Anupriya
Asked September 15, 2013

rights adopted child in his biological family property

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What are the rights of an adopted child with respect to his/her biological father's ancestral propery?

Answers 2

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Kinnori

a child who is being adopted, if has some ancestral propety from his/her biological parents, will definitely inherit it, subject to presence of anything else mentioned in the will, made by his/her biological parents. In such a case, generally, we have seen, adoption occurs when the biological parents of a child has died. 

The Court, then appoints a guardian who shall take care of his/her ancestral property unless the child turns 21. Thus, if that is the case, the child shall inherit the property at the age of 21.

In other, cases, where a child has been adopted, even with the presence of biological parents,, if a child is being adopted by some one, in that case also, the child has all rights to claim his/her ancestral property.

Agree Comment 0 Agrees about 4 years ago

Adoption has the effect of transferring the adopted child from his natural family into the adoptive family. It confers on the adoptee, the same rights and privileges in the family of the adopter as the legitimate son except in few cases. While an adopted child acquires rights in the adoptive family, he loses all the rights in his natural family, including the right of claiming any share in the estate of his natural father’s or natural relations or any share  in the coparcenary property of his natural family.[1]

Even though the adopted child loses the right of claiming any share in the estate of his natural family but there is an exception to this under Section 12 of the Hindu Adoption and Maintenance Act, 1956. Section 12 deals with the ‘Effects of Adoption’ and proviso (b) of this section provides that “any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth”.

There is some controversy as regards the adoptee being divested of the coparcenary property belonging to the family of his birth. In Sri Rajah Narsimha v Sri Raja Rangayya, the Madras High Court had held that adoption does not result in divestment of any property which had vested in the adopted son prior to adoption. Where coparcenary property has already vested in a person as a sole surviving coparcener and such a person is subsequently adopted into another family, he does not lose his rights in that property.[2]

The High Court of Andhra Pradesh in Y. Nayudamma v Govt of A.P has held that an adoptee retains his interest in the undivided property of the family of his birth.[3] The decision of this case was also followed by the Kolkata High Court in Surendra Nath Malhotra (HUF) v Gift- Tax Officer.[4] In Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, it was held an adoptee can take only that property to his adoptive family from his birth family which is already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving coparcener as he becomes its absolute owner. Clause (b) of the proviso to section 12 cannot be attracted when the property has not been vested in him and is still a fluctuating coparcenery interest. In this case the term ‘vested property’ was interpreted as the property in which indefeasible right is created, i.e., on no contingency it can be defeated in respect of particular property.[5]

On the other hand, the High Court of Patna in Santosh Kumar v Chandra Kishore has held that adoptee’s right in the undivided property of the family of his birth comes to an end at the time of adoption.[6] Subsequently, the Patna High Court has observed in Khidmat Singh v Shri Joginder Singh & ors, that the property as per proviso (b) of Section 12 which vested in the adopted child before the adoption shall continue to vest in such person whether that property vested in him either due to partition or otherwise.[7]

 

[1] Mulla, Hindu Law, 19th Edition Vol. 1, p.832.

[2] (1906) 29 Mad 437.

[3] AIR 1981 AP 19.

[4] (1985) 13 ITD 499 Kol.

[5] AIR 1992 Bom 189.

[6] AIR 2001 Pat 125.

[7] 2010 P& H.

Agree Comment 0 Agrees about 4 years ago

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