Legality of adoption does not hinder inheritance if Will is properly executed
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One of my Hindu friends was adopted in 1965 (when he was 1 year old) by his mother’s sister, who already had three daughters but no son.
This adoption was by mutual consent of the two families and there was no legal documentation or any social ceremony. During the course of time, his adoptive father and one of his sisters died and the entire property and assets were transferred to the adoptive mother.
Recently, the adoptive mother of my friend also expired. She left a registered Will, bequeathing all her property and assets in the name of my friend (the adopted son).
I want to know if this adoption is valid and legal in absence of any legal documentation or social ceremony or registration with any competent authorities. Is it possible for my friend to still inherit the property given the above conditions? Though the Will is registered, neither does it give any details about the adoption nor about the biological parents of my friend. Can he claim the entire property after getting a deed of relinquishment from his two sisters?
If he is not qualified to inherit the entire property, how will the succession and inheritance of the property of his mother be decided? Finally, what is the legal course to set things right?
I have assumed that the property that your friend’s mother has sought to dispose of under her Will is her absolute property and legally vested in her following the death of her husband.
By virtue of section 14 of the Hindu Succession Act, 1956, a female Hindu is the full owner of all property, movable or immovable, howsoever and whenever acquired by her (including inherited property), except if the property has been acquired by way of a gift, Will, decree, order or instruments that prescribe a restricted estate in such property. A Hindu female has the full right to dispose of such property as she deems fit.
As per section 30 of the Hindu Succession Act, 1956, a Hindu may dispose of by Will or other testamentary disposition, any property that is capable of being disposed of by him or her, in accordance with the provisions of the Indian Succession Act, 1925, or any other law applicable to Hindus at the time.
There is no restriction under the Hindu Succession Act, 1956, nor under the Indian Succession Act, 1925, on the persons to whom a Hindu may bequeath his or her properties over which he or she has full disposing power.
In view of the above, the adoptive mother of your friend would be able to bequeath all her rights, title and interest in her property or properties to your friend even though there may have been no formal legal adoption or social ceremonies that might have taken place, provided that she was competent to contract at the time of executing the Will and that the Will has been duly executed in the manner set out in the Indian Succession Act, 1925.
The mere fact that the details of adoption have not been set out in the Will, will not invalidate the Will executed by the adoptive mother.
In the event that the adoptive mother had died intestate (without a Will), the position would have been a bit different then.
Your friend would then have been required to prove the fact of adoption (the burden of proof rests on the person who seeks to displace the natural succession by alleging an adoption), which would have to be valid under the Hindu Adoption and Maintenance Act, 1956 (with or without a registered document relating to adoption).
However, as this is not the case and there is a registered Will, your friend would be entitled to inherit the property since he is a beneficiary under the Will and the fact that his adoption was not in accordance with law or void, will not disqualify him as an heir and inheriting under a Will.
We are not examining the validity of the adoption for the purpose of this response, since it is not, in any event, relevant.
Strictly speaking, relinquishment deeds are not required from the two daughters of the adoptive mother.
If for any reason, however, the persons before whom your friend seeks to claim title of his adoptive mother’s properties pursuant to the Will require such a deed of relinquishment or refuse to act on the Will, your friend may need to obtain such a no-objection or confirmation of his rights from his adoptive sisters or a probate of the Will.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
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