02 August 2020
My father was adopted wen he was 3 month's baby as intrafamily adoption, we're no paper work done on that time and in mean time the adoptee and his wife doesn't had child so they wanted to improve their name and they wanted a son to extende their family name, so my dad was adopted and after few year's in some revenue paper with knowing or unknowingly he wrote my father as foster son at my dad's age of 7yrs and they never treated or said anybody as their foster son instead they was saying their son, but wen the first of adoptee was very became ill health and she got known that she'll not survive in future so she decided to marry another lady we're that lady is first wife's sister, in first wife's presence. After the death of first wife the second wife started to step mother attitude and abused my dad by keep hold on my dad's adopted father, the second wife got three childrens after wedlock and after many year's she decided to keep my dad separate in same house and quralled with my dad, she received all property in her name aa gift deed without whispering any matter to my dad and now adopted father passed away, now she is forcing us get out of her property and humilating us by bad language, in all govt records the father name mentioned as adopted father's name only, he had no issues with my dad. Im asking how can my dad claim on property, now she is claiming and highlighting my father as foster son, im here worried sir, pls help us
06 August 2020
Children, including adopted child, do not have any claim over the self- acquired properties of the parents during their lifetime. They have a subsisting right and share in the father's property during his lifetime only if the property is ancestral. As such the critical issue is whether the property is ancestral or otherwise. Please verify.
It is the settled law that adoption is valid even in the absence of adoption deed. It has been held by the Bombay High Court in Vishvanath Ramji Karale vs Rahibai Ramji Karale that:
"6. However, a second objection was taken to the admissibility of this document by the learned District Judge under Section 63A of the Dekkhan Agriculturists' Relief Act. The parties in this case are agriculturists and Section 63A provides that when an agriculturist intends to execute any instrument required by Section 17 of the Indian Registration Act, to be registered under that Act, he shall appear before the Sub-Registrar within whose sub-district the whole or some portion of the property to which the instrument is to relate is situate and the document must be written either by the Sub-Registrar or in his presence in accordance with the provisions of Sections 57 and 59 of the Act and then be registered under the Indian Registration Act. The effect of this provision is that such documents as are required by Section 17 of the Indian Registration Act to be registered must in the ease of agriculturists be written either by or in the presence of the Sub-Registrar and be subject to certain formalities. Now, admittedly, this document was not written in the presence of the Sub-Registrar or by him, and the question then would be whether an adoption deed of this nature requires registration. Under Section 17 of the Indian Registration Act, adoption deeds in themselves are not compulsorily registrable, but it is contended that by this adoption deed Ramji the adopter created an interest of Rs. 100 or upwards in immoveable property and therefore the document would be compulsorily registrable. The answer to that is that it is not the adoption deed which confers the status of an adopted son or any interest in the property of the adoptive father, but the adoption itself which in this case had taken place some days earlier. A perfectly valid adoption can be made without an adoption deed and any status which the adopted son gets by the adoption is due to the proper ceremonies being performed and not to any deed passed as evidence of that adoption. It has been suggested, however, that the case of Pirsab valad Kasimsab v. Gurappa Basappa (1913) I.L.R. 38 Bom, 227 : s.c. 16 Bom L.R. 111 leads to a contrary conclusion. But that case supports my view. It says that a deed of adoption by which an interest is reserved to the wife of the adopter in immoveable property which she otherwise would not have possessed and could not have possessed, when such interest exceeds in value Rs. 100, requires registration. That, however, is a case in which the adoption deed created an interest in a third person and not in the adopted son and therefore it does not in any way conflict with the principle that it is the act of adoption and not the adoption deed which gives rise to the rights of an adopted son. There can, therefore, be no question that the adoption deed does not purport to create, assign, limit or extinguish any right, title or interest of the value of Rs. 100 and upwards in immoveable property. It has, however, been suggested that it operates to declare such interest and the question will therefore arise, what is meant by declaring an interest in immoveable property V On this point we have a ruling of this Court in Sakharam Krishnaji v. Madan Krishnaji (1881) I.L.R. 5 Bom. 232, where it is laid down (p 236):
There [i. e., in Section 17 of the Indian Registration Act III of 1877] ' declare' is placed along with 'create', 'assign', 'limit', or 'extinguish' a 'right, title or interest,' and these words imply a definite change of legal relation to the property by an expression of will embodied in the document referred to....It implies a declaration of will, not a mere statement of a fact, and thus a deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense; but a letter containing an admission, direct or inferential, that a partition once took place, does not ' declare ' a right within the meaning of the section...it is not the expression or declaration of will by which the right is constituted. Applying these principles to the present case it will be seen that the adoption deed is not the expression or declaration of will by which the right is constituted but merely a recital of an act which has already taken place. As I have already pointed out, it is not the adoption deed by which the rights of the adopted son are created but the adoption itself and any wording in the adoption deed cannot either create or limit any rights which the adopted son gets by his adoption. The result of this is that the adoption deed must be regarded as admissible in evidence, and, taken in conjunction with the oral evidence, is sufficient evidence of the proof of the adoption We would, therefore, set aside the decree of the lower appellate Court and restore the decree of the first Court with costs throughout. The rule for stay of execution is made absolute with costs.”
The essentials of a valid adoption has been discussed by the Supreme Court in Madhusudan Das vs Smt. Narayanibai (Deceased) AIR 1983 SC 114, 1982 (2) SCALE 1083, (1983) 1 SCC 35, 1983 1 SCR 851, 1983 (15) UJ 25 SC :
20. For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. Shoshinath v. Krishnasunder  L.R. 7 I.A. 250 In Lakshman Singh v. Smt. Rupkanwar this Court briefly stated the law thus :
"Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. In some cases, to complete the adoption a "datta homam" has been considered necessary, but in the case of the twice-born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father. Bal Gangadhar Tilak v. Shriniwas Pandit  L.R. 42 I.A. 135. In the present case, the appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a valid adoption, and nothing has been shown to us to indicate that the further ceremony of "datta homam" was necessary."
Thus, the execution of the deed is not at all the requisite for a valid adoption. Provisions of Section 6 of the Hindu Adoption and Maintenance Act.1956 prescribes the following requisites for a valid adoption:
6. Requisites of a valid adoption No adoption shall be valid unless- (i) the person adopting has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
The said Act nowhere mandates the execution of adoption deed. The provisions of Section 16 are in a different context; it is only an incidental provision:
16. Presumption as to registered documents relating to adoption Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
The facts made available reveals that the author's father was adopted by the (adoptive) father and his (first) wife as they had no issues and he was brought up as their child, as corroborated by the entries in the school records. It is only the death of the adoptive mother and the subsequent remarriage of the adoptive that has led to the adoption being denied.
These developments, in the light of the facts informed and the settled law, are of no consequence. The step-mother cannot have any case that there was no valid adoption.
However, the question is, already stated, whether the properties held by the adoptive father have been ancestral or otherwise.