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Foreign rights for ancestral property!

Saturday, July 07, 2018

The Supreme Court, through a recent ruling principally accepted that foreign nationals too have succession rights to ancestral property in India. Against this background, Advocate Tanmay Ketkar takes a deeper look at the role of nationality in succession

Succession to ancestral property and buying a property are two most common ways to own a property. Since we do not have uniform civil code in place, we have different succession acts for different religions, e.g. Hindu succession act for Hindus, Sharia for Muslims, Indian succession act for Christians etc. All these succession acts have specific hierarchy or priority among heirs of deceased. Accordingly, heirs with top priority first succeed to property, and if there are no heirs in top priority category next in line will succeed.

The Supreme Court was faced with an important question about the succession of ancestral property. The question was whether nationality is condition precedent for succession? The matter of succession of property of a Christian initiated at lowest court eventually reached the apex court. The Indian heirs and Pakistani heirs of deceased were at the centre of the dispute. The Supreme Court after considering the priority rights of Pakistani heirs under provisions of section 24,25,26,33,35 and 47 of Indian succession act, and absence of any legal impediment in succession of non-national person to property, held in its decision dated 8th May 2018, that the Pakistani heirs shall have right and shall succeed to the ancestral property.

Breakthrough decision
Even though the current decision in delivered under Indian succession act, the apex court has principally accepted that foreign national can succeed to ancestral property in India. On backdrop of globalisation the decision is revolutionary and is going to have long term impact.

The youth today is going to different countries for education and thereafter for working as well. Sometimes the Indian nationals get the foreign citizenship. Such Indians and their generations then become foreign nationals. Till date it was assumed that such foreign nationals of Indian origin do not have any right in ancestral property. The assumption is now required to be scrapped.

This decision gave succession right to people of Indian origin on one hand and complicated the title investigation on the other. In our current system, it is a challenging task to trace all Indian heirs, let alone the foreign national heirs. Considering the decision hereinafter consent of all heirs including Indian and non-Indian will be required to transact in an ancestral property. All this exercise will further complicate the investigation of title and buying and selling of ancestral property.

Explore ‘power’ of attorney
Considering the decision there needs to be a solution convenient for Indian and foreign nationals, having share in ancestral property. Partition of property by metes and bounds, buying of share of other heirs, having power of attorney for daily business of property could be some of the solutions. Person residing abroad need not visit India to appoint a constituted attorney through power of attorney. It can be done through the embassy. A foreign national can sign and execute a power of attorney before the competent officer of embassy in country of his residence and send it to India. Such a power of attorney is valid for all legal purposes.

In nutshell, hereinafter all the living heirs of any nationality will possibly have the share in ancestral property situated in India, investigation of title of ancestral property must suitably contain investigation of foreign national heirs. And finally, to avoid last minute rush, it’s advisable to have a power of attorney in place ready for meeting any future event.

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