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Legal guide explaining the rights and remedies for heirs in Bangladesh

Legal guide explaining the rights and remedies for heirs in Bangladesh when dealing with inherited property, particularly when one heir illegally occupies it.

 Legal Position of Heirs in Inherited Property

When a person dies without leaving a will, the ownership of his or her property automatically passes to all legal heirs under the relevant personal law, such as Muslim, Hindu, or Christian law of succession. From the very moment of death, each heir becomes a co-owner of the property. This means that all heirs hold the property jointly as tenants-in-common, and no single heir can claim exclusive ownership of the whole property. A person can only become the sole owner if there is a valid partition among the heirs—either through a mutual agreement or a decree of the civil court—or if other heirs legally transfer their shares to that person. Simply occupying the entire property alone, even for many years, does not cancel or extinguish the legal rights of the other heirs.

Illegal Forcible Possession by One Heir

If one heir:

• Takes possession of the entire property after the father’s death, and
• Excludes other heirs from entry or enjoyment,

That possession is:

• Not lawful, because he/she holds the property in a fiduciary capacity as co-owner.

1.  Mutation & Record Issues

• If the occupying heir has mutated the land solely in their own name, the excluded heirs can:
  • File objection / appeal in mutation proceedings before the Assistant Commissioner (Land), or
  • Ask the civil court in the partition / recovery suit to direct correction of the record.

Mutation does not create title; it only evidences possession.
But it is useful to keep records correct to avoid further fraud.

What are the Legal Remedies for an Excluded Heirs to recover possession of the inherited property:

There are two main pathways for an heir who has been illegally excluded from their inherited property: civil court actions and a newer, faster process under a specific land act.

Primary Legal Remedy: Suit for Partition

The most comprehensive and appropriate legal action in a dispute between co-heirs is a Suit for Partition.

• Purpose: A partition suit seeks a court decree to divide the joint inherited property among all the co-heirs according to their rightful shares under the applicable personal law (e.g., Muslim Faraiz). If one heir is occupying more than their share or excluding others, this suit compels a formal division.
• Outcome: The court determines the specific share of each heir and orders the property to be divided "by metes and bounds" (a physical demarcation of boundaries). This ensures that the plaintiff not only gains possession of their share but also receives a separate title, preventing future disputes. If a co-heir has been occupying land in excess of their share, they are legally bound to relinquish it for the partition.
• Legal Basis: While there isn't a single codified law for partition, the right is well-established through judicial precedent and supported by provisions in laws like the State Acquisition and Tenancy Act, 1950 (Section 143B), the Code of Civil Procedure, 1908, and the Partition Act, 1893.

Alternative and Supporting Legal Actions

1. Suit for Recovery of Possession Based on Title

A person entitled to the possession of specific immovable property can file a suit to recover it. This is governed by Section 8 of the Specific Relief Act, 1877.

• Application: This suit is appropriate when the heir's title to a specific share is clear, but they are being denied possession by the occupying co-heir.
• Requirement: The plaintiff must prove their title to the land through inheritance.

2. Suit for Declaration of Title

Often filed along with a suit for partition or recovery of possession, this action asks the court to formally declare the plaintiff's legal right and title to their share of the property, which strengthens the claim for possession.

3. Injunction

While the suit is pending, the excluded/deprived  heir may apply for:

• Temporary injunction (Order XXXIX CPC) to restrain the occupying heir from:
  • Selling, leasing or otherwise transferring the property,
  • Further changing the condition of the property, or
  • Causing obstruction to the plaintiff’s rights.

Procedural Steps and Required Documents

Before filing a suit, the following steps and documents are essential:

1. Legal Notice: It is advisable to first send a formal legal notice to the occupying heir, demanding the rightful share of the property. This demonstrates an attempt at an amicable settlement before litigation.
2. Essential Documents: To establish the claim in court, the plaintiff must gather crucial evidence, including:
   • Warishan Certificate (Succession Certificate): Issued by the local government (City Corporation, Pourashava, or Union Parishad) to certify the legal heirs of the deceased.
   • Proof of Ownership of the Deceased: The title deeds and land records (e.g., CS, SA, RS, BS Khatian) in the name of the original owner from whom the property was inherited.
   • Mutation (Namjari): Records showing the transfer of ownership in the land revenue office.
   • Updated Land Development Tax Receipts: Proof of payment of land tax (khajna).

Limitation Period for Filing Suit

The Limitation Act of 1908 sets the time limits for filing lawsuits. For a suit for recovery of possession of immovable property based on title, the general limitation period is 12 years. The countdown typically begins from the time the possession of the occupying heir becomes "adverse" to the heir who is out of possession.

Secondary Remedy: Criminal Action

While the primary remedy is civil, in cases involving forceful dispossession, criminal trespass, forgery of documents, or threats, a criminal case can be filed under the Penal Code, 1860. However, a criminal court's primary function is to punish the offender, not to determine property titles or grant possession. Therefore, a civil suit is necessary for a definitive and lasting resolution.

Criminal / Quasi-Criminal Remedies

If the occupation involves use of force, threats, forgery or violence, the aggrieved heir may also:

• File a General Diary (GD) or FIR with the local police under:
  • Section 441 / 447 of Penal Code – Criminal trespass,
  • Section 448 – House trespass,
  • Sections 420, 468, 471 – Cheating or forgery (if false documents used).

Quick and effective Remedies  under the new Land Crime Prevention & Remedy Act, 2023:

Under the Land Crime Prevention & Remedy Act, 2023 and Land Crime Prevention and Remedies Rules, 2024, a lawful owner can recover possession of illegally occupied land through a swift, summary procedure handled by an Executive Magistrate. 

This process is designed to be faster than traditional civil court litigation. Here's the procedure and the necessary documents:

Procedure for getting recovery Recovering Possession by a legal heir:

A person who has been illegally dispossessed of their land by anyone other than a competent court or authority can apply to the designated Executive Magistrate to have their possession restored. The process is as follows:

1. Filing the Application: The lawful owner must submit an application to the Executive Magistrate, following the format in Appendix-5, along with all required supporting documents.
2. Initial Scrutiny: The Magistrate will verify the submitted documents against their original or certified copies. If the application and documents are deemed proper, the process moves forward. If not, the application may be filed away, but the owner can re-apply later with the correct documents.
3. Notice and Investigation: If the application is accepted, the Magistrate will issue a notice to the opposing party (the illegal occupant) to appear and provide a written explanation within 15 working days. Simultaneously, the Magistrate will order a designated investigating officer to conduct an on-site inquiry and submit a report within 15 working days (extendable by another 15 days if necessary).
4. Hearing and Evidence Review: The Magistrate will conduct a hearing, taking testimony from the applicant, the opposing party, and any other relevant individuals. The Magistrate will review the evidence submitted by both parties and the investigator's report.
5. Order for Restoration of Possession: If the evidence proves that the applicant was in lawful possession and was illegally dispossessed, the Executive Magistrate will issue a final order to restore possession of the land to the applicant. The entire process, from application to order, is mandated to be completed within 45 working days.
6. Execution of the Order: If the illegal occupant fails to hand over possession within 15 days of the order, the Executive Magistrate can direct law enforcement to provide assistance to enforce the order and restore the owner to their property.

Required Evidence and Documents for filling application of recovery of possession by a washishan (Co-Owner):

The application for recovery of possession must be accompanied by documents that prove the applicant's lawful prior possession and title. The key documents, as mentioned in the rules and appendices, include:

• Proof of Ownership: The latest Record of Rights (Khatian) in the applicant's name.
• Proof of Identity: National ID card of the applicant.
• Land Tax Receipts: Updated Land Development Tax (Khajna) payment receipts.
• Chain of Ownership: Documents showing how the applicant acquired the title (e.g., registered deed, inheritance documents like a Warishan certificate).
• Property Details: A clear description of the property, including the schedule of land and a sketch map showing its location.
• Details of the Incident: A statement describing how and when the applicant was dispossessed.

Practical Steps for the Excluded Heirs

1. Gather evidence:
   • Death certificate of deceased father,
   • Warish certificate,
   • Proof of relationship (NID, birth certificates),
   • Land documents (deeds, khatian, mutation, rent receipts),
   • Evidence of exclusion / dispossession.
2. Issue Legal Notice:
   • Demand partition or return of possession.
3. File Suit:
   • Partition suit if the property is still joint; or
   • Suit for declaration and recovery of possession if ousted from defined share.
4. Seek Interim Injunction:
   • To protect property during litigation.
5. Consider Action under Land Crime Prevention Act:
   • Especially where there is force or fraud, file application for restoration of possession before the Executive Magistrate.
6. Parallel Criminal Complaint (if needed):
   • For trespass, threat, or forged documents.

Whether long-time exclusive possession of one co-owner can extinguish the right of other co-owners?

A co-heir’s long-time exclusive possession since the father’s death does not extinguish the other heirs’ rights. The excluded heir can:

1. Bring a Partition Suit (if still undivided) or a Suit for Declaration & Recovery of Possession (if ousted),
2. Seek injunctions to protect their rights pending the case,
3. If dispossession was by force or fraud, use Land Crime Prevention & Remedy Act 2023 for swift restoration, and
4. Pursue criminal action for trespass or forgery if applicable.

When a co-owner (e.g., a legal heir) can directly invoke the Land Crime Prevention & Remedy Act, 2023 in Bangladesh without having to go to the civil court first?

Nature of the Act

The Land Crime Prevention and Remedy Act, 2023 is a supplementary law designed to provide faster and more effective protection against land-related offences such as illegal dispossession, forged deeds, and unlawful occupation. It introduces criminal-type remedies and empowers executive authorities, like Executive Magistrates, to take quick action in restoring possession to rightful owners. However, under Section 3 of the Act, it is clearly stated that this law does not override existing civil remedies. The traditional legal routes—such as filing a partition suit, a declaration of title, or recovery of possession under the Civil Procedure Code and the Specific Relief Act—remain fully valid and available.

In simple terms, when the dispute concerns the determination of ownership or the specific shares of heirs, it must be resolved by the civil court. But when the issue involves wrongful dispossession or occupation of land through force, fraud, or without a lawful court order, the aggrieved owner or heir can directly seek swift restoration of possession through the procedures established under the 2023 Act.

Core Remedy under the Land Crime Prevention and Remedy Act, 2023 for Possession

Under the Land Crime Prevention and Remedy Act, 2023, the main protection available to a lawful owner or heir is the right to be safeguarded from illegal eviction or dispossession. Section 7 of the Act specifically prohibits the removal or eviction of any lawful owner or occupant except by a valid order of a competent court or authority. This ensures that no one can be deprived of their land through force or fraud.

According to Section 8, read together with the Land Offences Prevention and Remedy Rules, 2024, a person who has been unlawfully dispossessed or prevented from using their land can apply directly to the Executive Magistrate for recovery of possession. The applicant must first present basic evidence of ownership—such as inheritance papers, title deeds, or khatian records—to establish a prima facie claim. After reviewing the application, the Magistrate issues a notice to the person accused of illegal occupation and orders a field inquiry and hearing.

If the investigation and hearing confirm that the applicant was wrongfully dispossessed, the Magistrate issues an order for restoration of possession. Should the illegal occupant fail to comply with the order within fifteen days, the Magistrate can direct the police to enforce it and ensure that the rightful owner is placed back in possession. The entire process is designed to be quick and efficient, and as per the Rules, it must be completed within forty-five working days from the date of filing the application.

A person who has been forcibly dispossessed or unlawfully kept out of possession of his/her land can apply to the Executive Magistrate for restoration of possession.

3. When a Co-Owner May file case  Straight under the Act without filing any Civil Suit: 

If you as a legal are  deprived of possession of the inherited land, you can file case under  Land Crime Prevention & Remedy Act, 2023 for getting  Possession Land if:

•  You are a lawful owner / co-owner / heir of the land (e.g., as a son, daughter, spouse of the deceased owner);
• You have prima-facie proof of your ownership / heirship (Warish certificate, inheritance papers, previous khatian, etc.);
• You have been forcibly dispossessed or obstructed by another person (including another heir or outsider);
• The dispossession / obstruction occurred without any lawful court order or authority’s order.

⚠️ If there is a serious dispute about title or share that needs adjudication or if you want division of property by metes and bounds, you must go to the civil court (partition suit).

This article is part of The Justice Corner’s Legal Insights series — providing clear, updated explanations of Bangladesh’s laws for businesses and investors.

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