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Zayn Ali   14 January 2022

Ancestral property between brothers

My brother was illegally absconded by my aunt and uncle by forging documents of Birth certificate like he was born to them and made passport and left india in 2003 and settled in Australia. Even though there was custodial battle going on which was in favor of my mother as the allegations raised by them in the suit were false. In fear of that. They absconded. Now my brother is 29 and am 31. But because he has different identity now because of fradulent activities done by my uncle and aunt. He never kept in touch with us and is not willing to give me power of attorney to sell our ancestral property, when I tried to contact him. He doesn't want to do anything related to India or our family or the property. But I am suffering because of this. How should I deal this? I thought of getting an untraceable report and file civil death. But is that right? What other options are available in such scenario?


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 2 Replies

Anaita Vas   14 January 2022

First of all, your uncle and your aunt can be punished for forging documents. Section 465 of the Indian Penal Code describes Punishment for forgery. According to this section, Whoever commits forgery shall be punished with imprisonment of jail term either descripttion for a span which may extend to two years or with the penalty, or with both. Under IPC it is a non-cognizable offense. If the forgery is of a promissory note of the Central Government then it is Cognizable.

Moreover, according to section 172 of the IPC, whoever absconds in order to avoid being served with a summons, notice, or order proceeding from any public servant legally competent, as such public servant, to issue such summons, notice or order, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the summons or notice or order is to attend in person or by agent, or to produce a document or electronic record in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

You can get a POA in this way,

STEP 1: Write the power of attorney on plain paper. There is no need to create it on stamp paper from India, subject to conditions. Once you have written the power of attorney, be sure to complete the following.

  • Please apply strictly as per your jurisdiction for which you have verifiable proof of address.
  • Sign the power of attorney. Two witnesses should also sign this document. The addresses of the applicant and witnesses should be typed clearly. All this must be done in the presence of a notary public.
  • You can also get this done at the Indian Consulate. All post offices and banks have a public notary too.
  • A free notary is available at the library of most towns. Paid notaries are available at USPS offices/shops as well.

STEP 2: Necessary Only for Commercial And Company Matters.

Send a request for an apostille to the Secretary of State. The Department of State, Authentications Office is responsible for signing and issuing certificates under the Seal of the U.S. Department of State (22 CFR, Part 131. The goal is to provide authentication services to U.S. citizens and foreign nationals (e.g. Indians) on documents such as a power of attorney that will be used overseas.

STEP 3: For All Matters Related to Property and Finances.

Send the document to the Indian Consulate. If you are submitting the documents in person, you can sign it in the presence of the officer at the Consulate. You should carry your passport as well.

The attestation service at any Indian Consulate is provided for Indian citizens only. See Statement 1 for the list of documents required as proof for attestation of POA.

There is one exception. Documents submitted by applicants of other nationalities will be attested only if there is an 'India' connection. This means that the applicant wants to give this document for a transaction in India or it originates from India.

STEP 4: Pay the fee at the Consulate. The fee of attestation is as follows:

  • Non-refundable $20 for each attestation.
  • Non-refundable $10 for attestation of each photograph.
  • Fees should be paid through money order or cashiers' cheque drawn in favor of the ‘Consulate General of India, [City of Consulate].’
  • Personal checks, credit cards, or other banking instruments are not accepted. Debit cards are accepted with an additional service fee.

STEP 5: Once your power of attorney is attested by the Indian Consulate/Embassy, you can send it to India.

The attested power of attorney that is sent to India should be ‘Registered’ in India. Once registered, the process is complete and legal and it is ready to be used.

A power of attorney must be wisely created and given to a trustworthy person. The agent must also be very cautious before accepting a power of attorney. A poorly drafted power of attorney may become a bone of contention between the affected parties.

STATEMENT 1 – DOCUMENTARY PROOF REQUIRED FOR ATTESTATION OF POWER OF ATTORNEY

  • Original passport and copies of all non-blank pages including first and last page.
  • Copy of address proof in USA – 1 document showing proof of address is required. It could be a bank statement, driving license, utility bill, home lease agreement, etc.
  • Valid visa copy – H1, H4, L1, etc. – Remember B1/B2 is not considered valid for creating a power of attorney.
  • Original visa petition approval notice.
  • Original I-94 Form and copies – In the case of electronic I-94, just take the print-out with you.
  • 2 passport-size photographs to be affixed against your name on the power of attorney.

NOTE: It is advised to carry the original version of the documents with you for verification in case the Consulate asks you to provide it.

 

Regards,

Anaita Vas

 

Zayn Ali   14 January 2022

Thank you so much for taking time and giving a detailed explanation. 

1. My aunt and aunt falsified allegations on my mother stating her character and it was not an ideal environment to grow up in. But the judge understood their claims were false. So he was ordered to take few months to wean him from them and give him back to my mother. But my mother couldn't attend the case due to financial constraints and the litigation was happening in Bangalore and we are from Pondicherry. So, i believe the case was not attended by either parties. 

2. Ceasing this opportunity, they quickly forged his birth certificate and made passport. And left india around 2000-2005. My mother was not aware that this was happening and she had no support being a newly widowed women.

3. They settled in Australia in 2005 and my brother  gained citizenship in his new name and with my aunt and uncle as his biological parents. And he is aware of all this.

4. I tried keeping in touch with him on socials. But he cut all ties.

5. I tried reaching him since 2017 seeking Power of attorney but he doesn't reply nor he is cooperating to give me PoA. In fear of losing his citizenship and passport being obtained in unlawful way.

6. So what to do when he is reluctant to give PoA not because he wants a share in the property but in fear of losing his life in Australia.

The only proof with his brith name and real parents name is in Indian BC. But Australian proofs have his new name and my aunt and uncle's name which they have forged.

 

7..i am stuck in a stalemate situation. So how to get PoA from a person who is reluctant. Because of this my life is stuck in a rut.

8. As India has not signed Hague convention, does illegall international abductions would be in favor of biological parents? 

9. Is my aunt and uncle and my brother punishable for their fraudulent activities? As my brother got his citizenship after he turned 18. 

 

Thanks in advance,

Zayn


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