to property situated in Bangladesh.