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A legally adopted child has the same inheritance rights as a natural-born

LiveMint logoLiveMint 20-06-2017 Marylou Bilawala

My parents had legally adopted a child in 1976. Two years later I was born. My father died last month without writing a Will. Legally, is my step-brother bound to get share in the property? If so, will it have to be equal? Can my mother, decide the share?

—Gautam Ahluwalia

I have assumed that your father was Hindu. Accordingly, since he died intestate (without making a Will), the Hindu Succession Act, 1956, would apply to the succession of your father’s property.

According to Section 8 of the Hindu Succession Act, 1956, your 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.

Although the expression “son” is not defined under the Hindu Succession Act 1956, it would include both a natural son as well as a son adopted in accordance with the law relating to adoption among Hindus in force at the time of adoption. This is because as per Section 12 of the Hindu Adoption and Maintenance Act, 1956, a legally adopted child is deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family, from the date of adoption. Since you have stated that your brother was legally adopted by your parents, he would also be considered to be a Class 1 heir and would be entitled to a share in your father’s property.

As per Section 9 , read with 19 of Hindu Succession Act, 1956, you, your adopted brother and your mother (all being Class 1 heirs) are entitled to an equal share in your father’s estate.

Your mother may not unilaterally decide the shares as the shares are fixed in law. However, amongst yourselves, based on mutual agreement, your father’s property may be divided. However, if this relates to immovable property then the necessary documents such as a gift or release deed, may need to be executed to give effect to the transfers.

My grandfather died intestate. All his sons and daughters transferred their share to two of the brothers 40 years ago. Now, my father never bothered about the land and neither did I. I don’t even know how much of that property is still left unsold. Can I Will my share of the property, without knowing how much or where it is, to a charity? I have no children. Will my share be calculated based on the assumption that there were two heirs or nine heirs, the actual number of class 1 heirs of my grandfather?

—Gorain Shankar

We have assumed that you are the only heir to your father’s estate and that all the rights in the property were transferred by your father’s brothers’ and sisters’ to him and your uncle in the manner prescribed by law, by execution and registration (with the Sub-Registrar of Assurance) of the necessary conveyances/gift deeds.

Accordingly, if you are the only heir to your father’s estate, it would be possible for you to bequeath the share that your father owned in the said property, under your Will, which is inherited by you to a charity of your choice. However, we would recommend that as far as possible, particulars of the property be provided in the Will to enable the charity to which the bequest is made to ascertain the property and assert their rights thereto. Details of the property would be available in the gift deeds/ release deeds executed by your father’s brothers’ and sisters’. Alternatively, you could provide some reasonable description of what you are bequeathing to enable them to assert rights therein. You could consider taking search of the papers/documents in the office of the Sub-Registrar (if you have some idea of the location of the land).

If your father’s brothers’ and sisters’ have transferred their rights to your father and his brother, your father and his brother would each have a half share in the property. Accordingly, your share in the property would be calculated on the basis that there are only two shares—your father’s and your uncle’s—and not on the number of your grandfather’s Class 1 heirs.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries

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