"For the homes we build
And the families we make”
These words appear on the screen as Sharmeela Tagore starrer Gulmohar draws to a close. Fittingly so.
The movie, which has garnered critical appraisal for its representation of complicated yet unhindered love, love that remains unstifled by boundaries of kinship, education, and sexual orientation – is also on some level a story of expensive homes and expansive families.
A key aspect of the film is the question of a Will. A Will that instantly disowns Arun (Manoj Bajpayee) in a way that years of knowing that he was an adopted child has not.
Apparently, before his death Prabhakar Batra had left a Will bequeathing his big, palatial mansion to his brother Sudhakar.
Stumbling upon this Will comes as a great surprise to his adopted (and only) son Arun, because he has spent much of his life believing that he was the successor to the property. But pertinently, the repeated mention in the Will of him being ‘adopted’ and that being his father’s stated reason for bequeathing the property to his brother, is what really knocks the wind out of Arun’s sails.
But first things first: Is a Will of such nature, which visually appears to be just a regular sheet of paper, evidently unregistered, even enforceable?
Well yes.
The Indian law puts no restrictions on willing away self-acquired property, as no child has any claim on the property acquired (not inherited) by his parent. In this case Gulmohar Villa number 1 was one such property as Prabhakar had not inherited it but had bought it for himself.
Secondly, Section 63 of the Indian Succession Act defines execution of unprivileged Wills (ie those not made by a soldier or an ‘airman’ engaged in warfare or a mariner at sea etc) . As per this section, a Will has to be in adherence to a certain set of rules.
Wading through the legal-speak, what essentially becomes clear is that for a Will to be valid it primarily needs a testator (Prabhakar, in this case); his signature and the attestation of two witnesses (Prabhakar’s wife Kusum and brother Sudhakar).
Additionally, a Will has to be made without coercion, and Prabhakar claimed his was; stating intent, which was to leave the property to his brother after his wife’s death; reason for it: blood-lines; and details of the property: Gulmohar Villa number 1, he mentioned.
(Note: In the absence of a clear image of what was written in the Will, we are only going by what Arun read out to his family. Also nothing in this article is legal advice, but merely an explanation of a plot-point in a fictional film.)
But isn’t it essential to register a Will in India? Um, not quite.
Section 18 of the Indian Registration Act, 1908, makes it optional. So while, some lawyers might advise registration of the Will for benefits such as the availability of a copy in the registrar’s office and its continued applicability even if it is lost or tampered — remember the scene with the water-glass tipping? I’d have screamed! — It is not mandatory at all.
But could Sudhakar’s Will have been challenged in a court of law? Well, yes.
If Arun wanted he could have gone running to a court. But then whichever fancy lawyer he hired (because Gulmohar or not, he was moneyed!) would have had to argue on grounds such as fraud, coercion or undue influence; lack of testamentary capacity; suspicious circumstances etc.
And finally, it would have been the judge’s discretion.
But really, the Will was only a part of the conflict in the film. And Arun didn’t seem interested in approaching the court.
What really seemed to have been the thorn in his flesh — or the ache in his heart — was that he felt instantly delegitimised by that scrap of paper. He was cruelly reminded of the fact that Prabhakar wasn’t his biological father, that he had in fact been adopted.
But the Indian law perceives adoption differently from how Prabhakar may have. If he had not willed away his house, it would have flowed, in accordance with the laws of inheritance, to Arun and his mother’s embrace — just the way he had always presumed it had.
It does not at all matter that Arun was adopted. This is because adopted children have the same inheritance rights as biological.
So if Prabhakar died intestate (without a Will), his assets would have been distributed, in accordance with the Hindu Succession Act, to his legal heirs, which include his wife Kusum and (adoptive) son Arun.
And it is honestly, a relief that the law views adoption differently from how the Prabhakar-Sudhakar duo did. Arun was anyway swathing in wealth, running a successful business, bailing out family members in crisis, buying swanky Gurgaon apartments, but not every adoptive child is.
It is pertinent to recognise the rights of adoptive children as not being any different at all from those of biological children, because children rarely get to decide who they will grow up with. Besides in large, expansive families it wouldn't be fair for one child to get carrots and another one to get sticks.
The law expects those who build homes to look out for the families they make.
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