Enemy Property Post 2017: An Analysis
Introduction
‘Enemy property’ means any property belonging to, held by, or managed on behalf of an ‘enemy,’ ‘enemy subject,’ or “enemy firm” as defined in Section 2(b) and Section 2(c) of the Enemy Property Act, 1968 (“Enemy Property Act”)[1], and held under the control of the Custodian of Enemy Property for India (“Custodian”). During the Indochina war of 1962 and the India-Pakistan wars of 1965 and 1971, the Parliament of India enacted emergency statutes i.e., the Defence of India Act, 1962[2] and the Defence of India Act, 1971[3] (“Defence Acts”), along with the rules framed thereunder, which provided the foundational framework for classifying persons and property as ‘enemy.’
Over time, what began as an emergency regime under the Defence Acts evolved into a permanent framework under the Enemy Property Act, which provides for statutory vesting and management of enemy property by the Custodian. This regime was overturned by The Enemy Property (Amendment and Validation) Act, 2017 (“2017 Amendment”) which turned custodial vesting into permanent, non-disposable vesting, expressly excluding succession and limiting remedies to statutory representations, appeals, etc.[4] This article examines how the 2017 Amendment alters vesting and eliminates succession rights with respect to enemy property in India.
Pre‑2017 Amendment: Custodianship, Ownership and Heirs’ Rights
Before the 2017 Amendment, the Enemy Property Act did not expressly extinguish the enemy owner’s title, and courts treated vesting in the Custodian as essentially administrative or custodial. In Union of India v. Raja Mohammed Amir Mohammad Khan[5], the Supreme Court recognised the respondent (the Raja’s Indiancitizen son) as the sole legal heir and successor to the late Raja of Mahmudabad and directed the Custodian to hand over possession of the immovable properties. The Court also characterised the Government’s continued possession as illegal and highhanded. The decision thus reflects that pre 2017 Amendment, the Indian Courts proceeded on the basis that: (i) substantive ownership, including the capacity for devolution by succession, remained with the enemy owner, and (ii) where the enemy died and the heir was an Indian citizen, the heir’s claim under ordinary succession law could be recognised, and the property could be released or treated as having reverted to the heir.[6]
Perpetual vesting in the Custodian under Section 5 of the Enemy Property Act
Even prior to the 2017 Amendment, Section 5 of the Enemy Property Act provided the basic vesting mechanism i.e., all enemy properties that had vested, or was deemed to have vested, in the Custodian under the Defence Acts were to ‘continue to vest’ with the Custodian under the Enemy Property Act, and any further enemy property identified thereafter was likewise to vest in the Custodian. The 2017 Amendment recharacterised the existing vesting under Section 5 by adding subsection (3) into Section 5. Section 5(3) of the Enemy Property Act now stipulates that enemy property vested in the Custodian of enemy property for India:
- shall continue to remain so vested “notwithstanding that the enemy or the enemy subject or the enemy firm has ceased to be an enemy due to death, extinction, winding up of business or change of nationality”; and
- shall so remain even where the legal heir or successor is a citizen of India or of a non‑enemy country.
The Explanation to Section 5(3) of the Enemy Property Act further clarifies the scope of what remains vested, by providing that ‘enemy property vested in the Custodian’ includes ‘all rights, titles and interest in, or any benefit arising out of, such property’.[7]
Exclusion of succession law: Sections 5B and 22 of the Enemy Property Act
The 2017 Amendment inserts Section 5B into the Enemy Property Act. Section 5B provides that no law relating to succession, nor any custom or usage regarding succession, ‘shall apply in relation to the enemy property under this Act’, and that ‘no person (including his legal heir and successor) shall have any right and shall be deemed not to have any right’ in such property. Section 22 of the Enemy Property Act, as amended by the 2017 Amendment, reinforces this by stating that the Enemy Property Act shall have effect ‘notwithstanding anything inconsistent therewith contained in any other law for the time being in force’, expressly including ‘any law of succession or any custom or usage in relation to succession of property.[8]
Transfers, validation and bar on civil courts
Section 6 of the Enemy Property Act, as substituted by the 2017 Amendment, provides that an enemy, enemy subject or enemy firm ‘shall never be deemed to have any right’ to transfer property vested in the Custodian, and that any such transfer ‘shall be void and shall always be deemed to have been void.’[9]
Section 22A of the Enemy Property Act, inserted by the 2017 Amendment as a validation clause, provides that the Enemy Property Act as amended by the 2017 Amendment shall be deemed always to have been in force, that any enemy property divested from the Custodian stands transferred back to and continues to vest in the Custodian free from encumbrances, and that no suit or proceeding shall be maintained or continued to enforce decrees or orders directing such divestment.[10]
Separately, Section 18B of the Enemy Property Act (introduced by the 2017 Amendment) bars civil courts and other authorities from entertaining suits or proceedings ‘in respect of any property’ governed by the Enemy Property Act or any action taken by the Central Government or Custodian under it, subject only to the limited representation and appeal mechanisms in Sections 18 and 18C of the Enemy Property Act.[11]
Recent judicial pronouncements
The Hon’ble Supreme Court of India in Lucknow Nagar Nigam v. Kohli Brothers Colour Lab. Pvt. Ltd. [12] held that statutory vesting of property in the Custodian under the Enemy Property Act does not transfer ownership to the Union of India. The Court observed that the expression ‘vest’ has no precise definition and must be understood contextually. The Court further held that if vesting in the Custodian were to be construed as transferring ownership to the Union of India, it would be violation of Article 300-A of Constitution of India.
Similarly, in Saif Ali Khan & Ors. v. Custodian of Enemy Property for India[13] concern whether properties inherited by Indiancitizen heirs can nevertheless be classified as ‘enemy property’ because one predecessor, Abida Sultan, migrated to Pakistan, even though the Government of India had formally recognised her sister Sajida Sultan as the lawful successor of Abida Sultan in 1962. The challenge therefore turns on whether migration by a single coheir taints the entire estate, whether governmentrecognised succession can later be reopened, and how the 2017 Amendment interacts with earlier vesting. In July 2025, the Madhya Pradesh High Court rejected the petitioners’ plea (heirs of Sajida Sultan, including Saif Ali Khan and close relatives). The Supreme Court has stayed this order. This case is pending adjudication.[14]
Conclusion
The 2017 Amendment radically changes the legal landscape of enemy property by transforming a historically custodial mechanism into permanent statutory vesting, expressly overriding succession, transfer, and civilcourt remedies. This vesting, however, does not equate to a complete transfer of ownership, as held in Lucknow Nagar Nigam v. Kohli Brothers Colour Lab Pvt. Ltd[15]. Rather, it establishes a legal framework where the Custodian has total authority and the state’s ‘ownership’ is merely formal rather than substantive. Further, Saif Ali Khan & Ors. v. Custodian of Enemy Property for India[16] highlights the practical conflicts brought about by the 2017 Amendment’s stringent approach and demonstrates how this new framework conflicts with previous succession rights that were recognised.
References
[1] Enemy Property Act, 1968.
[2] Defence of India Act, 1962, No. 51 of 1962.
[3] Defence of India Act, 1971, No. 42 of 1971 (India), and Defence of India Rules, 1971.
[4] Enemy Property (Amendment and Validation) Act, 2017.
[5] Union of India v. Raja Mohammed Amir Mohammad Khan, (2005) 8 S.C.C. 696.
[6] Lucknow Nagar Nigam v. Kohli Brothers Colour Lab (P) Ltd., (2024) 2 SCR 847.
[7] Section 5, Enemy Property (Amendment and Validation) Act, 2017.
[8] Section 22, Enemy Property (Amendment and Validation) Act, 2017.
[9] Section 6, Enemy Property (Amendment and Validation) Act, 2017.
[10] Section 22A, Enemy Property (Amendment and Validation) Act, 2017.
[11] Section 18, Enemy Property (Amendment and Validation) Act, 2017.
[12] Lucknow Nagar Nigam v. Kohli Bros. Colour Lab (P) Ltd., [2024] 2 S.C.R. 847 (India).
[13] Saif Ali Khan & Ors. v. Custodian of Enemy Property for India, 2024 SCC OnLine MP 8521.
[14] Read with Sardar Taimur Khan and another v. Union of India and others, WA 502 of 2025.
[15] Lucknow Nagar Nigam v. Kohli Bros. Colour Lab (P) Ltd., [2024] 2 S.C.R. 847 (India).
[16] Saif Ali Khan & Ors. v. Custodian of Enemy Property for India, 2024 SCC OnLine MP 8521.