If the alienation is sought to be made after the adoption there is a difficult for the adoptee would have become a coparcener. In this situation, the adoptive father might seek to protect his interests by entering into an agreement with the natural father or mother of the adoptive child before taking the child in adoption. Such an agreement is an ante-adoption agreement designed to protect the interest of the adoptive father.
Similarly, the adoptive father may be having self-acquired property which he can dispose of as he pleases even after adoption. The natural parent giving the child in adoption in such a case may seek to protect the interests of the child by curtailing the rights of the adoptive father by means of an ante-adoption agreement. The question arises as to what extent such agreements are valid.
Section 13 makes it clear that the adoptive father continues to have his power of disposal over his property in spite of the adoption. Whatever powers of disposal he would have before the adoption, he would continue to have even after adoption. This is however, made subject to “an agreement to the contrary”. This shows that an ante- adoption agreement may operate as a fetter upon the adoptive father’s power of disposition over his property.
Prior to this Act the validity of ante-adoption agreement was governed by the decision of the Privy Council in Krishnamurthi v. Krishnamurthi, 50 Mad. 508 (PC). There the adoptive father was the sole surviving coparcener who could will away the property. He executed a will and then made the adoption.
The natural father by an ante-adoption agreement agreed to the execution of the will by the adoptive father. It was held by the Privy Council that the adopted son was not bound by that agreement which curtailed his rights.
So he could claim to have become a coparcener and thereby disable the adoptive father from executing the will, which gave away part of the property to the testator’s relations and for charity. Under the present law the power of disposal, which the adoptive father had prior to the adoption, he would continue to have even after the adoption. So there would be no need now to have an ante-adoption agreement of this kind to protect the interests of the adoptive father.
There would be need now to protect the interests of the adopted son by curtailing that power of disposal of the adoptive father. Such an agreement would be perfectly valid since s. 13 is expressly made subject to “a contract to the contrary”. They were valid under the pre-Act Law also. Surendra Keshav v. Durgasundari, 19 Cal. 513 (PC).
The Privy Council pointed out in the above mentioned case 50 Mad. 508 (PC), that on the basis of the custom one kind of ante-adoption agreement may be upheld though it curtails the rights of the adopted son. That type of agreement is one, which confers upon the adoptive mother an interest in the adoptive father’s property only for her lifetime reverting to the adopted son on her death.
The Andhra Pradesh High Court has gone a step further and held that an ante-adoption agreement empowering the widow to hold absolutely a small portion of the property inherited from her husband is also valid provided it is fair and reasonable.
Under the present law the adopted son cannot divest any estate vested in anyone else. So the adoptive mother’s estate in her deceased husband’s property cannot be divested in consequence of the adoption. Hence there would be no need now for an ante- adoption agreement of this kind to protect the adoptive mother.
On the other hand, there would be need now by means of an ante-adoption agreement to protect the adopted child against the adoptive mother’s power to dispose of the property even after adoption. Section 13 shows that such an agreement would be valid.
Effect of Adoption on Testamentary Power of Adoptive Parent:
A sole surviving coparcener executed a will under which he authorised his wife to adopt a boy to him. Under the same will he gave certain property to his wife and also to his daughter. After his death his widow adopted a boy. Can he challenge the bequests (i) if the property bequeathed was the testator’s separate property; (ii) if it was his ancestral property? Would it make any difference if the testator himself made the adoption during his life-time?