• Unregistered will in favour of adopted son

KEMPAMMA W/O MALLANNA : HAD 2 SONS AND 1 DAUGHTER(1 DAMODHAR(2 LAKSHMI(3 RANGAIAH(ADOPTED SON).
DAMODHAR HAVE SON & 2 DAUGHTERS 1)BASANTH 2)GEETHA 3)SEETHA. 
RANGAIAH MARRIED TO BHAGYAMMA ,HAVING DAUGHTER RASHMI & 2 SONS SRINIVAS & PRAVEEN.
I RANGAIAH came to Blr in 63.Stayed with KEMPAMMA & FAMILY.Am adopted son of KEMPAMMA.We stayed in the rented house.I started working for HMT from 64 & also was doing part time businesses.After I started earning,I was the sole earning person in the family.I was taking care of everyone in the family.Kempamma & family dint has any source of income to lead their life or to buy any properties.In 74 Kempamma’s daughter Lakshmi love marriaged,after that she is in no way connection with Kempamma.In 80 Kempamma’s son Damodhar joined KSRTC and lived separately without taking care of their parents.In 75 I married and we continued to stay together(Me, my wife, my mother Kempamma.In my earnings & savings,started purchasing few residential properties.1)In 74 I purchased 1st property which I regd in my name,2) In 79 purchased 2nd property which I regd in the name of Kempamma,3)In 80 purchased 3rd property which I regd in my wife’s name,4)In 84 I purchased 4th property which I regd in the name of Kempamma.In 2004,Kempamma made a un regd WILL in favour of me.The two properties which I purchased in her name earlier.Kempamma died in the year 2009.After death of Kempamma in 2009,by mistake I notarized Will.After the death of Kempamma,her son Damodhar came for claim in the property.After notarized WILL,immediately I executed a gift deed in the favour of my sons.Aftr I executing gift deed.Kempamma’s son(Damodhar),he collected documents which were in the name of Kempamma & in the same yr he(Damodhar and his two daughters(Geetha & Seetha) executed a release deed in favour of his son Basanth.We applied for katha transfer in 2009 but Mr.Basanth got katha trfd 1st in 1 property & other property still katha reflecting in the name of Kempamma till now.THEY FILED CIVIL SUIT IN THE YR 2010 FOR CLAIM& POCESSION.PRESENT STATUS OF THE CASE IS ISSUES FRAME.In the court he (Basanth) made a statement that we (Rangaiah&family)were 3rd person and nowhere related to Kempamma.I don’t have any document to prove that am the adopted son.But I have documents like Voter list & Ration card to prove I stayed along with her in the same properties.And also in ration card she mentioned me as son.Also Kempamma’s sister and neighbors staying from past 50 yrs are ready to witness.from date of purchase & till date am in the pocession& paying taxes.1)Is Damodhar has right (said she had no source to purchase the properties).2)UN registered will which Kempamma made in favour of me,the same I notrified after her death in 09.Will it create any legal problem?3)Is ration card enough to prove that am the adopted son of Kempamma(in ration card she mentioned me as son)?Can I prove by witnesses?4)What all documents required to prove&win the case? PLS ADVICE
Asked 5 years ago in Property Law
Religion: Hindu

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15 Answers

1) Actually you should you legal adoption certificate that you're the adopted son and later on purchased property.

2) You collect all evidence and proof whatever you have with it from day one that all require legal documents your name is appearing in their family list. Like ration card, aadhar card, election card etc.

Ganesh Kadam
Advocate, Pune
12420 Answers
193 Consultations

4.9 on 5.0

1. Damodhar cannot stake a claim in these properties, since KEMPAMMA bequeathed her 2 properties 2 you in 2004. In any case, these properties were acquired from your funds.

2. It is not a direct proof, but an inference can be drawn from it.

3. Yes, you are free to lead witnesses.

4. Demonstrate with the help of the will that these properties were bequeathed to you by means of a will in 2004. This would be sufficient.

Vibhanshu Srivastava
Advocate, New Delhi
9441 Answers
251 Consultations

5.0 on 5.0

Yes you can prove in Court that you are adopted son through the ration card, voter ID and witnesses. How can you notarised a will after death it is illegal. As I said the documents which you have can be used to prove that you are the adopted son.

Prashant Nayak
Advocate, Mumbai
28103 Answers
93 Consultations

4.4 on 5.0

1) for valid adoption it is necessary that there should be giving and taking ceremony

2) you have not mentioned age when you were adopted

3)once will is executed property would devolve on you

4) you can rely upon evidence of witnesses to make out a case that you are adopted

5) also rely upon ration card which shows that you were adopted

Ajay Sethi
Advocate, Mumbai
89083 Answers
6362 Consultations

5.0 on 5.0

The burden to prove that the property in respect of which the damodhar is claiming right was not property of Kempamma will be on you. If you could prove that she did not had right to dispose of the property by will then your problem is solved (though the property was in her name). The will should have been notrified during the life time of her, now your will is under cloud of serious doubt but according to law of will, the first thing would have to proved that wether the testator of the will was in fit state of mind to execute his will, wether the will is properly executed means witness have signed it or not. It is general rule that will does not require registration hence the fact that you have notorised the will has very least consequences if you successfully prove the will (contents). Witness / relatives are the best evidence to prove the fact that you are adopted son and witness and scriber of the will would be best evidence to prove the will beyond doubt.

Ujwal Rajan Phasate
Advocate, Nagpur
37 Answers
4 Consultations

5.0 on 5.0

Hello,

through ration card, aadhar card, election card etc.you can prove to the court that you were adopted.

Get the will probated and once the same is probated the property will devolve upon you.

Also you may produce certain witnesses before the court who may also say that you were adopted.

At what age your adoption took place?

Regards

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

Hi,

You are suggested to contest the suit with all the proof you have and additionally you may call for the documents from government authority.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Dear Sir,

My answers are as follows:

1)Is Damodhar has right (said she had no source to purchase the properties).

Ans: Source of income is to be established.

2)UN registered will which Kempamma made in favour of me,the same I notrified after her death in 09.Will it create any legal problem?

Ans: No, always Will is to be notified after the death of the bequeather. No legal problem.

3)Is ration card enough to prove that am the adopted son of Kempamma(in ration card she mentioned me as son)?Can I prove by witnesses?

Ans: Yes it is to be proved elaborately including customs etc and you must examine two elder persons.

4)What all documents required to prove&win the case? PLS ADVICE

Ans: I will examine your case in person and tell you more in person. I am in Bengaluru. Please visit my office. The following will help you on proving the Will.

=================================================================================

What is a Will?

Answer- A Will is a testamentary document by which a person bequeaths his

property to be effective on his death is a called a Will. The property will devolve

on the person in whose favour it is bequeathed after death of the testator.

Question -9 Who can execute a Will? Are there any other conditions?

Answer-

(a) Any person above the age of 18 years and mentally sound may execute Will,

but a Will caused by fraud or coercion or by importunately will not be valid

and can be examined by a competent civil court. Therefore a Will must be

executed voluntarily.

(b) Parents or guardians cannot execute Will on behalf of minors or lunatic

children.

(c) A Will must be attested by minimum two witnesses is necessary.

(d) A Scribe (deed writer / advocate) cannot be called witness because they have

signed the Will in column of drafted by. Thus, two independent attesting

witnesses other than the scribe are necessary.

(e) Beneficiary under a Will should not sign as attesting witness.

In order to avoid disputes in implementation of a Will, description of property

and the name of the beneficiaries should be clearly written so that there is no

room for doubt.

Is it compulsory to register a Will?

Answer- No. It is not compulsory to register a Will. The testator may register a

Will at his option. It is better to register the Will so that if original Will is lost; a

certified copy can be obtained from the record in Sub-Registrar Office.

Where can a Will be registered?

Answer- A Will can be registered in the office of any Sub-Registrar within India.

Is there any time limit to register a Will?

Answer- No. There is no time limit as such to register a Will from the date of its

execution.

Can a Will be cancelled?

Answer- A testator can cancel his Will at any time during his life time.

Can a registered Will be rectified or changed?

Answer- If the executant of a Will wishes to rectify, amend a Will, he may do so

during his lifetime. Such a document is called a Codicil.

Can a Will be registered after the death of the testator?

Answer- Yes, a Will can be registered after the death of the testator. The Party

claiming under the Will shall have to produce the original Will along with record

relating to the death of the testator, the witnesses and the document writer before

the Sub- Registrar for examination about the execution of the Will. If the Sub

Registrar is satisfied that the Will has been executed by that person and the person

is genuine, he will register it. For details, please see Chapter VIII Section 40 and

41 of the Registration Act, 1908)

Kishan Dutt Kalaskar
Advocate, Bangalore
6069 Answers
392 Consultations

4.8 on 5.0

The Will, once there was a dispute in this regard, should have been probated through a court of law.

The documentary evidences in your possession cannot substantiate your claim for valid adoption.

You can fight your case for probate of will on the basis of your and maintenance of the testator.

The ration card will be of good support to your pleadings.

You should discuss proper strategies with your Advocate.

T Kalaiselvan
Advocate, Vellore
79241 Answers
1618 Consultations

5.0 on 5.0

Supreme Court of India

Lakshman Singh Kothari vs Smt. Rup Kanwar on 22 March, 1961

Equivalent citations: 1961 AIR 1378, 1962 SCR (1) 477

Author: K Subbarao

Bench: Subbarao, K.

PETITIONER:

LAKSHMAN SINGH KOTHARI

Vs.

RESPONDENT:

SMT. RUP KANWAR

DATE OF JUDGMENT:

22/03/1961

BENCH:

SUBBARAO, K.

BENCH:

SUBBARAO, K.

DAYAL, RAGHUBAR

CITATION:

1961 AIR 1378 1962 SCR (1) 477

CITATOR INFO :

R 1970 SC1286 (9)

F 1983 SC 114 (20)

ACT:

Hindu law-Adoption-Validity-Essential requirements-Ceremony

of giving and taking-Delegation of authority.

HEADNOTE:

In order that an adoption may be valid under the Hindu Law

there must be a formal ceremony of giving and taking. This

is true of the regenerate castes as well as of the Sudras.

Although no particular form is prescribed for the ceremony,

the law requires that the natural parent shall hand over,

the adoptive boy and the adoptive parent must receive him,

the nature of the ceremony varying according to the

circumstances. After exercising their volition to give and

take the boy in adoption, the parents may, both or either of

them, delegate the physical act of handing over or receiving

to a third party.

Consequently, in a case where the natural father merely sent

the boy in another's company to the house of adoptive father

who received him but there was no delegation of the power to

give in adoption or the ceremony of giving and taking,

Held, that no valid adoption bad taken place.

Ajay Sethi
Advocate, Mumbai
89083 Answers
6362 Consultations

5.0 on 5.0

Smt. Chandan Bilasni v. Aftabuddin Khan and Ors., AIR 1996 Supreme Court 591.. In the said case, adoption was by an old lady of 86 years. She could not be produced in Court for giving the evidence. However, other three witnesses who were present at the time of adoption ceremony were examined. One of them was priest and other was a person who was present at the time when the deed of adoption was executed by the adoptive mother. After considering the entire evidence on record, the Hon'ble Judges of the Supreme Court came to the conclusion that adoption had taken place by the ceremony of giving and taking.

Ajay Sethi
Advocate, Mumbai
89083 Answers
6362 Consultations

5.0 on 5.0

The same will not effect your case.

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

Notary entry in Register is important if he is called for cross examination it will be an issue for validity.

Prashant Nayak
Advocate, Mumbai
28103 Answers
93 Consultations

4.4 on 5.0

The acquisition of property through a will is valid provided that the will is probated.

What are you going to do with the judgment and whom, are you going to show the same, first you file for a probate of will if y have one.

Dont worry about the notarisation of the will, you can seek grant of probate to establish the same

T Kalaiselvan
Advocate, Vellore
79241 Answers
1618 Consultations

5.0 on 5.0

Dear Sir,

Unregistered Will is acceptable provided one of the two witnesses signed on it must be examined before the Court. However since it was not found on the live register maintained by concerned notary as such Will can be considered as created Will. Whenever a notarized document like Will is to be marked it must be established that it was duly singed in the presence of notary and signature of executant of Will must also appear in corresponding entry in the corresponding register which is mandatorily required to be maintained by the concerned notary. You are saying that it is not found in the register. Take a plea that it is a concocted and created document and not allowed to be admitted in the Court. File an application calling for notary register to show that there is no corresponding entry.

Kishan Dutt Kalaskar
Advocate, Bangalore
6069 Answers
392 Consultations

4.8 on 5.0

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