Report No. 6
44. Section 17(3).-
An oral authority to adopt is valid under the law, but if it is in writing other than a Will, it requires registration. The substantive law should be altered by providing that an authority can be conferred only by a writing, which should be registered except where the writing is a Will.
One of us, Dr. Sen Gupta, thinks that in view of the provisions of the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956) a widow does not need the authority of the husband to make a valid adoption. The position does not, however, appear to be clear having regard to the language of the Act; we have thought it advisable therefore to retain the provision.
45. Incidentally, a question as to age arises in connection with a Will. A Hindu can confer an authority to adopt even if he has not attained the age of majority of 18 or 21, as the case may be, under the Indian Majority Act. At what age he can make a Will is a question of substantive law. In our view, the age at which a Hindu would be competent to confer an authority to adopt shall be the same whether the authority to adopt is conferred by a Will or a deed.
46. It has been suggested that a deed of adoption should be made compulsorily registrable. But unless the substantive law is altered by providing that a registered instrument shall be required to effect an adoption so that the only evidence of an adoption can be a registered instrument, we do not think that such a provision can be appropriately enacted in the Registration Act. The document we have in mind is a document which merely receipts the factum of adoption and creates the status of the adopted son but does not declare or create interest in any specific properties.
It may be mentioned that the Hindu Adoptions and Maintenance Act, 1956, recently passed by Parliament, does not go so far as to provide that an adoption can be made only by a registered instrument but it offers an incentive towards registration by creating a presumption of a valid adoption in cases where the adoption is evidenced by a registered deed. Section 16 of the Act says-
"Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."
It would be easy to take another step forward and provide that adoptions shall be made only by a registered document.
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