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Before going into the depth of the subject matter I have to discuss what is the meaning of “NRI”,” OCI” in terms of Acquisition and Transfer of any Immovable property under Foreign Exchange Management Act, 1999 which clearly defined the “NRI” and “OCI” which means as follows:
NRI: Non-Resident Indian is a person resident outside India, who is a citizen of India.
OCI: overseas citizen of India is a person resident outside India, who is registered as an overseas citizen of India cardholder under section 7 (A) of the Citizenship Act, 1955.
Now I shall discuss whether a ‘NRI’ or ‘OCI’ can acquire an immovable property in India.
Firstly: An ‘NRI’ or ‘OCI’ can acquire any immovable property other than agricultural land/plantation property/farmhouse in India by way of purchase.
Secondly An ‘NRI’ or and ‘OCI’ can acquire any immovable property other than Agricultural land/Plantation property/Farmhouse in India from person or persons resident in India or from an NRI or and OCI, in case who is a relative as defined in Sub section (13) of Section 2 of the Companies Act,2013
: An ‘NRI’ or ‘OCI’ can acquire any immovable property in India by way of inheritance from a person resident outside India and acquired the property in accordance with the provisions of the Foreign Exchange law in force at the time of acquisition.
Fourthly: An NRI or OCI can acquire any immovable property in India by way of inheritance from a person resident in India.
Now the question felt for consideration. Is that an ‘OCI’ card holder who is now a Foreign National, and who inherited a flat form her/his father, the deceased member of a co-operative Housing Society Ltd in West Bengal and he/she is the only child of his/her father , can be a member of the Society and owner of the said flat which he/she inherited from his/her father, by virtue of Foreign Nationality.
According to me when an ‘NRI’ or ‘PIO’ or ‘OCI’ card holder can acquire a property in India in terms of the Circular on Acquisition and Transfer of Immovable property in India except Agricultural land/Plantation property/Farmhouse, such person, obviously become the owner of any movable property, if such person either purchase or inherit any immovable property in India even by virtue of his/her Foreign National.
That if a person inherit any flat under the cooperative Housing Society in West Bengal she is also entitled to be a member of the Society in respect of the flat which she/he inherited.
That in terms of the provisions of section 92 (3) of the West Bengal co-operative Societies Act, 2006 there is no problem to become a member of the Society in respect of a flat which he/she inherited subject to compliance with all other formalities as required to be complied with to become a member of the Society in accordance with the West Bengal co-operative Societies Act,2006.
That in a case reported in 2016(0) Supreme (Cal) 711 = 2016 WBLR 291 Andrey Christinne Bhattacharyya -Vs- The State of West Bengal, the Hon’ble High Court, held in a case where on the death of the sole member of the Society in respect of the flat ,the sole legal heir of the member concerned , who is a Foreign National, after the death of the member concerned, acquired the said property, and applied for her membership but the question which was troubling the co-operation of Society and the Urban Development Department, Government of West Bengal, as they were of the view , that by virtue of her Foreign Nationality, she can’t be a member of the Society and the owner of the said Flat. That ultimately the Hon’ble High Court, Calcutta clearly held that the person is entitled to membership in the said co-operative Society and to the ownership and possession of flat subject to any formalities that she had to observe as a Foreign National to be able to get membership of the Society.
So relying upon the relevant provisions of law and the aforesaid Judgment of the Hon’ble High court, in my view any Foreign National and ‘OCI’ card holder or ‘NRI’ who inherited, any Flat of a co-operative Society in West Bengal can be the owner of the said flat and become a member of the society which is heritable and transferable property in terms of the provision of the West Bengal Co-operative Societies Act 2006 subject to compliance with the formalities as required to be done to become a member of the Society by such person and there is no bar to become a member of the Society by such person being an ‘OCI’ and a Foreign National. The judgment of the Hon’ble High court reported in 2016(0) Supreme (Cal) 711 = 2016 WBLR 291 Andrey Christinne Bhattacharyya -Vs- The State of West Bengal is also enclosed herewith for ready reference.
This product is Licensed to : Debasis Guin, Advocate
2016 0 Supreme(Cal) 711 ; 2016 4 WBLR 291
CALCUTTA HIGH COURT
Indra Prasanna Mukerji, J.
AUDREY CHRISTINNE BHATTACHARYYA – Petitioner
Versus
THE STATE OF WEST BENGAL & ORS. – Respondents
W.P. No. 4134 (W) of 2015
Decided On : 05-01-2016
Foreign nationals can inherit property in India through testate
succession, and remarriage does not divest a woman of her
property rights.
Subject: Property Law – Inheritance and Ownership Rights
Act Referred :
WEST BENGAL CO-OPERATIVE SOCIETIES ACT : ., S.92(3)
Co-operative Society – Foreign National Ownership – The court held that a
foreign national can be a member of a Co-operative Society and own
property in India through testate succession, and that remarriage does not
divest a woman of her property rights.
Fact of the Case:
Indumati Bhattacharyya, a Hindu woman and member of a Co-operative
Society, passed away intestate. Her son succeeded to her properties,
including a flat in the building owned by the Society. Upon his death, his
British wife, now settled in New Zealand, became the executor and legatee
under his will.
Finding of the Court:
The court found that the petitioner, as the legatee of her husband’s will,
was entitled to membership in the Co-operative Society and ownership of
the flat, as there is no law preventing testate succession by a foreigner
and no provision in Indian law to divest property from a woman upon
remarriage.
Issues: The issues revolved around whether a foreign national could be a
member of the Co-operative Society and own property in India, and
whether remarriage would affect the petitioner’s rights to the property.
Ratio Decidendi: The court relied on the Indian Succession Act, 1925, and
Section 92(3) of the West Bengal Co-operative Societies Act, 2006 to
establish the rights of the petitioner as the legatee of her husband’s will
and to affirm the heritability of immovable property, including the flat in
question.
Page No. 1 of 3
Final Decision: The court held that the petitioner was entitled to
membership in the Co-operative Society and ownership of the flat as the
legatee of her husband’s will, subject to any formalities required for her to
obtain membership as a foreign national.
Advocates: Advocates Appeared :
For the Petitioner : Subhransu Ganguly, Soumya Majumder, A. Datta Sharma, Pallab
Kr. Mitra and Sayan Ganguly
For the Respondent : Sunil Kr. Chakraborty and Ruma Chakraborty
JUDGMENT :
The Judgment of the Court was as follows :
Indumati Bhattacharyya was a Hindu woman. She was a member of the Vidyasagar
Samabaya Abasan Samity Ltd. a “Co-operative Society under the West Bengal Cooperative Societies Act, 2006. Being such a member, she was allowed to own a
unit/flat (No. N-3) in the building owned by the Co-operative Society.
2. It appears that her only legal heir and representative was her son Dr. Amitabha
Bhattacharyya.
3. He was married to the petitioner a British subject but now settled in New Zealand.
The son arid the daughter-in-law resided in the United Kingdom. They had no
children.
4. Indumati Bhattacharyya died intestate on 24th April, 1990. Upon her death, Dr.
Amitabha Bhattacharyya succeeded on intestacy to all her properties, including the
Said flat N-3. Dr. Bhattacharyya became a member of the Co-operative Society. He
died testate on 23rd January, 2003, leaving behind the petitioner as the executor
and legatee under his last Will and Testament. She obtained probate thereof.
5. Subsequently the petitioner remarried and has settled in New Zealand.
6. The question which is troubling the Co-operative Society and the Urban
Development Department, Government of West Bengal is whether by virtue of her
foreign nationality the petitioner can be a member of the Society and the owner of
the said flat and if so, whether after remarriage the petitioner was divested of the
above right?
7. In my opinion, on the death of Dr. Bhattacharyya the legal ownership of the flat in
question and the right to become a member of the Co-operative Society vested in
the petitioner, first as executor and thereafter as the legatee. There is nothing in
any law, modifying the Indian Succession Act, 1925, so as to prevent testate
succession by a foreigner.
8. In fact Section 92(3) of the West Bengal Co-operative Societies Act, 2006 declares
that an “apartment” is a “heritable immovable property”.
9. Having become the absolute owner of the property, there is nothing in our law,
which divests property from a woman upon her remarriage.
10. Therefore, I dispose of this writ application by holding that the writ petitioner is
entitled to membership in the said Co-operative Society and to the ownership and
possession of flat N-3 as the legatee of her husband’s Will, subject to any formalities
Page No. 2 of 3
that she has to observe as a foreign national to be able to get membership of the
Co-operative Society.
11. The Co-operative Society will dispose of the application of the petitioner for
membership on the basis of this order within eight weeks of communication of this
order.
12. All the papers are before this Court.
13. Affidavits were not invited. The allegations contained in the petition are deemed
not to have been admitted.
14. This writ application is, accordingly, dispose of.
15. Urgent certified photo copy of this order, if applied for, be given to the learned
Advocates for the parties upon compliance of all requisite formalities.