Property Rights of a Legally Adopted Child under Hindu Law

Aditya Pratap is a lawyer practicing in the Bombay High Court. He can be reached at aditya@adityapratap.com

Adoption in India

Every child has a Right of Adoption. It is a very sensitive issue in India that children have no one for their care in a very high population. In comparison to all other countries, India has the highest population. And every day, many children are pushed into the orphanages because of their family problems.

Adoption is legally free under section 31, 32, 33, 36, 40. If any child gets adopted without the involvement of the child welfare committee that child has to stay 24 hours with the committee and also has to submit the reports and other documents of adoption to the local police station. The Committee issues an order for the interim care of the child. And the documents and reports of the adoption are submitted to the local police station as well as entered online in the Child Adoption Resource Information and Guidance System in the format as prescribed. 

Hindu law and its Stance on Adoption

According to the Hindu Law, it legalizes the adoption in India. It defines the adoption under the Hindu Adoption and Maintenance Act, 1956. It tells the parents to treat the adoptive children as their natural child. There must be no discrimination between the adoptive children and natural children. In the case of Bal Gangadhar Tilak Vs. Shrinivas Tilak, Privy Council observed that adoption among Hindus is not only for the purpose of legalizing the children but also it is a religious means to make obligations and sacrifices which would permit the soul of the deceased father passing from Hades to paradise. 

Devolution of Property in Case of Adopted Child

While treating of the evolution of the adopted son in Chapter IV it was seen that sons of some twelve descriptions were evolved and admitted into kinship by the ancient Indian society. But, in the present times, besides the real son, none except the adopted one, is recognized, while the rest have gradually disappeared

According to Section 8 of the Hindu Succession Act, 1956, one’s father’s assets would devolve upon his Class I heirs. Class 1 heirs include a son; a daughter; a widow; a mother; a son of a pre-deceased son; a daughter of a pre-deceased son; a son of a pre-deceased daughter; a daughter of a pre-deceased daughter; a widow of a pre-deceased son; a son of a pre-deceased son of a pre- deceased son; a daughter of a pre-deceased son of a pre-deceased son; a widow of a pre-deceased son of a pre-deceased son.

  • Rights over the Property of the Adopting Father- The adopted son inherits the whole estate of the adopter provided that the latter has no other real son.

There are two instances where the rights of the adopted son are determined as a collateral successor and as an heir to the ancestoral property in which his predeceased adoptive father had coparcenary rights. A real legitimate son succeeds to his brothers and other kinsmen, who die without leaving an heir. An adopted son also succeeds to such deceased in virtue of his bearing the same relationship of brother end the like as does the real one. He is entitled to receive his share proper as far as possible

  • Rights over the Property of the Biological Father- The filial relation of the son-given with the natural father is extinguished and is establish) with the adopter. The text of Menu states that the son-given does not take the estate of his begetter. Consequently, the proprietary right of the son-given in the property of the giver is extinguished.

The Calcutta and Madras High Courts have held that the son-given will not forfeit the property which has already become vested in him prior to his adoption  as a sole surviving coparener  or by inheritance or by partition in his natural family. On the contrary, the Bombay High Court decisions have held that he will forfeit, on his adoption, the property which has already become vested in him as the sole surviving coparcener

Cases where the Adopted Son is not entitled to Full Rights of the Natural Born Son:

  • Real Son Born after Adoption: The question of competition between the real and the adopted sons arises only when the adoption precedes the birth of a natural son. As no adoption can be validly made while a real legitimate son exists, the son affiliated under such circumstances will have no right over the estate of the adopter. Should a son be adopted while a reel legitimate son exists, each of them will be entitled to succeed to 21 his own natural father by obvious inherent right.
  • When no mode of Adoption is followed: Should one be adopted without observing the rules of procedure ordained, the adoption may be treated as invalid, since in that case, his filial relation with the adopter is not produced. He is not held entitled to receive the wealth of his adopter.
  • Adopted son of a Disqualified heir: In case an heir is disqualified on the basis of mental problem or anything of such kind, it is d educed that his adopted son and the rest have no right to succeed to such estate. The adopted son receives only maintenance.

Conclusion

Adoption is a beautiful process which not only helps the child but also the Parents. Half of the population of children is alone they don’t have legal parents to take care of them. Adoption is the best way to give them a good life. It also helps in maintaining the population of the country. The law suggest us to not to make any difference between a natural child and an adopted one. The same should be reflected when we consider the inheritance of property and estate.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

Cases argued by Aditya Pratap can be viewed here.

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