Pre Act Law:
Adoption has been spoken of as new birth nor is this expression a mere figure of speech.
The theory involves the principle of a complete severance of the child adopted from the family in which he is born and complete substitution into the adoptive family, as if he is born in it; while the adopted son acquires the rights of a son in the adoptive family he loses all the rights of a son in his natural family including the right of claiming any share in the estate of his natural father or natural relations or any share in the coparcenary property of his natural family. An adopted son could not retain his name after having been given in adoption nor could he carry any property with him.
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Dvyamushyayana or Son of Two Fathers:
ADVERTISEMENTS:
This kind of son provided an exception to the above rule. Where a person gives his son to another under an agreement that he should be treated to be the son of both natural and adopted fathers, the son so given in adoption is called “dvyamushyayana”. In this form of adoption the child inherits both in his natural and adopted families. Where a person gives his only son in adoption, the adoption must be presumed to be in the Dvyamushyayana form; unless it is proved that the adoption was in the ordinary form.
It is not necessary that the adopted father and the natural father should be brothers. Such an adoption is the consequence of an agreement. On the death of Dvyamushyayana his property is taken jointly and equally by the adoptive and natural father or mother.
The adopted son becomes entitled to inherit the property from his adoptive father, grandfather and great grandfather in the same manner as if he were born in the same family. He could claim heir-ship in the property of the relations of the adoptive father and thus could be a coparcener along with them.
Where the adoptive father has several wives, the adopted son could inherit the property of that wife who had participated in the act of adoption along with her husband.
ADVERTISEMENTS:
Where any son was born to the adoptive father after he had taken the son in adoption, the adopted son did not become entitled to the equal share along with the subsequently born natural son. He could take—
1. In Bengal 1/3 of the adoptive father’s estate;
2. In Banaras 1/4 of the estate;
3. In Bombay and Madras 1/5 of the estate.
ADVERTISEMENTS:
If the estate was an impartible one then the natural son could only inherit it.
If the father adopts a son during his life time, the adoption takes effect on date of adoption. But if the widow adopts a son after the death of her husband the adoption takes effect from the date of death of the husband, though adoption is done after such a date.