adoption
dv apparao
(Querist) 17 January 2010
This query is : Resolved
is adoption deed registration is mandatory or not, if not registered what was its legality
A V Vishal
(Expert) 17 January 2010
Instruments of adoption often give rise to doubt as to their proper treatment in a registration office. The following instructions in regard to their registration should be followed :--
Deeds of adoption, as generally met with in practice may be divided into four cases:--
(i) deeds which recite the fact of adoption only;
(ii) deeds which recite the fact of adoption, and convey the property of the adoptive father to the adopted son during the lifetime of the former;
(iii) deeds which recite the fact of adoption, and will the property to the adopted son after, the adoptive father’s death;
(iv) adoption deeds executed by windows in pursuance of an authority to adopt.
Instruments of the first class fall under clause (f) of section 18 of the Act, and their registration is optional but they must be presented, if registration is desired within the time allowed in Part IV of the Act. They should be registered in Book 4, and described therein and in the statistical returns as “adoption-deeds†(mutbana-nama). They are chargeable with stamp duty, under article 3, of schedule 1, of the Indian Stamp Act, 1899.
Instruments of the second class should always be recorded in the registers and statistical returns as “instruments of gift (hiba-nama). They must be brought for registration within the period of limitation allowed in Part IV of the Act, but are subject to different treatment according as the property transferred is immovable or movable. Where the property transferred under clause (a) of sub-section (1) of section 17, and registration is compulsory. The registration should be made in Book 1, the fee payable being according to the scale given I clause (b) of Part (1) of article 1 of appendix I. Where the whole of the property conveyed is movable the instrument falls under clause (d) of section 18 of the Act and registration is optional. The instrument should be registered in Book 4 and the fee chargeable is two rupees. In either case the instrument must transferred under Article 33 of schedule I-A, or as an adoption-deed under article 3 of schedule I-A of the Indian Stamp Act.
Instruments of the third class fall under two heads : -
(a) deeds intended to operate as wills and reciting the fact of adoption only incidentally;
(b) deeds intended to operate as those of adoption and containing also a provision that the adoptee would succeed to the property of the adoptive father after death of the latter.
The deeds falling under (a) must be recorded and treasury in every respect as wills (wasiyat-nama). Their registration is optional under clause (e) of section 18 of the Act, and they may be presented at any time section (ii). They must be registered in Book 3, and are liable to a registration fee of Rs.5, but are excempt from stamp duty. Instruments coming under (b) must be treated as deeds of adoption for purposes of stamp duty as well as registration.
Instruments of the fourth class must be treated in every respect as those of the first, but care must be taken to distinguish between instruments conferring authority to adopt a son (ijazat-nama tabniyat) and adoption-deeds executed in pursuance of such authority as to which, as well as to the definition of a “will,†paragraph 73, may be consulted. The registration of an authority to adopt is compulsory, while that of an adoption-deed is optional; the former must be registered in Book 3, the latter in Book 4,; the registration-fee for the former is Rs.5 and for the latter Rs.2, both instruments are, however, alike chargeable with a stamp duty of Rs.20, under article 3 of schedule I-A, of the Indian Stamp Act, 1899.
Adoption-deeds not uncommonly contain stipulations on the part of the adoptive father for the maintenance of the adopted son, and provisions for his marriage expenses. Such stipulations are to be regarded only as a record of the duties which are imposed by the law itself without express mention, upon the adoptive father, and do not bring the deeds which contain them within the definition of “agreements†given in section 2 of the Indian Contract Act, 1872.
Raj Kumar Makkad
(Expert) 17 January 2010
Though it is not mandatory but it is safer side if adoption is registered. Even if not registered, then the adoption is to be proved through convincing reliable evidence oral as well as documentary before competent court of law.
adv. rajeev ( rajoo )
(Expert) 18 January 2010
to register the adoption deed not mandatory but it is good to register the same.
Sachin Bhatia
(Expert) 24 January 2010
It is better for future consequences if it is register.
