Dealing with Indian real estate issues, especially if you have lived outside the country for a long time can be a nightmare.
One of our clients was excellent at the legal documentation and left a will that clearly defined the distribution of their assets. So the title in itself was not disputed, but unfortunately, a piece of paper we did not find in his records the “khata” or “patta” – a record of ownership in urban records.
That individual missing document was enough for him to say this to us – “The process of inherited property in India can be quite cumbersome, especially if the paperwork is not in order, as it will involve several jurisdictions.”
Many times there is no will makes the title itself controversial. If there is a will, the related property documents can not exist. Indian sensitivity prevents the heirs from asking parents for death documents from parents or other beetles. As a result, the heirs end up running around some to complete the inheritance.
Know More: Mutation of Property
Here are some answers to frequently asked questions about this topic:
What documents are needed to transfer the title of the inherited property?
Register your Will
As required by law, a WILL need not to be registered. It can be written on a simple sheet of paper. However, the registry makes it a valid document that can be presented in court. “We recommend that the will should be registered.
A succession certificate
In the absence of a will, the heirs would have to obtain a certificate of succession from the court. The heirs will have to present different types of documents as
- Certificate of death of the deceased
- Birth Certificate of the heirs
- A copy of ration card, heirs’ statement, etc.
These documents are necessary to prove that the heirs are in fact the legitimate successors, Original Property Purchase Certificate and Registration Documents are needed in the case of old properties, In case the original purchase deed is not available you would need to obtain certified copies of the title deed from the registrar’s office.
The Encumbrance certificate records and reflects all transactions that occurred on a property, whether it is a sale, lease, mortgage, gift, partition, release, etc.
Khata is a record of the registration of the data of the owners in the records of the Corporation / Municipality. It contains details such as the name of the owner of the property, the type of property, the property taxes paid / to pay, etc. It is mainly evidence of who owns and possesses the concerned property.
How is Khata different from the property registration?
The registration document shows the purchase or sale of land from one landlord to another with several rights over it, while the Khata shows annual property taxes paid. Ideally, when a property registration changes, Khata must also be automatically changed in the municipal records. Unfortunately, that automatic process does not occur, and Khata must be transferred separately.
What is the process for effecting the transfer of title?
Transfer of inherited property can on through the mutation of revenue/transfer of Khata records. Mutation of revenue records means updating the details of the new owner of the property in the books of the respective development authority, i.e. the municipal corporation or the village Panchayat.
To do this, you must submit all the documents mentioned above to the authority.
While the transfer must be done locally, i.e. within India and within the same jurisdiction where the property is located, it can be executed by an NRI using a Power (PoA). For the certificate of succession also, the NRI may have someone to represent it through the PoA. The person you choose can be a friend, relative or even a professional.
Having said this, different municipal bodies follow different processes. It might be best to talk to a local lawyer about your specific case.
How should an NRI make the PoA?
The NRI may issue a PoA in favor of a local representative, authorizing that person to perform certain specified and incidental acts /deeds and things. Such POA must be properly notarized by an attorney in the country of the NRI residence followed by certification at the nearest Indian consulate in that country.
This must be handled by the NRIs in their country of residence. The PoA then needs to be registered in India (through the adjudication process) by paying the required fees/stamp duty to the Stamps and Registration Department. This can be handled by the PoA holder.
It is safe to give a PoA as long as you explicitly specify its purpose and keep track of it. If you approve misuse at any time, then take immediate action to revoke the POA followed by a publication in the newspaper of such revocation, deliberately notifying the general public. General PoAs (i.e., PoAs with open/general/ wide powers) should be avoided at all times. Through the PoA, the acts of the holder are similar to the acts as if they had been carried out by you.
So you cannot claim misuse if you have given a very open ended PoA. Also, we have seen that abuse of PoAs usually occurs within families and families. Blind trust without checkpoints and the sensitivity of personal relationships make this a difficult place to step on. Most of the legal issues related to NRIs ownership come from here.
What are the most important things to do as a precautionary measure to avoid future legal issues or complications with respect to inherited property?
- Make sure a will is made and properly registered. One can always write a new Will at any time and have it registered again. The last recorded Will is the one that will be used. Make sure ownership issues are discussed and clarified between siblings, so there are no complicated legal disputes later.
- Make sure that the documentation required for each property to establish ownership is correctly done. In some cases, ownership continues into peaceful enjoyment without mutation (transfer of records to subsequent successors) for generations. That kind of situation is a time bomb waiting to explode if relationships go wrong. And more the number of successors, greater the complications.
- For NRIs, the biggest challenge is to tackle the unknown. It is important to understand and accept systems and processes in India. Having lived abroad for several years, one gets habitual to a certain way of doing things. There is no right or wrong way anywhere. It is getting used to the local form. There is no point in trying to fight the local bureaucracy. We would only suggest that you consult a local or known lawyer who understands the system or you avail the services of professional organizations. Worth it, legal Advice NRI is always there for all your property related matters in India.