Author: Km. Vanshika, Uttaranchal University Law College, Dehradun
To the Point
Enemy property in India reflects a unique intersection of national security, sovereignty, and private property rights. Individuals who migrated to enemy nations—primarily Pakistan after the 1965 and 1971 wars, and China after the 1962 conflict—left behind vast immovable and movable properties. To prevent misuse and protect national security, the Government vested these properties in the Custodian of Enemy Property. Over time, questions arose regarding the rights of heirs, the validity of transfers, and the scope of judicial intervention. This article deeply analyses the legal status of enemy property holders, the statutory framework, judicial developments, and recent amendments that have fully extinguished inheritance and ownership claims.
Abstract
Enemy property refers to assets owned by individuals or entities who migrated to enemy countries during wartime. Governed by the Enemy Property Act, 1968, and strengthened by subsequent amendments—particularly in 2017—the law permanently vests such properties in the Custodian of Enemy Property for India. The article examines the legislative evolution, constitutional validity, rights (or lack thereof) of heirs, and major case laws shaping the contemporary legal position. It argues that the Indian legal system prioritises national security over private claims by ensuring absolute vesting of enemy property in the State. Through detailed case analysis and statutory interpretation, this article provides a comprehensive understanding of the legal complexities surrounding enemy property in India.
Use of Legal Jargon
The Enemy Property Act, 1968, incorporates key legal doctrines including “vesting,” “escheat,” “non-justiciability,” and “sovereign prerogative.” Vesting refers to the legal transfer of absolute ownership to the State, superseding all private claims. The 2017 Amendment introduced the principle of “absolute vesting,” making enemy property immune from succession laws, transfer attempts, or judicial review. The Act bars civil courts from entertaining disputes under Section 18, invoking the doctrine of non-justiciability. Furthermore, actions taken by the Custodian are grounded in sovereign authority, reflecting the State’s power to regulate properties linked to hostile nations.
The Proof
The Enemy Property Act emerged as a wartime response under the Defence of India Rules, 1962. After the 1965 war, thousands of properties belonging to persons who migrated to Pakistan were declared enemy property. These included residential estates, agricultural land, commercial shops, and movable assets. However, due to ambiguous provisions, several heirs and occupants attempted to reclaim ownership through litigation.
To address these issues, the Enemy Property (Amendment and Validation) Act, 2017, introduced sweeping reforms:
– Vesting of enemy property in the Custodian is permanent, regardless of any court order, mutation, or administrative action.
– All transfers made by enemy subjects after 1968 are void ab initio.
– Indian citizens who are legal heirs of enemy subjects have no succession rights.
– Change in nationality or citizenship of the enemy person does not affect vesting.
– Civil courts are barred from hearing related disputes.
Today, India has more than 9,400 immovable enemy properties, with Uttar Pradesh, West Bengal, and Delhi having the highest concentration. Movable properties include shares, gold, bonds, and bank balances worth hundreds of crores.
Case Laws
1. Union of India v. Raja Mohammed Amir Mohammad Khan (2005)
This landmark case involved the descendants of the erstwhile ruler of Mahmudabad, whose father migrated to Pakistan in 1947. The Supreme Court initially ruled that the property did not permanently vest in the Custodian and that heirs could reclaim it. The Court emphasised that vesting under the 1968 Act was “temporary” unless expressly made permanent. However, this judgment triggered enormous legal uncertainty and opened the floodgates for thousands of claims. To rectify this, the 2017 Amendment overturned the ruling, clarifying that vesting is always permanent, retroactive, and immune from inheritance or transfer. This makes the case historically important because it directly influenced legislative change.
2. Zafarullah Khan v. Custodian of Enemy Property (2015)
The Bombay High Court addressed whether heirs could claim enemy property after obtaining Indian citizenship. The Court held that the citizenship status of heirs is irrelevant—once a person is categorised as an enemy subject, his properties permanently vest in the Custodian. The Court emphasised that the Act overrides personal laws and inheritance rights. This judgment reinforced the State’s position that enemy property is governed by national security considerations, not civil law principles.
3. Union of India v. State of West Bengal (2017)
This case involved a dispute between the Central and State Governments regarding administrative control over enemy property. The Supreme Court held that enemy property falls exclusively under the Union List (Entry 41: Custody, management, and disposal of property declared enemy property). Therefore, States cannot interfere with or legislate on enemy property matters. This ruling strengthened federal clarity and confirmed that only the Central Government—and not any state authority—has jurisdiction.
4. Ahmedabad Urban Development Authority v. Manilal Gordhandas (1996 – Referenced for Vesting Principle)
Although not directly concerning enemy property, this case clarified the meaning of vesting in statutory law. The Court held that vesting implies complete transfer of ownership and control—this interpretation supports the 2017 Amendment’s stance on absolute vesting of enemy property.
Conclusion
The legal status of enemy property holders in India is definitive and uncompromising: no individual, heir, occupant, or transferee can claim ownership of enemy property. The 2017 Amendment has solidified permanent vesting in the State and removed all loopholes that once allowed litigation or inheritance claims. Indian jurisprudence consistently affirms that enemy property is tied to national sovereignty and security, not private ownership. As India continues to manage and monetise these assets, the law remains firm—enemy property belongs solely to the Indian State, and all competing claims are legally void.
FAQS
1. What is enemy property?
Enemy property refers to assets owned by persons who migrated to Pakistan or China during wartime. These assets are vested in the Custodian of Enemy Property.
2. Can heirs claim enemy property?
No. The 2017 Amendment bars heirs—regardless of their citizenship—from claiming enemy property.
3. Can enemy property be transferred or sold?
No. Any sale, gift, mortgage, or transfer of enemy property is void from the beginning.
4. Can courts hear enemy property disputes?
Civil courts cannot hear such disputes due to the statutory bar under Section 18 of the Enemy Property Act.
