THE DOCTRINE OF FACTUM VALET
The maxim “Quod fieri non debris factum valet or the Doctrine of Factum Valet”, is a Latin maxim, which means ‘what ought not to be done is valid, when done” . After adoption, the child becomes the aurasa (naturally born son of the adoptive parents) and also gets disqualified to perform ‘Sradha Karina, Pinda Karma, or Kanyadan' of his natural parents.
In case, there is no other person competent to perform the ceremonies, shastras permit the adopted son to perform the Sradha Karma , Pinda Karma and Kanyadan. This is known as ‘Factum Valet’. This doctrine was recognised both by the Mitakshara and Dayabhaga Schools.When there is a rule, which governs an act (not to be done) and the act is done, it cannot be rendered invalid. This doctrine does not have universal application since every prohibited act, when done cannot be ratified. Under the Hindu Law, this doctrine gets recognition mainly in the Law of Marriage and Law of Adoption. Non-compliance of certain
things relate to a moral precept, then the violation does not vitiate the proceedings.
Eg.:— Marriage overlooking age limit; marriage of a minor without the consent o f the guardian. But where a violation relates to an imperative provision of law' viz, incapacity, non-compliance of essential ceremonies (Homa, Saptapadi) renders the marriage void and the doctrine does not apply in such cases. There may be other ceremonies, which are not essential. If they are omitted, such omission is cured (saved) by this doctrine. The doctrine applies where there is no fraud or force
ANTE-ADOPTION AGREEMENT
Ante-Adoption Agreement means “An agreement before the Adoption. It is entered into between the natural parent (person giving I he child in adoption) and the adoptive parent (person taking the child in adoption) before the adoption in regard to the rights of the adoptive child in the property of the adoptive parent. It protects the interests of the child (to be given in adoption) in regard to the property of the adoptive parent. Section 13 of the Hindu Adoptions and Maintenance Act, 1956 makes provision for the Anti-Adoption Agreement.
Before adoption, the adoptive father, being the sole surviving coparcener, can alienate the property by will or by a transfer inter vivos (i.e. transfer between the two living persons). If so, the adoptee (adopted child, who becomes a coparcener after the adoption) cannot question the alienation by the adoptive lather. If the property alienated is the self-acquired property of the adoptive father, the adopted child cannot question the alienation even after the adoption.
The difficulty as to the right of alienation of the adoptive father arises, if the property is ancestral and the alienation is made after the adoption (i.e. the boy acquires the status of coparcener on adoption. ' the child is a female, she also becomes coparcener in Andhra Pradesh in pursuance of the A.P. Amendment Act, 1986). To obviate such situation, the adoptive parent to protect his interests, may resort to enter into an agreement with the natural parent before taking the child in adoption. Such agreement is called the “ante-adoption agreement” (designed to protect the interest of the adoptive father).
CASE COMMENT
Problem-1; ‘A’, a Hindu male died in 1953, leaving behind his widow, ‘W’ without children. ‘W’ inherited the properties of her deceased husband. In 1954, ‘W’ made a gift of some land from the husband’s property to her grand-niece *N\ which was challenged by her husband’s collateral, ‘C’. ‘C* sued for possession of the land. The trial court decided in favour of ‘C \ ‘N’ preferred an appeal. While the appeal was pending, ‘W ’ adopted a son ‘S ’ in 1959 and died in the same year - Decide.
Ans. The instant problem relates to “the Doctrine of Relation Back” from the ‘effects of adoption’ and attracts Sec. 12(c) of the Hindu Adoptions and Maintenance Act, 1956.The relevant leading case of the problem is Sawanram vs. Kalawati 1967 SC 1761.The doctrine of Relation Back gives retrospective effect to the adoption. (Write now in brief about the doctrine of relation back).
According to Sec. 12(c) of the Hindu Adoptions and Maintenance Act, 1956, the adopted child shall not divert any person of any estate, which rested in him or her before the adoption. Write now Sawanram’s case in detail as explained under the doctrine of relation back. In view of the above, the adoption by ‘W’ in 1959, shall have the retrospective effect from the date of the death of ‘A’. Further, ‘S’ (adopted son) cannot divert any estate, which had vested in ‘W’ prior to his adoption. Therefore, the gift of the land by ‘W ’ to ‘N’ is valid.
Problem-2: Sujatha, an unmarried woman adopts a daughter, Sudha. Later, Sujatha married Krishna and has a son by him. Krishna dies leaving the property. Who succeeds his property? Why?
Clues: Under the Hindu Adoptions and Maintenance Act, 1956, a female child also can be adopted and an unmarried woman can adopt. Hence, the adoption of Sudha by Sujatha is valid. (Write (i) the requisites of valid adoption under Sec.6;(ii) the capacity of a female to take in adoption under Sec.8).
Sudha being the step daughter of the deceased (Krishna) cannot inherit The son, being a Class-I heir succeeds to the property. (Also write the relevant provisions under the Hindu Succession Act, 1956 (Ss. 8 to 13).
