• Remarriage and property title

I was a widow staying with my mother in law and my 7 years old daughter in Kolkata in the ancestral house of my previous husband of whose mutation has been done in the name of my mother in law and myself vide deed of partition entered between my previous deceased husband and his elder brother.
 I am also a CA and is working in a private Listed Company. I am also having certain moveable and immoveable property in my name which is self acquired. 
Recently I got married to an widower having a son of 15 years and a daughter of 13 years. My biological daughter and I am using the surname of my previous deceased husband in all our documents. We wish to retain the same surname. Further all the documents of my biological daughter is showing the name of my previous deceased husband as her father's name. Same is the case with the children of my present husband. In the both the children of my present husband the name of their mother is being shown as his previous deceased wife.
 I want to seek your advice on.

A. Are the children automatically adopted vide our marriage or is it mandatory to enter into an adoption deed. Can the name of the father and mother of the children be changed without adoption deed.

B. And what would be the scenario on the rights of the 3 children in the property of their previous as well as new father and mother if 
a. no adoption deed is entered
b.  if adoption deed is entered
  
C.  Will my rights and my biological daughter right on the vested property of my previous deceased husband extinguish post my re marriage.
Asked 1 year ago in Property Law from Kolkata, West Bengal
Religion: Hindu
1) after your second marriage your daughter is not automatically adopted by  your second husband . 

2) deed of adoption has to be executed by you in favour of second husband 

3) your second husband 2 children have no share in property standing in your name . 

4) you continue to have share in your deceased husband property even after remarriage . 

5) further your daughter will continue to have her share in property standing in your name and that of your deceased husband 

6) if your second husband adopts your daughter she would have share in her adopted father estate
Ajay Sethi
Advocate, Mumbai
23380 Answers
1227 Consultations
5.0 on 5.0
A. No, the children will have to be adopted by their step parents. In your case your husband can adopt your daughter but you can not without the permission of his ex-wife his children.

B.  Your daughter will inherit your property and his children their father's. If adoption deed is made then all the children will equally divide the properties left by both of you.

C. No, you and your daughter have already inherited the properties left by your deceased husband. The same will not extinguish on your remarriage.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Hello,

A) Children are not automatically adopted by virtue of the marriage. An Adoption Deed is mandatory to have children adopted so that they acquire their rights from the non biological or adoptive parent. An Adoption Deed is mandatory, on which basis the name of the parent can be changed on records.

B) a) If no adoption deed is entered into your daughter's right will remain limited to whatever she will inherit from you (Your property). She will have no right in the adoptive father who is your present husband. His two children's rights to property will be limited to their father's property; will not inherit your property.

b) If Adoption Deed is entered whereby each of you adopt each others' children, your daughter would become entitled to a share in your husband's property along with his biological children and his biological children will become heirs to your property along with your biological daughter if you die intestate( die without leaving a Wil behind)

C. Your biological daughter upon adoption will lose her rights over the biological father's estate.If the Deed of Partition has been registered and stamped you will not lose your rights in it.As ithas been registered in your name and that of your mother in law you both will have equal stake in it.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1. Your daughter  can continue the way she is mentioning her biological father's name,

2. The same can be done by your 2nd husband's children also,

3. It names of father's and mother's name of the children can not change automatically,

4. It is neither mandatory nor necessary, if you do not wish, to enter into an adoption deed,

5. The children will inherit the properties of their individual biological or adoptive parents,

6. No the right on the properties of biological deceased father of his daughter never extinguishes.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. The children are not automatically adopted. For you to adopt the children of your present husband and your present husband to adopt the children born out of your first wedlock the biological parent has to enter into a deed of adoption with the adoptive parent, albeit the name can be changed without an adoption deed.

2. If the adoption deed is made the children will cease to have any share in the property of their biological parent. 

3. Neither you nor your daughter get any vested property of your previous husband. Your rights, if any, in the property of your previous husband will abate after your remarriage. Your daughter will lose her rights only if she is adopted.
Ashish Davessar
Advocate, Jaipur
18246 Answers
450 Consultations
5.0 on 5.0
1) partition deed has to be duly stamped and registered to be admissible in evidence . 

2) The widow after her remarriage can still claim her inheritance right on the property of her deceased first husband as that right incurred to her before her remarriage i.e. at the time of the death of her first husband itself. 

3) on your second husband demise you would inherit his self acquired property as one of legal heirs . your second husband can by will bequeath it to whom sover he so desires 

4) pre nuptials have no legal sanctity 

5) for adoption of son he should be less than  15 years old .  However, if the
persons adopting belong to a Hindu  community which has a custom or
usage permitting persons who are married or have completed the age of
fifteen years to be also taken in adoption, then such an adoption is
also legal.
Ajay Sethi
Advocate, Mumbai
23380 Answers
1227 Consultations
5.0 on 5.0
1) deed of family settlement which provides for division of property by metes and bounds requires registration . it is necessary to peruse settlement deed to advice . if it is mere memorandum recording oral settlement arrived at between parties it would not require registration 

2) even if deed of family settlement is not registered it could be used for a collateral purpose, namely, for the purpose, of showing the nature and character of possession of the parties in pursuance of the family settlement 

3) registration of document can be done within maximum period of 8 months 

4) stamp duty varies in each state . check stamp duty act of your state 

5) deed of confirmation can be executed between the parties recording settlement arrived at between the parties
Ajay Sethi
Advocate, Mumbai
23380 Answers
1227 Consultations
5.0 on 5.0
1. On what basis do you claim the property to be ancestral?

2. If the property was ancestral then it could not have been transferred to you as wife has no share in the ancestral property of her living or deceased husband. The transfer can be challenged in and annulled by the court.

3. Similarly, you have no share in the ancestral or acquired property of your present husband. If he dies without a will then you will succeed along with his other heirs to his acquired property. 

4. You cannot enter into a nuptial agreement. How do you get the right to inheritance? Has a will been executed in your favour? You are free to gift or will your respective properties, if any, to each other. 

5. No you cannot adopt someone who is more than 16 years.
Ashish Davessar
Advocate, Jaipur
18246 Answers
450 Consultations
5.0 on 5.0
1. The deed is illegal if it transacts the ancestral property. No legal rights flow out of it. If any mutation has taken place thereunder it is liable to be held as illegal by the court. 

2. You can make a valid document in respect of a property to acquire or give up a right therein only if you are not forbidden by law to have a share therein. 

3. For registration all the parties have to appear. Alternatively, they can execute a POA in favour of anyone to appear before the registrar on their behalf. 

4. The deed, registered or unregistered, does not transfer the ownership if the property in question is ancestral.
Ashish Davessar
Advocate, Jaipur
18246 Answers
450 Consultations
5.0 on 5.0
1. Unregisterd partition deed has no value unless other share holders agree formit,

2. You will have no share of the property of your deceased husband after your remarriage. If you have already inherited any property of your deceased husband before your remarriage, it will stay with you.

3. Neither you nor your husband will have any right on each other's property, be it aelf acquired or ancestral, during the life time of their spoces. After the death of the spouce, the living spouce can claim his share alongwith the other legal heirs,

4. No.doption of children of age more than 15 years is not allowed to be adopted as per law.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. The settlement deed should have been registered to give it legal validity,

2. Atleast get it registered now as a fresh partition deed replacing your husband's name with his legal heirs,

3. You shall have to pay the stamp duty and registration fee for gettingb the aid settlement deed registered,

4. all he executants of the deed shall have to be present while registering the deed at the Registration ofice.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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