regarding adoption

Querist : Anonymous (Querist) 27 March 2010 This query is : Resolved
R/Sir,
One widow adopted her nephew in the year of 1994 and thereafter in the year of 1999 alloted her immovable property by executing will deed in favour of her 5 nephews including adoptee.Please tell me which document is legal either adoption deed or will deed?
D.K.

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adv. rajeev ( rajoo ) (Expert) 28 March 2010
Both are valid if regd.,

adv. rajeev ( rajoo ) (Expert) 28 March 2010
regn., of will is optional.

G. ARAVINTHAN (Expert) 28 March 2010
Adoption is a different thing and Will is different.

Adoption is to adopt her nephew as her son.

Executing will is transferring the interest over the property on their names

Parveen Kr. Aggarwal (Expert) 28 March 2010
If adoption deed is duly registered and parties are Hindus, then by virtue of provision contained in section 16 of the Hindu Adoptions and Maintenance Act, 1956, a presumption will arise in its favour.

From your query, it appears that while executing the will the executant has treated her adopted son as her nephew. Such recitals describing her adopted son as nephew are contrary to the adoption deed and are not lawful. On this ground will can be challenged that the will was not executed out of free will and in full senses.

Querist : Anonymous (Querist) 28 March 2010
Respected Parveen Kumar,
Can I institute a suit for cancellation of will on the ground that the will was not executed out of free will and in full senses?
D.K.

Parveen Kr. Aggarwal (Expert) 28 March 2010
Mr. Anonymous,

You have not stated whether the widow executing will is alive or not?

Querist : Anonymous (Querist) 29 March 2010
Respected Parveen Kumarji,
Sorry,I have described detailed facts of the matter.The widow who executed will has died and now 4 nephew out of 5 wants to divide this property in ecqual 5 shares among themselves.The younger nephew claiming rights on the said property on the basis of adoption deed.Can younger nephew institute a suit against 4 brothers for cancellation of will on the ground that the will was not executed out of free will and in full senses?
D.K.

Parveen Kr. Aggarwal (Expert) 30 March 2010
Yes. The younger nephew who was adopted during her lifetime can challenge the will which obviously does not show factual position. It may be one of the grounds that she has not executed the will in her full senses and the same is reflected in the ignorance of a vital factum of adoption.

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