The Global Property Guide looks at inheritance from two angles: taxation, and what inheritance laws apply to foreigners leaving property in In: what restrictions there are and whether making a will is advisable.
Technically, any individual is entitled to receive, including by inheritance, property situated in India regardless of his residency or citizenship. But Ė and here is the problem - the transfer of ownership, and the holding of the property, must adhere to the Foreign Exchange Management Act (FEMA).
According to FEMA Regulation 2000, a nonresident who is a citizen of India can only transfer properties to (a) a resident of India, (b) a citizen but not a resident, and (c) a non-resident of Indian origin. Nonresidents of Indian origin (i.e., not citizens) may in contrast only transfer properties to residents. Non-Indians may only receive Indian properties if they are residents of India.
No inheritance or gift tax is levied in India. However, the recipient of assets is subject to wealth tax.†
Net wealth tax is levied at 1% on a taxpayerís net assets if it exceeds INR3 million (US$56,430). Net assets are computed by deducting debts relating to the properties against their aggregate value. The income tax authorities are generally responsible for assessing the property value. Self assessment is also possible but there are interests and penalties for defaults.
Deepti Anurag and Jayeeta Sengupta of
FoxMandal Little Solicitors & Advocates
The Constitution of India provides freedom of conscience (i.e., religious faith as a fundamental right). Family law has always been a part of religious law. This means that no uniform code for civil law exists in India, even though it has been put into the Directive Principles of State Policy of the Constitution of India. Since laws of marriage and succession are the most intricate amongst the religious laws, inheritance issues in India are very complicated.
The main laws pertaining to issues related to succession and inheritance by foreigners in India are: The Foreignersí Act (provision for the government to make orders restricting or prohibiting rights of a foreign citizen) and The Foreign Exchange and Management Act (Acquisition and Transfer of Immovable Property in India).
Different religious groups in India subscribe to different laws. Hindus have their own codified law (Hindu Succession Act) as well as a part uncodified, Muslims have their own textual law of inheritance (Islamic Law on Succession), Parsees come under the Indian Succession Act, as do Christians, as well as others (e.g. spouses with different religions married under The Indian Marriage Act).
The personal law to which the deceased person subscribed applies to matters of inheritance in India. This law may be the textual law of the deceasedís religion, or the codified law of the nation to which the deceased belonged to at the time of death.
If a foreign citizen inherits from a deceased Indian citizen, then the law prescribed for the appropriate Indian religious group applies.
If the deceased was a foreign citizen, then the personal law of his religion or nationality applies. In the instance where the law of the nation to which the deceased foreigner belonged to at the time of death refers the inheritance issues back to India (i.e. place where his/her property is situated), then the applicable law which governs the inheritance of the deceased in India takes precedence.
When problems can arise?
With regard to the complexity and diversity of the applicable laws in India, questions of inheritance by foreign nationals will arise mainly from the following situations:
Inheritance issues are dealt with by the principal civil court of original jurisdiction (district judgeís court) where the property lies, or where the deceased used to live in India before death, or before departing the country.
If the property lies in the jurisdiction of more than one civil court, the High Court (HC) may transfer the matter to one civil court. From there, up to two appeals may be referred to the HC. In special circumstance a Special Leave Petition (SLP) may be allowed for the matter to be considered in the Honíble Supreme Court of India, the Apex Court, but only after the second appeal is exhausted, and if special questions of law are involved.
The local laws of the State in which the property is situated determines the stamp duty and court fees.
Disputes relating to succession and inheritance may take as much time as any other civil suit, which varies on a case to case basis, depending on the complexities of the claims, the nature of interpretation of the law, and the number of appeals. Original court requires 4 to 7 years and each appeal may take 2 to 3 years. In exceptional cases, inheritance proceedings in India may not be concluded for two decades.
Except for the Muslim laws of inheritance, which require at least 2/3 of the deceasedís property to be inherited by the line of succession and allow up to 1/3 to be settled by testamentary succession, Indiaís other inheritance laws do not have any reserved portion, i.e. the entire property may be subject to testamentary succession or intestate succession if there is no will.
The following is an outline of the orders of succession and the shares of inheritance for heirs in different groups in India:
Class I heirs of a male Hindu who shall simultaneously inherit are:
If a predeceased son of this predeceased son leaves a widow, the living sons and living daughters each shall equally share the share of the predeceased son of the predeceased son who has one share with living sons and daughters. Predeceased daughter (1 share) to be equally shared by sons and daughters of the predeceased daughter.
In case there is none in the class I schedule, the property shall go to the class II based order. The earlier order is preferred over the later, (i.e. if an earlier order is present, the later orders would not inherit):
Order I: Father (whole in the absence of anybody in class I)
Order II: Sonís daughterís son; sonís daughterís daughter, Brother, Sister ( all in equal proportion)
Order III: Daughterís sonís son, daughterís sonís daughter, daughterís daughterís son, daughterís daughterís daughter (equally)
Order IV: Brotherís son, brotherís daughter, sisterís son and sisterís daughter
Order V: Fatherís father, Fatherís mother (equally)
Order VI: Fatherís widow, brotherís widow
Order VII: Fatherís brother, Fatherís sister
Order VIII: Motherís father, motherís mother
Order IX: Motherís brother, motherís sister
Entry A: Sons (1 share each), Daughters (1 share each), husband (1 share), son and daughter of predeceased son (equally together 1 share), son and daughter of predeceased daughter (equally together I share).
Entry B: Heirs of Husband:
Entry C: Father and Mother
Entry D: Fatherís heir
Entry E: Heirís of the mother
Muslim communities in India predominantly follow Hanafi law, but in some locations follow Shia law. The share of each heir must be ascertained based on individual cases.
The following are four classes of heirs and successors, with provision of exclusion:
Where lineal descendant is present:
With no lineal descendant:
The statute provides detail rules of distribution on case to case basis.
Rules regarding the administration of testamentary succession are stipulated in The Indian Succession Act. Procedures are laid down for administering the testamentary succession of all religious groups, except Muslims. Muslims can make a testamentary succession under their own religious law; however, a Muslim cannot transfer more than 1/3. of their property by testamentary succession.
The Indian Succession Act provides for every person of sound mind, not being a minor, to dispose of his/her property by will. It is mandatory that the testator possesses the capacity to make such a will.
A foreigner who owns immovable property in India should preferably make a will, because intestate succession can take a long time for settlement. A local will made in India can be granted probate comparatively easily. The foreign owner of immovable property in India however, is not required to make will in India. A will made outside India is also valid.
A will must be in writing, signed by the testator (or by someone at the discretion of and in the presence of the testator). The will must be attested by two or more witnesses.
A will need not be in legal language, and it is not necessary to use technical terms. At the time of interpretation of the will, regard must be taken, not only to the actual words used, but also to the evident intention of the testator. It is therefore essential that the testator makes very clear his/her intention to dispose of property in a will.
Probate may be granted on a copy or draft of a will which has been lost or mislaid since the death of the testator, or if the same has been lost in an accident.
Most foreign citizens, if resident in India on work permit, business visa, on declaration of residency, or with prior approval, may acquire property in India by purchase or inheritance; however, citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal or Bhutan cannot acquire or transfer immovable property in India, other than by a lease not exceeding five years.
Under Islamic law, the following persons are disqualified from inheritance: (i) non-Muslims (b) murderers (c) children in the womb (d) illegitimate children (e) daughters, by custom (f) insane or unchaste persons (g) step parents (h) childless widows, by custom and (i) absent heirs.
Under Hindu law, the following persons are disqualified from inheritance: (a) the widow of a pre-deceased son, or sonís son, who remarried during the life time of the deceased (b) the children of a Hindu convert to a non-Hindu religion (c) a murderer.
There is little restriction on the gifts of any property during the lifetime of the owner. Owners have full power of disposing of their own property in India by inter vivos. Such gifts however may be challenged in the court of law on certain grounds such as the disqualification of the donor due to mental instability. The decision of the courts on this issue would be on a case to case basis.
A foreigner who resides outside India, wanting to acquire property in the permitted area (like Goa Sea Resort, which is specially notified for this purpose) requires prior approval of the Reserve Bank of India (RBI). Foreigners of non-Indian origin who have acquired immovable property in India with the specific approval of the RBI cannot transfer such property without prior permission of the RBI.
No person resident outside India can transfer any immovable property located in India, except when specifically permitted under the regulations. RBI in special circumstances may allow such transfer.
No agricultural land can be acquired by a foreign national or any person resident outside India
Each State Government may impose additional restrictions. For example, a person can not acquire land in J&K, North Eastern States, unless certain conditions are satisfied under the State laws.
As a general principle, unless there is an argument of equitable ownership, the Court looks at the title deeds to determine the owners of real property in India. A registered title deed, however, is not always the conclusive proof of ownership of property in India, nor is the land registration record.
Ownership of Hindu undivided family property is complex. In the Mitakshara system of HUF property, ownership passes by birth. If the deceasedís ownership is in HUF property, difficult issues of transfer of ownership are involved.
According to the Indian Succession Act, the wife acquires the domicile of her husband, but no person, by marriage, acquires an interest in the property of his/her spouse. If a person whose domicile is not in India marries in India a person domiciled in India, neither party acquires by marriage any rights in respect of the property of the other spouse, other than those agreed in a pre-marital settlement. Therefore, unless the law to which the deceased subscribed to at the time of his/her death disinherits anyone on grounds of religious conversion, or marrying in a different religion, then there is no discrimination.
There are local laws in some states requiring the joint ownership of properties to be registered if acquired by the husband but not by the wife. In Hindu law, the husbandís property also belongs to the wife but not vice versa.
Properties may be inherited by a child below the age of majority.
Properties may be inherited by a child through a natural guardian, that is a father, or in his absence, a mother. In the absence of parents, there may be a Ďguardian in factí such as an elder brother, uncle etc., who is recognized by the court. In the absence of a guardian in fact, the court may appoint a guardian in law. When the court appoints the legal guardian the property is managed by Court of Wards. In any such cases the property of a minor can not be alienated with out the prior permission of the court.†††
#1 DEE | April 07, 2010
Hi, I would like to know what rights I have to my grandfathers property and possesions in India. See, my grandfather passed 2 months ago and his only living son (my father) passed back in 2004. As my father son, do I have any rights with regards to my granfathers property/possessions in India? (me being a UK born Hindu)
Thanks in advance.
#2 MANJU GUPTA | April 12, 2010
there is flat in delhi. first name is of my mother-in -law and second name is of my husband.my husband has four more brothers.one has died leaving his wife and 2 children.my question is after my mother-in law's death my husband will become the sole owner of the flat or my husband's brother can claim their share in the flat?
#3 MOHAMED SIDDIQ | April 13, 2010
My father a former shopkeeper in Singapore (born in India)has a family of 5 children in Singapore. He remarried in India (Nileshwar, Kasaragod) and has a wife and 2 children. He left an estate of land and properties and bank accounts estimated at 5 Crore Rupees.
Can the Singapore children claim the inheritance? Looking for advocates who can help us in singapore - firstname.lastname@example.org
#4 ROHIT CHAUBEY | April 25, 2010
My father has two marriage and died in 2000(hindu family). we are three brother (1+2). my elder brother is from step mother and has got all money of my father. He is only one son and we are two brother from second one. Now my elder step brother wants to file a case and want to divide properties among mother equally. as we are two brother so definitely he will get more share . Can it possible to get properties and cash divide among brother equally ? will my step brother won the case if his mother support her ? kindly reply?
#5 SHASHIKALA | April 26, 2010
I am 49 years old widow.I am from Christian background. my mother died when i was 8 years old.It was illedal death. After that i grown up in my Father's place. Then mother's Father decided decided not to give any portion of his property to me. And he devided his property to his 3 existing children (1 son & 3 daughters).My grand father died in 1979. Registered documents available with the existing childen (first daughter & daughter in law). But now first daughter(she don't have children), daughter in law (Son died on 2007)(with one son who is taking care of the property) are surviving at present. I have no connection with them till now from the day of my mother's death. But Now i want to claim some property.
Can i get some portion if i put the case. I dont have my mother's death certificate & Birth Certificate with me. Can i claim the property.
#6 J.A.MIRANDA | April 27, 2010
Kindly advice me for our share of property of my greatgrand father.Leagly can we have our share.For now my uncle has accuired the property by hook or crook since the last 40 years in Mumbai.we are christians.HOW do we start the case.
#7 KRIS | April 29, 2010
hi i am an Australian citizen and Indian dual citizen. i have agircutlural lands under my name in india before i was australian citizen.I want to know if i can buy? if my parents can tranfer agricultural land incase if they wish to is there any way they can do it(will or something)?i am also planning to sell my lands in the near future as i want to settle in australia. who can provide me the best advise and a link to read plz?
#8 P. K. WALIA | May 11, 2010
I am 46 year old Hindu male having 2 daughters. I would like to will my property / assets among them equally, but also want to ensure that the shares of my daughters are not forcefully sold off by their in-laws or husbands. How can I ensure this in my will? Also whenever they have a need of money it can be easily assessable to them. Pl advise
#9 KERRY | May 11, 2010
I am 40 year old Sikh female in UK. My Grandmother died in India in 2006 leaving her estate to her 6 children who are all resident in UK. One of her sons - my uncle died in 2008 leaving a will only for his estate in UK, with no mention of estate in India, he had no children and always insisted and promised verbally that his share of the estate in India belonged to his brothers/sisters and nephews/nieces. His widow claimed his share and has sold it without consulting or offering the share (in land and properties) to my deceased uncles' surviving brothers and sisters. Was his widow entitled to the whole of his share or should some of it come back to his surviving brothers and sisters as he had no children of his own? The estate in India consisted of Ancestors Agricultural Land and Properties which had been purchased over approx 4/5 generations of our family and not funded in anyway by my uncle.
#10 GURNDER SINGH | June 02, 2010
Kindly advise -
I have a property on joint names (my father and my name).But my father died in 2008.I have my mother and my sister (married).
-What is the process of transfer the property as my fathe died in 2008.
-Who all are the leagle owner of the property,
-Can we have to pay any tax for the property transfer.
#11 SUJATA DEY | July 01, 2010
Hi, I would like to know what rights I have to my grandfathers property and possesions in India. See, my grandfather passed in the year of 1989 and my grand mother passed 5 yrs ago. my father also passed 4 yrs ago.as a grand daughter my family and my partenal aunts , do we have any rights with regards to my granfathers property/possessions in India?and please also inform me,for my safety if i keeping the deed in my partenal aunts house,is it a unlawful?we have also a pvt ltd shop at kolkata,which my uncles are alredy accuried without in information of us.HOW do we start the case?
Thanks in advance
#12 SAVITA KEOLE | July 02, 2010
Joint family owned house was sold, proceeds were distributed in year 2000. What is the tax liability for such gain?
#13 ANUPAM GUPTA | July 08, 2010
we are a hindu family my father expired in 2003 and then my mother expired in 2009 without any will i applied to mcd for mutation but they are asking for stamp duty as per some new law if stamp duty is applicable in case of inhetritance i dont have any brother and sisters and i have submitted serviving member certificate for sdm office to mcd.
#14 SARANAN BANERJEE | July 14, 2010
Can my father sell any inherited property ( from his father ) without my or my sister's consent? Does it make any difference if my sister is married or unmarried ( & also does it make any difference if she has any income of her own or not ? )?
#15 FERNS | July 15, 2010
My great grandfater made a will for his 2 sons my grandfather and his brother stateing they are 50% equal share holders in all properties.My grandfater has expired so all holdings went to my grandmother who in turn expired and all holdings went to thier 4 daughters. Now the 4 daughters have looked afetr the properties spent on the up keep and maintainance ,but thier uncle the other 50%holder hasnt done anything.The will may or may not be present ,does he have a 50% share or 1/5 equal division[among 5]. Futher more he has sold his share to an outsider without approaching the immediate family members.KINDLY advice on how this has to be handled. We dont not want out side interfierance and can we file a suit on what basis.
#16 DAFFODIL | July 20, 2010
my husbands grandfather wrote a will but is not legally attested ......he has clearly mentioned that his property should be divided among his two sons equally and his sons can enjoy income from the property until they are alive and then the property should ultimately go to my husband i.e.hisgrandson. my husband and his sister are the only children of my father-in law who is no more. my husbands kaka had no children but had made a will that his share should go to his wife and ultimately go to my husband ...he is also no more now...my question is does my sister-in law have any right to this property , she is married and has two children and she is claiming equal rights in the property , please help me out to solve our family despute
#17 ARVIND PARAB | July 23, 2010
My father in india died in apr 2006. I am only son and 1 sister. My sister is us citizen Can she have right to have share in my grand fathers property? I think when she
has given up citizenship of india what righ she shoul have in India? as per my fathers will he has nomited my name in the property then how can us citizen sister will have riht on it. Please clarify.
#18 YAGNESH | July 23, 2010
If property is willed on the name of 3 brothers in a ratio, so how will the buyer pay the amount.
Will the buyer will pay 3 cheques on name of 3 brothers, or single cheque?
Also if single cheque, what will be next step, to distribute that amount among 3 brothers?
Many Thanks in Advance.
#19 SHILPASWAROOPA | August 03, 2010
My husband's father passed away last year( not yet one year) and my MIL spoke to my husband that the property will be divided equally with his other 4 sisters. My husband had to take care of all the dealings and expenses including his sisters education, wedding, house expense, and bringing them from the village and providing them with a house and also taking care of his fathers last rights. Now in turn the sisters all got good amount of gifts from parents house for their wedding and their kid's traditional cermonies.. where as we are said that we belond to the house and nothing can be given. How does the equal share hold up in the court? Can you give me some guidlines.
#20 BRIJESH | August 04, 2010
I am planning to buy a land of indian christian. The father died and his children made family trust and disposed his property to one hindu, who is alive and bought ths property in Jul 09. Now he is selling. The other thing is the son of christian father had lost original document and then made dulicate on the basis of application to police inspector, no FIR is enclosed.Just wanted to know do you recommend this property.
#21 ANDREA | August 09, 2010
We are 5 children, my father passed away, and he has put the house on 4 of our names, to be shared equally when sold. I am the only one still unmarried.
I would like to know whether my married brothers can still sell the house before I get married?
I would also like to know whether the share has to be given to the 5th child if her name is not there in the house?
#22 KAVITHA | August 10, 2010
My husbands wants to transfer his property that was gifted to him by his grandfather when he was a child to me. Is it possible and if so, how can that be done?
#23 GUNASINGAM | August 11, 2010
Hi,we are 6 children 4 sons 2 dauthers .All married before year 1988.We are all malaysian.Father past away in 1994.He had 4.4 acres land in india.He transfered the property to my eldest brother in 1987.Now my eldest brother planning to sell those land.Are other siblings entitle for any share from the property.Please confirm whether dauthers too entitle for their shares.
#24 SONAL | August 12, 2010
Hi,I wanted to know what legal rights my two Aunts(US citizens) have on my grandfather's property who died in 1982. Since then my father(US citizen)has been paying all the expenses for the flat. Not only that when the flat was bought my father added Rs.10,000 more than my aunts. Please help! Thank You!
#25 MD FAROOQ ALI | August 27, 2010
hi,for my father 1 son and 3 dauthers and just now he and my mother has been expide and for 3 sister all got married and me too married and i want to know that some of the property has been in my father name and some property has been in the name of my mother and i want to know that how much shares have to give to my sister 1/2 half r how to share and then and also do grand sons have writes to ask any property..and then me to haveing in my name some property plz give me advice about this plese help me ;;;;; thank you .....
#26 MIKE | August 29, 2010
My father in-law want to gift his agricultural property in India to his daughter(my wife).
My wife is a Canadian national but has OCI status (overseas citizen of India) can she inherit agricultural land in India? please advise
#27 G.SENTHIL KUMAR | August 30, 2010
my father died in 2001, and now i have my mother and three elder sisters. we are hindu by religion and my first two sisters who are elder to me are ready to transfer their property rights to me ,so is my mother.
but,my third sister who is elder to me is not ready to transfer the property to my name. i am ready to partition the property and give her share, but she is not responding to it also. how can i legally move with this issue. i have no problems if she takes her share and how to partition legally.
#28 NANDA KISHORE MAHAPATRA | December 27, 2010
i am a hindu. im a male.
my grandfather has a property , land with house built on it.
he purchased it in his daughter's name, my aunt.
it is our ancestral property.
what can i do to acquire possession over the property?
my grandfather has two sons and two daughters.
i am the only grandson, all the other siblings of my grandfather have daughters. nobody has a son.
i am supposed to be the legal heir of the entire family.
#29 ELISABETH | September 17, 2011
My grandma passed away over a year ago, she is of armenian decent, greek orthodox religion and lived all of her life in India. My father was born in India and living in the UK from his late 20's. He went to visit 10 years ago and was left some money by my grandmother and has papers to the effect that when she dies the money was to be left to him. What does my father need to do now and also check what personal effects were left to him. The wife of my late uncle is there but we have been unable to contact them ever since.
You help would be much appreciated.
#30 KEZOURINI | November 13, 2011
dear sir,my sister's husband passed away leaving two children,had not made any will.the house is in his name and his mother is the co partner .can his wife cancell his name and put her name in place of her husband's name......your help would be much appreciated
#31 SSETTY | January 30, 2012
Hi, My Father and Mother died long back. We are 9 siblings (5 male + 4 female)After fathers death my mother had only one Plot and she dint write any WILL but, she written a letter saying that the Plot belongs to 4 daughters. But now all 9 wants the Plot. Male already got their share of property(Homes + agricultural lands) when my father was alive. So if we go to court is there any chance of getting the property to daughters. The only evidence we have is the Hand written letter from my Mother.
#33 PRASHANT | October 18, 2012
Hi , my father has inherited a property from my Grandfather as his will after my grandfather's death, now the property is jointly inherited to my father and his brother (my uncle ). They both jointly live in the same house . But they dont live very peacefully and my father wants to sell the property to a third party , however in the will it says that neither my father or my uncle can sell there share in the property to a third party . The house is divided like ,my father's share is the ground floor , and my uncles is of the first floor . Can someone tell me how to sell this property ? The property is in lucknow .
#34 ABHILASHA | February 04, 2013
i am a british citizen, my husband who was also a british citizen died .he has a land in India which is on his name.I have two major boys .My husband who was divorced also had two major girls.None of the children r married. According to English law,wife gets the inheritance.Could you please advise how to go about transferring the land on my name.
#35 MONICA | March 11, 2013
I am an indian, roman catholic married a hindu, a second marriage for both of us under the special marriage act. he has three children from his first marriage, who were married and all three girls are divorced; and I have a son from my first marriage, aged 12. the property he bought in his first wife's name was divided and he received 1/5 as gift deed as settlement and she retained 4/5 for her and and the children. my husband was forcefully thrown out of the house by his ex-wife, her live-in partner and children then who treated him as nonexistant, unwanted. As he had no money and only land, I invested all my earnings and savings into his property to build a house. his ex-wife and children who have been living lavishly selling parts of the property are now saying they will claim what he and I have built also through the children. how can I safeguard the property from them as every rupee I earned is on the property while they sent him with only the land and not a rupee when he was thrown out of the house. will writing a Will giving me the property be enough? As a christian, will the property be shared to his children along with my child as I have married their father; (do) they become my children legally without a legal adoption? If I make a Will, will it be sufficient or should I gift the property to my son as my husband is willing to write a Will in my name? or should my husband write a Will giving the property to my son to avoid any division if transferred to me? I am very afraid that they will sell this property too and my child will be left on the road as I am an orphan and there is no one for my son after me. Hence I would like to take precautions to safeguard my son's future.
#36 HEMANT | April 30, 2013
i am an Indian. i have a foreigner friends form US. He is single. He want to make a bill in the name of me. am i eligible to get his property and bank balance?
and will that property and bank balance taxable in India?
#37 HEMANT | April 30, 2013
i am an Indian. i have a foreigner friends form US. He is single. He want to make a bill in the name of me. am i eligible to get his property and bank balance?
and will that property and bank balance taxable in India?
Login or Register to submit a comment!
In order to promote open and spam-free conversations, Global Property Guide moderates commetns on all articles. You can expect that your comment will be published within 24 hours.
Fortnightly updates from the global property arena directly to your inbox.
Connect to professional advice in India
Which parts of the world are most attractive for property investment today?