Sarita (air hostess) 04 June 2013

Transferng ancestral property between pio's

I was born in India and moved to Overseas at the age of 1 yr.

My fathers mother left a land in India in my fathers name who is the only child.After she passed away,now my brother who lives in Malaysia also planning to move to India and settle there.My Father has given me the power of attorney to transfer the property in my brothers name.We went there and the sub registrar refused to procede with registration process claiming The property is coming under Garden land and PIO card holders are not allwed to hold Farm land or agricultural property.

Me, My Father and My brother all Of Us are PIO (Person of Indian Origin)card holders

The property is Ancestral property and according to Reserve bank of India notification, Ancestral property can be held by PIO or OCI

The most ilogical part of this is The property is actually is not farm land or agricultural land.

Revenue dpt has only 2 catogories Either awet land or Garden land and The title Garden land they use is not same as The Agricultural land or Farm land..Its just a term they been using in classification.

Could the lawyers sugest me how do I solve this issue.

Is sub registrar has the authority to refuse a totally legal transfer of land?

Cheers

Sarita

Reply Follow

3 Replies

Advocate Sastry (Advocate) 04 June 2013

Dear Sarita,

What you term as Garden is being classified as Plantation... You can go through following guidelines under FEMA.

Sale of immovable property

NRIs can sell property in India to i) a person resident in India; or ii) an NRI; or (iii) a PIO. PIOs can sell property in India to i) a person resident in India; or ii) an NRI; or iii) a PIO ( with the prior approval of the Reserve Bank). An NRI / PIO may sell agricultural land /plantation property/farm house (already owned by him) to a person resident in India who is a citizen of India. The sale proceeds may be credited to NRO account of the NRI /PIO. From the balance in the NRO account, NRI/PIO may remit abroad up to USD one million, per financial year, subject to the satisfaction of Authorised Dealer and payment of applicable taxes.

Inheritance of immovable property:

NRIs and PIOs can inherit and hold immovable property in India from a person who is resident in India. However, a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal and Bhutan should seek prior approval of the Reserve Bank for inheriting immovable property in India. NRIs/PIOs can sell such inherited property. General permission is available to the NRIs/PIOs to repatriate the sale proceeds of the immovable property inherited from a person resident in India subject to the following conditions: (i) the amount should not exceed USD one million, per financial year (ii) this is subject to production of documentary evidence in support of acquisition / inheritance of assets and an undertaking by the remitter and certificate by a Chartered Accountant in the formats prescribed by the Central Board of Direct Taxes vide their Circular No.4/2009 dated June 29, 2009 (iii) in cases of deed of settlement made by either of his parents or a close relative (as defined in section 6 of the Companies Act, 1956) and the settlement taking effect on the death of the settlor ) the original deed of settlement and a tax clearance / No Objection Certificate from the Income-Tax Authority should be produced for the remittance (iv) where the remittance as above is made in more than one installment, the remittance of all such installments shall be made through the same Authorised Dealer.

If you need further clarifications in this matter you can contact your local Advocate or your banker.

Sarita (air hostess) 18 June 2013

Thank you Sir

Renuka Sakhalkar (Intern) 20 June 2013

A query regarding ancestral property...

A purchased the property and was living in the property with his wife B and with kids C and D, of which one is a girl and another is a boy. A died and the property got transferred in B's name.

Now even B died...C who is a girl got married and stays with her husband and kids,

D used to stay with his parents and B had nominated D as a nominee for the flat.

Now, my question is the property is to be transferred to D and C does not mind giving NOC; will this property be considered as ancestral property and if yes, what is the stamp duty payable?

If not, please explain why this property is not ancestral and then what will be the stamp duty payable under Bombay stamp Act?

Is there any HC/SC Judgement stating the clear demarcation of ancestral property or is there any circular being put up in this regard by the sub-registrar?