Property Law

The following article was first published in the Mint newspaper on 14th June, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

I am an Indian, but my brother settled down in Bangladesh 30 years ago and is now a citizen there. He wants to gift me the property that he inherited here after the demise of our father. What is the process for this transaction?

— Name withheld on request

Your query infers that your brother is non-resident in India for tax purposes. A non-resident in India is eligible to transfer property acquired by way of inheritance, by way of sale or gift to Indian citizens permanently residing in India.

Your brother can execute a gift deed (without any consideration) in your favour since you are an Indian citizen residing here. Do note that such a gift deed will have to be duly stamped and registered; and depending on the location where the property is located, there will be nuances to keep in mind regarding the transfer.

What steps are needed to divide the  property of my late husband  among three people—my daughter, who is in a semi-coma stage for the past 10 years, my stepson and me. Do we require a guardianship certificate for my daughter?

— Name withheld on request

We have assumed that your husband was a Hindu and he died intestate i.e. without leaving behind a will. In your case, the property devolves upon all three of you equally as his class I legal heirs . We assume that all legal formalities regarding your stepson have been completed.

You may consider applying for a grant of letters of administration from the court. The same will include the issuance of a notice to all legal heirs. If no objections are received from the legal heirs as regards your husband’s estate and the said proceedings, such grant can be issued by the court. As no objection is envisaged from the facts shared, the guardianship certificate for your daughter is not necessary for the purpose.

However, in case you wish to apply for the official guardianship of your daughter who is in a coma, please note that at present there is no legal clarity relating to the appointment of guardians to patients lying in a comatose or vegetative state. A writ petition before the relevant  court may be considered for the purpose of appointing a guardian for her, after deliberations with your lawyer. However, this is likely to take time and cost to complete.