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Calcutta High Court · body

2002 DIGILAW 40 (CAL)

Shyamal Majhi v. Eastern Coal Fields Limited

2002-01-28

DILIP KUMAR SETH

body2002
JUDGMENT The petitioner claimed appointment under Dying-in-harness category on account of death of his adoption mother, who was in employment of the respondent employer. Since employment was not given, the petitioner moved a writ petition, being W.P. No. 14217 (W) of 1998 disposed of on 2nd April, 2001. This Court, while disposing of the same, directed the respondent authorities to consider the case of the petitioner. By an order dated 17th September, 2001, the petitioner's case was rejected on the ground that he was not validly adopted. It is this order, which is under challenge. 2. Mr. Abhijit Banerjee, learned Counsel for the petitioner, points out that the respondent authorities are not competent to declare an adoption invalid, until and unless there is a declaration by a Court. Such his is available between the members of the family and not to a third party. A third party cannot question the validity of an adoption. Many other points were also raised, which is not necessary to be gone into in this case. 3. Mr. Aloke Banerjee, learned Counsel for the respondents, on the other hand, contends that if on the face of it, it appears that the adoption was not validly made, it is open to the respondents to take note of it. In fact, a special privilege is being sought for on the strength' of such adoption. The adoption is the qualification, under which the privilege is being claimed. If the foundation of claiming privilege falls through, he cannot claim such privilege. Therefore, the basis of the claim can be gone into. He points out that under Section 10 and Section 11 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the 1956 Act), certain provisions are required to be complied for a valid adoption. In the present case, on the face of it, and even on the admission of the petitioner himself, as pointed out by him, the said provisions were infracted. Therefore, it was open to the respondents to deny employment, on the basis of which it was so claimed. 4. After having heard the learned Counsel appearing on behalf of the respective parties, it appears that the question is required to be examined having regard to the Law of Adoption. Hindu Adoption and Maintenance Act, 1956 governs the question of adoption by a Hindu. 4. After having heard the learned Counsel appearing on behalf of the respective parties, it appears that the question is required to be examined having regard to the Law of Adoption. Hindu Adoption and Maintenance Act, 1956 governs the question of adoption by a Hindu. Admittedly, in the present case, the parties are Hindus and governed by the 1956 Act. Section 4 of the 1956 Act provides an overriding effect. All adoption is to be regulated by Chapter-II. According to the Section 5, no adoption can be made after commencement of 1956 Act by or to a Hindu, except in accordance with the provisions contained in Chapter-II. Any adoption made in contravention of the said provision shall be void. A void adoption does not create any right. Section 6 prescribes that no adoption shall be valid (i) unless the person adopting, has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in Chapter-II. All the four conditions or requisites are cumulative. Each of them must be complied with (1) Dhanraj v. Suraj Bai, AIR 1973 Rajasthan 7. Violation of any of the conditions would make the adoption invalid. There is no scope for application of the doctrine of fuctum valet (2) Lallan Ram v. Gobri Ram, AI R 1972 Allahabad 540. Section 10 prescribes that no person shall be capable of being taken in adoption unless the following conditions are fulfilled viz. : (i) he or she is a Hindu ; (ii) he or she has not already been adopted; (iii) he or she has not been married .................. ; (iv) he or she has not completed the age of fifteen years, unless custom of usage applicable to the parties, permits it. No such custom or usage has, however, been pleaded in this case. We are now concerned with Clause (iv) above. A person exceeding fifteen years of age, cannot be taken in adoption. In terms of Section 11, certain other conditions are also required to be fulfilled for a valid adoption; we may not be concerned with the other conditions laid down therein. We are now concerned with Clause (iv) above. A person exceeding fifteen years of age, cannot be taken in adoption. In terms of Section 11, certain other conditions are also required to be fulfilled for a valid adoption; we may not be concerned with the other conditions laid down therein. We are concerned with Clause (iv) of Section 11, which prescribes that if the adoption is made by a female and the person to be adopted is a male, then the adopted mother at least be older by 21 years than the person to be adopted. 5. In the present case, it is alleged that the adoption has not been validly made in view of infraction of Sections 10 and 11 of the 1956 Act. As observed earlier, an adoption made in contravention of the provision contained in Chapter-II, which consists of Section 5 to 17, is void. Four conditions for valid adoption have been laid down we are concerned with three out of four clauses, contained in Section 6, which is not being disputed by the respondents. Clause (i) requires the capacity and right of the adoptive ; Clause (iii) deals with capability of the adoptee and Clause (iv) deals with compliance of other conditions mentioned in Chapter-II. In the present case, the capacity and right of the adoptive is not in dispute. The capability of the adoptee is in dispute. It is alleged that he had exceeded fifteen years. As such, he is incapable of being taken in adoption. Section 10 prohibits adoption of a person having completed the age of fifteen years. The other conditions mentioned in Section 10 are irrelevant for our present purpose. With regard to Clause (iv) of Section 6, the other condition that has not been complied with is Clause (iv) of Section 11, which prescribes the other conditions. We are only concerned with Clause (iv), which requires 21 years difference between the adoptive and adoptee, if they are female and male respectively. In the present case, it is alleged that the difference of age between the adoptive and adoptee was less than 21 years. 6. The conditions, which are mentioned, are all to be complied with. The tests that are laid down are all to be satisfied. Infraction of any of the tests or non-compliance of any of the condition would render the adoption invalid by reason of Section 6. 6. The conditions, which are mentioned, are all to be complied with. The tests that are laid down are all to be satisfied. Infraction of any of the tests or non-compliance of any of the condition would render the adoption invalid by reason of Section 6. In view of Section 5, an invalid-adoption is a void adoption. But, however, Section 16 prescribes a presumption, when a registered document is produced, of validity of the adoption about the capacity of the person of giving and taking in adoption and that all the conditions for adoption have been complied with, unless contrary is proved. However, such presumption is rebuttable. The burden of rebuttal is on the person, who disputes it. 7. In the present case, a registered deed having been produced, a presumption of validity is to be presumed, But, where on the face of the document, there is nothing to dispute, the presumption can ensue. But, in a case where there are admitted facts contrary to the document, there is no scope for such presumption. If the adoptive or adoptee, who would be affected, in the absence of presumption, themselves admit and the facts are not in dispute, then the person, who wants to dispute, is not called upon to disprove or rebut the presumption. 8. From the facts disclosed in this case, we may examine hereinafter as to how far the presumption could be drawn and how far the respondents could determine the question of the adoption being invalid or void. In view of Section 5, if there are ingredients, which are not in dispute, to show that the adoption was invalid and, therefore, void, then there is no question of presumption of validity. 9. It, on admitted facts, the conditions appear to have been admittedly infracted, then by reason of Section 5, the adoptee cannot claim any benefit out of such void adoption. Inasmuch as, a void adoption does not create any right in the adoptive family in favour of any person, which he or she could not acquire, except by reason of adoption. Thus, in case it is found that the adoption was invalid, then the petitioner cannot asserts his right, which he could have asserted by reason of his adoption. In other words, he could not have claimed to be a member of the adoptive family, unless the adoption was valid. 10. Thus, in case it is found that the adoption was invalid, then the petitioner cannot asserts his right, which he could have asserted by reason of his adoption. In other words, he could not have claimed to be a member of the adoptive family, unless the adoption was valid. 10. In terms of Section 11 of the 1956 Act, there must be 21 years difference between the adopted son and the adoptive mother, when the adoption is made by the mother. The document that has been produced does not show that there was a difference of 21 years, in between the petitioner and his adoptive mother. The petitioner himself had admitted that at the time of adoption, the mother was aged about 26 years and he was 17 years. However, as pointed out by Mr. Abhijit Banerjee, there might be• some discrepancies. The record produced show that the mother of the petitioner was appointed on 27th May, 1982 when she was 25 years old and the adoption was made in 1988 when her age would be 31 years. Even if the petitioner is presumed to be 15 years old, still then, the difference would be 16 years. This will not satisfy the difference of 21 years, as contemplated in Section 11 of the 1956 Act. Therefore, there would be an infraction of Section 11 of the said Act in the question of adoption. If adoption fails, in that event, petitioner cannot claim, on the strength of such adoption, appointment under the Dying-in-harness Rules. 11. Whether the employer can look into it, is a question, which now requires examination. In case, any right or privilege is claimed by virtue of such adoption, in that event, the person from whom such right or privilege is claimed, is entitled to examine the validity of the adoption, having regard to the presumption available under Section 16 of the 1956 Act. Despite giving credence to Section-16 of 1956 Act, if on admitted facts and having been admitted, particularly, by the adoptee, there are sufficient ground, which is not in dispute, and which does not require any determination, and is admitted on fact, then the person, from whom such privilege, preference or right is claimed, has every right to examine as to whether the person, claim 19 such privilege or right or preference, is entitled to it. 12. 12. In fact, it is a special privilege made available to persons, where one of the parents die in harness. In order to avail of such special privilege, certain perticular qualification has to be fulfilled, viz. : that he or she was a member of the family and dependant upon the deceased and is unemployed. The membership of the family is also restricted to the extent as prescribed in the rules. It includes wife, children and children of deceased children, who were dependant upon the deceased and are not in employment. Unless a person satisfies such qualification, he cannot claim the privilege. Such privilege is being given by the employer. Therefore, employer has every right to examine, whether the foundation for claiming privilege is, existing or not. 13. In case, it does not involve determination of any disputed question of fact and on the face of the record, it is apparent that the test for claiming such privilege is not being fulfilled, the employer may very well examine the same, unless it involves the determination of disputed question of law or fact. 14. In the present case, on the face of the record, it appears that there could not have been any valid adoption under the law of adoption, even on the basis of admitted position, as recorded in the impugned order. Therefore, it is well within the competence of the employer to look into it. Unless one satisfies the conditions, one cannot claim such privilege, which 'is otherwise not available as of right. It is only a kind of privilege, persons, who takes advantage over others" even at the cost of Articles 14 and 16 of the Constitution of India, must show that they are entitled to such privilege or right. Such privilege can be restricted and may be made available within certain relation that has been laid down in order to avail such privileges. 15. Even from the record produced by Mr. Abhijit Banerjee, it appears that in the column of the date of birth of the mother of the petitioner, 25 years was recorded on 27th May, 1982. If this age of 25 years is taken to be as in 1982, in that event, the age of the petitioner recorded as 16 in such document is also to be taken as on 1982. Then the petitioner will become 22 years on 1988. If this age of 25 years is taken to be as in 1982, in that event, the age of the petitioner recorded as 16 in such document is also to be taken as on 1982. Then the petitioner will become 22 years on 1988. However, the deed of adoption refers to the fact that the adoption was made earlier. Even if it is accepted that at the time of adoption, the petitioner was below 15 years, still then the difference of age, being less than 21 years between the adoptive mother and the son, will not permit adoption. Therefore, there are so many discrepancies, by reason thereof, it is very difficult to presume the presumption under Section 16 of the 1956 Act, and accede to the proposition, as sought to be propounded by Mr. Abhijit Banerjee. 16. In the circumstances, I do not find any reason to interfere with the order impugned. The writ petition, therefore, fails and is, accordingly, dismissed. There will be no order as to costs.