WHO WILL SUCCEED TO JAYALALITHA’S PROPERTIES?                                        

        Jayalalitha’s  election affidavit filed in April 2016 revealed that she owned assets worth Rs 113.73 crore of which movable and immovable assets were worth Rs 41.63 crore and Rs 72.09 crore respectively. Jayalalithaa also had Rs 41,000 cash in hand and liabilities worth Rs.2.04 crore. She had declared agriculture in the profession column. Now the question is: Who will succeed to these properties? 

      If Jayalalitha has left any Will the succession will take place according to the Will.  If she has not left any Will, the succession will take place as per the provisions of the Hindu Succession Act since Jayalalitha died as a Female Hindu.

       The International Business Times reported on December 7,  2016 as follows:-

    “Sasikala Natarajan, confidante and close friend of the late Tamil Nadu Chief Minister J Jayalalithaa, and her family are likely to inherit the deceased leader's property worth Rs 113.73 crore. Jayalalithaa had reportedly drawn up a will a couple of years ago that stated that the Poes Garden house called 'Veda Nilayam' would go to Sasikala if the former passed away. The Kodanad estate in the Nilgiris, Jaya Publications, Sasi Enterprises and other businesses in which Jayalalithaa and Sasikala were partners would also go to the surviving partner.The farmland that Jayalalithaa owned in Hyderabad would go to Vivek Jayaraman, son of Ilavarasi and Jayaraman (Sasikala's brother), according to a report published in the Telegraph.”

      First, let us examine the issue assuming that Jayalalitha has not left any Will.  The succession will take place in accordance with Sections 15 and 16 of the Hindu Succession Act which read as follows:

“15. General rules of succession in the case of female Hindus:

 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 : (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. ……..

16. Order of succession and manner of distribution among heirs of a female Hindu: The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate’s property among those heirs shall take place, according to the following rules, namely:- Rule 1- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those including in the same entry shall take simultaneously. Rule 2- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death. Rule 3-The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death”.

        Jayalalitha has not left (i) sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) heirs of the husband; (c) mother and father; Therefore the heirs of the father is in the next order of succession.  “Heirs of father” means Jayalitha’s brothers and sisters.  She had no sister but had a brother who is no more. Her brother has left a son and a daughter. As per Rule 3 mentioned above, Jayalalitha’s brother’s son and daughter will succeed to the properties.

        Now, assuming that Jayalalitha has left a Will, the succession will take place as per the Will. Under Section 17 of the Registration Act, 1908 registration of Will is not mandatory but it is only optional.  Therefore, an unregistered Will is also valid.

        Under Section 30 of the Hindu Succession Act, “Any  Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus”.

       A combined reading of Sections 57 and 213 of the Indian Succession Act, 1925 makes it profoundly clear that where the Will was executed by a Hindu within the Ordinary Original Civil Jurisdiction of the High Court of Madras or the properties covered under the Will are located within the Ordinary Original Civil Jurisdiction of the High Court of Judicature at Madras as dealt under Clauses (a) and (b) of Section 57, the executor or the legatee under the Will is bound to approach the said court for grant of probate or letters of administration failing which the right as executor or legatee cannot be established in any of the courts of law.

          Therefore the executor or legatee has to approach the High Court, Madras for grant of Probate or Letters of Administration. In an Application for Grant of Probate or Letters of Administration public notice has to be issued inviting objections if any, for grant of the Probate or Letters of Administration. If anyone objects to the grant and disputes the claim, the Application will be converted as a Testamentary Original Suit and the claim will have to be proved as any other claim in a regular suit involving trial and examination of witnesses. It should be proved that at the time of executing the Will, the testator was in a sound disposing mind and that she put her signature in the Will out of her own free will and that she had signed it in the presence of the witnesses, who attested it in her presence and in the presence of each other. If the Will is proved, the beneficiaries mentioned in the Will shall get the properties.

        If there is no Will and no heirs, Section 29 of the Hindu Succession Act will apply. Section 29 states: “If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subjected.”

                                         - P.Rajendran, Advocate

ADOPTED CHILD'S PASSPORT

     -P. RAJENDRAN, Advocate 

       In the case of an adopted child, is it the name of the biological father or the name of the adoptive father that should find a place in the child’s passport against the column “name of father”? In some cases, it so happens that after the marriage of the biological parents is dissolved by a decree of divorce and the biological mother takes the custody of the minor child and after some time she re-marries and gives the child in adoption to  the second husband (without the consent of the first husband) and the name of the child is changed and a notification is published in the official gazette to that effect and  while applying for passport for the child the name  of the adoptive father is given against the column “name of father” and thus a discrepancy  arises between the name of the biological father as found in the Hospital Records and in the Birth Register Extracts  and the name  indicated in the application form and the passport office rejects the application. What is the way out?    

  Under Section 7 of the Hindu Adoptions and Maintenance Act, 1956, a male Hindu who wishes to take a child in adoption, shall not adopt, except with the consent of his wife, unless such wife has completely and finally renounced the world or ceased to be a Hindu or has been declared by a competent court to be of unsound mind. Under Section-8 of the Act, the mother may give the child in adoption if the father is dead or has completely and finally renounced the world or ceased to be a Hindu or has been declared by a competent court to be of unsound mind. The Explanation to Section 9 of the Act declares that the expressions “father” and “mother” do not include adoptive father and adoptive mother.   Section 12 of the Act deals with the effect of adoptions and as per the said provision, an adopted child shall be 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 from such date 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,  provided that- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) 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; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. Therefore the fundamental premise on which the Hindu Law of Adoptions proceeds is that the relationship between the biological parents and the child can never get severed, except in accordance with the above said provision of the Act.

        It is clear from the above discussion that there should be a valid adoption in order to sever the relationship between the biological parents and the child.  Valid adoption is the one done in accordance with the above mentioned provisions and other provisions of the Act.  If the adoption is not valid as per the said Act, then the relationship between the biological parents and the child continues and in such cases the name of the biological father can never be replaced with that of the adoptive father. If there is a valid adoption, the name of the biological father can be replaced with that of the adoptive father.

         In view of the said legal position, the Madras High Court has suggested that the Ministry of External Affairs, Union of India may incorporate suitable provisions in the Passport Manual and incorporate suitable columns in the applications for the issue of passports, to enable the parties to indicate either the names of the biological parents or the names of the adoptive parents or the names  of the step parents or all of them and it can be left to the will of the parties either to indicate the names of one or more of the biological parents along with the name/names of the adoptive or step-parent/ parents or to indicate the names of all.  Let us hope that the Ministry will take the said suggestion seriously and make necessary changes and come to the rescue of such adopted children.