Will
subhash
(Querist) 26 April 2011
This query is : Resolved
Arun, died in 1934, leaving surviving him his widow, sumitra . Arun owned an agricultural land and two shops as his self acquired property. he also had some ancestral property inherited on partition. in 1955 Sumitra adopted a son, Nivesh who died in march 1991 leaving behind a minor son, Manoj and wife Radhika. Sumitra died in 1992 and before her death in dec 1991 made a will under which she bequeathed the entire property i.e. the agricultural land, 2 shops and the ancestral property and also the property she inhered from her father in 1935 in favor of her brother’s son, Ramit. Manoj challenged the will of Sumitra through his mother Radhika. Ramit contention in the court that to the extent of property inherited by Sumitra through her father that the would have been entitled even if she would have not made as the property would come to him as reversioner.
District court held that
i. Sumitra is entitled to make will of her husband property as after his death she was sole surviving successor.
ii. Adopted son, Nivesh and decedents are not entitled as adoption was made after the death of Arun by his widow, sumitra in 1955.
iii. Ramit contention of reversioner is applicable.
iv. Sumitra’s will bequeathing property inherited by her father is valid but out of the property bequeathed her adopted son’s widow, Radhika and his minor son Ramit are entitled for maintenance.
Manoj appeal in high court of Raj, which upheld the judgment of district court but held that the contention of Ramit regarding reversioner is not tenable. Manoj appealed in the Supreme court.
The issues are :
i. Does the surviving widow is entitled to make a will of property left by her husband after his death ?
ii. Does the adopted son and in his absence his male descendent have the right to take entire ancestral property as after the father’s death he was the sole surviving coparcener?
iii. Can the widow make a will over the property inherited by her father entirely bequeathing to brothers son, Ramit neglecting his own adopted son’s widow, Radhika and grandson, Manoj?
R.Ramachandran
(Expert) 26 April 2011
Basic facts not clear. Only when basic facts are stated and then query posted, it will be possible to give an appropriate answer.
Raj Kumar Makkad
(Expert) 26 April 2011
Entire facts are told by querist in his query. I am of the considered opinion that when Arun died in 1934, his entire share whether it was ancestral or self acquired shall devolve upon his sole legal heir widows i.e. Sumitra in this case. Now Sumitra after death of her husband adopted a son who predeceased to Sumitra. As Sumitra is sole and absolute owner of the properties received from her husband (having no relation with adopted son of Sumitra), hence Sumitra is well within her right to make will in favour of son of her brother and if proved her will is legal and within her rights. There is no ground to claim ignorance of widow of son while making will. The widow of son and his minor son Manoj could not succeed to win the confidence of Sumitra so she might have made will as per her whims and wishes.
R.Ramachandran
(Expert) 28 April 2011
Dear Mr. Makkad,
Mr. Subhash had also asked a query about WILL under url http://www.lawyersclubindia.com/experts/will-183936.asp, which was answered.
Similarly, in the current query, he had originally raised only a very very vague question giving very little or no facts at all. That's why I had asked for detailed facts, which he posted by modifying the original question itself (I do not know how he did it, but certainly he has modified his original query, and has given very detailed facts.)
Be that as it may.
Coming to the query, my views are as under:
The question whether a Widow is competent to adopt a son for the benefit of his husband, with or without the assent of her husband stands settled according to different schools prevailing in the province.
Mithila:- Mithila school says the assent of the busband must be given at the time of adoption. Therefore a widow cannot receive a son in adoption, according to the dattak form at all. [1945) 23 Pat 763.
Bengal:- According to Bengal School, an express permission given by the husband in his lifetime, but capable of taking effect after his death, is required. Janaki Dibeh v. Sudasheo 1. S.D. 197 (262); Mt. Tara Munee v. Dev Narayun 3 SD 387 (516)
Marhatta:- According to Mayukha, Kaustubha and other treatises which govern the Marhatta School, assent of the husband is required only when the wife wants to adopt during his lifetime, and the widow's power to adopt cannot be restricted for want of assent of her husband.
Benares:- It is similar to Bengal School. Widow can adopt only where she has her husband's authority.
Southern India:- In South India, if there was no assent by the husband during his life time, after his death, the sapinds's can give the assent.
Thus in Mithila school, a widow cannot adopt.
In Bengal and Benaras Schools, husband's assent is required.
In Marhatta (i.e. Western India) husband's assent is not required.
In South India, the assent of the husband or that of the Sapindas is required for a widow to adopt a son.
There is no time limit within which a widow may adopt a son.
If she is the heir to her husband's estate she will remain so, until she makes the adoption. She is entitled to be in possession of her husband's estate in her own right, and not as trustee for any son to be adopted.
A widow with authority to adopt cannot be compelled to act upon it.
Immediately upon her husband's death, the estate would pass to the next heir, whether that heir be hersolf or some other person. In such a case, the heir would take the estate with full rights as if no such power to adopt existed, subject only to the possibility of her estate being divested by the exercise of that power to adopt.
But as soon as the widow's power is exercised, the adopted son would stand exactly in the same position as if he had been born to his adoptive father, and his title would relate back to the death of his father. [1897) 21 Bom 319; AIR 1961 AP 345.
In this regard, we also have to consider the provisions of Hindu Women's Rights to Property Act, 1937.
Prior to the 1937 Act, the widow's limited estate ceased immediately upon adopting a son. The adopted son became full heir to the property, the widow's rights being reduced to a claim for maintenance.
However, with the coming into effect of the 1937 Act, upon such adoption, she will retain 1/2 of the estate to herself, while the other 1/2 share going to the adopted son.
This being the position of law, I am not sure on what grounds the District Court and the High Court held that "Adopted son, Nivesh and decedents are not entitled as adoption was made after the death of Arun by his widow, sumitra in 1955."
Only after going through the entire decision and the reasoning given by the District Court and the High Court, further views can be given.
