• Property dispute

Dear Sir,

I have come across a problem on property dispute.  The case is like this: Father (F) has two wives (W1 and W2). F married W2 after the death of W1. F has one son S1 from W1 and one son S3 from W2.  

There was a sister (X) to W2. X married Y and had a son (S5). After the death of X due to illness, Y decided to give his only son (S5) to F & W2, which they also agreed. The name of S1 is the same as S5. There was no official document for F & W2 taking ownership of S5 due to legacy system prevalent at that time. From the age of 1 year approx., S5 is living with F & W2. In all the records of school, college etc., F & W2 are the parents of S5. 

F & W2 had some properties in their respective names. F & W2 made gift settlement deeds (registered) to their children including S5 (S5 is now 54 years old), though not in equal proportion, out of love and affection. In the agreement, it is indicated that “I give this property to my son S5, residing in the same address,……..”. Copy of ration card indicates the names of F, W2, S5 etc. The intentions of F & W2 are to give part of their property to S5. S3 is the witness in the agreement. Now both F & W2 are in heaven.

Recently, son of S1, has registered to his son, the same property given to S5, claiming it as his property as the coincidence of the name of S5 with S1. S1 is deceased now. Son of S1 says that S5 is not the son of F & W2 (as he is the true son of X and Y) and S1 is the son of F & W1 and hence he has the rights. 

Please provide your advice POINT-WISE on the following:
1.	Can S5 be treated as “adopted son” as per law as he was living with F & W2 for over 50 years?
2.	Is it valid as per law for W2 giving her property to S3 and S5 without giving anything to S1 as W2 is entitled to give her property to anybody she wants even without anything to S1, S3 and S5?
3.	Legal validity of the claim by son of S1.
4.	Legal standing of S5 with case laws and clauses, if any, with course of actions required by S5.
Asked 1 year ago in Property Law from PROPERTY DISPUTE, Tamil Nadu
Religion: Hindu
1) you had raised this query earlier too which had been duly replied to . 

2) in the present case there is no formal deed of adoption executed  by father Y in favour of F and W2.in respect of son S 5 

3) however in school college records of S 5name of parents is shown  as F and W2. 

4)To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony; M. Gurudas v. Rasaranjan , AIR 2006 SC 3275.

5)in addition section 11(1) of HindU adoption and Maintenance act 1956 provides that for adoption to be valid adopted father at time of taking in adoption must not have a hindu son living at the time of adoption . 

6) in the present case adopted father already had a hindu son S1 from  W1 and another son S 3 from W2 

7) hence merely because S 5 was lving with F and w2 would not be sufficient for s 5 to be regarded as adopted son . 

8)  F and W2 can execute gift deed in respect of their self acquired property to any one they  so desires . it is not necessary for w2 to give any share to s1 , S 3 and S 5. 

9)claim of son of S1 is not valid . father and W 2 can transfer  property to S 5 by gift deed even if he was not adopted out of natural love and affection 

10) S 5 will have to move court to set aside gift deed executed by son of S1 in favour of his son as the S1 son had no rights on said property which had been transferred to S 5
Ajay Sethi
Advocate, Mumbai
23380 Answers
1227 Consultations
5.0 on 5.0
1. It seems that there was no legal adoption of S5 by F and W2. Mere incorporation of F and W2's name as the parents of S5 in various documents does not make them his parents.

2. If F and W2 made a gift deed in favour of S5 of the properties owned by them then the gift deed would take effect. S5 has become the owner of the properties gifted to him.

3. The registration made by son of S1 in favour of his son is illegal as he could not have transferred the properties which were not owned by him. S5 should challenge the registration in the court to preserve his properties. 

4. The fact that S5 is not the adopted son of F and W2 does not invalidate the gift deed made in his favour. F and W2 were within their right to gift their properties to S5. S5 should immediately go to court lest delay impairs his legal recourse.
Ashish Davessar
Advocate, Jaipur
18246 Answers
450 Consultations
5.0 on 5.0
1. There should have been an adoption deed for establishing the parental identity of S5. It is not there. So, he can not be treated as an adopted son of F & W2,

2. The owners of the property, F & W2 herein, can give his/her/their prioperty or its ahare to anybody he/she likes to,

3. The claim of S1 is valid since F & W2 have bestowed their part of  property to S1 being their son, whose name is similar to S5 eho os not a biological or adopted so0m of F & W2,

4. S5 shall have to prove that he was an adopted  son of F & W2, whose deed was not registered by F & W2 doe to ignorance.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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