JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri Rajiv Nain Singh and Sri Raj Kumar, learned Counsel for the petitioner and Sri Neeraj Upadhyay, learned Additional Chief Standing Counsel who has appeared for the respondents. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of learned Counsel for the parties, the writ petition is being finally decided. 2. By this writ petition, the petitioner has prayed for quashing the order dated 21.4.2008, passed by the District Magistrate, Baghpat, rejecting the application dated 26.12.2006 submitted by the petitioner praying for a certificate of dependent of freedom fighter of late Bireshwar Sharma. The petitioner has also prayed for a mandamus, directing the respondent No. 1 to release/grant the family pension to the petitioner as dependent of freedom fighter. 3. Brief facts necessary for deciding the writ petition are; late Bireshwar Sharma was a freedom fighter. Bireshwar Sharma died in the year 1952 leaving behind his widow Smt. Shanti Devi and one daughter namely Smt. Savita Sharma. Shanti Devi, the widow of deceased freedom fighter was sanctioned freedom fighter family pension and was in receipt of said pension throughout her life. Shanti Devi died on 4.1.1998. The petitioner’s case is that prior to her death, Smt. Shanti Devi, adopted the petitioner and a registered adoption deed was executed on 28.10.1997. The petitioner is none other but son of Smt. Savita Sharma, daughter of late Shanti Devi. An application was made by the petitioner claiming grant of family pension to the petitioner after death of her mother Shanti Devi w.e.f. 1.1.1998. Along with the application registered adoption deed and the death certificate were also annexed. The Treasury Officer Meerut forwarded the application of the petitioner to the State Government vide letter dated 26.2.2005 which was returned by the State Government with the observation that the claim made by the petitioner may be got examined according to the Rajya Swatantrata Sangram Senani Pension Niyamawali, 1975 and then clear proposal be made available to the State Government. The District Magistrate again sent a letter dated 31.10.2007 for approval of grant of family pension to the petitioner. The State Government vide letter dated 8.2.2008 informed that Shanti Devi was residing in district Baghpat of which district the petitioner is also resident and the papers relating to family pension be transferred to the office of District Magistrate Baghpat from the Treasury office, Meerut. The State Government vide letter dated 8.2.2008 informed that Shanti Devi was residing in district Baghpat of which district the petitioner is also resident and the papers relating to family pension be transferred to the office of District Magistrate Baghpat from the Treasury office, Meerut. The letter further directed that the certificate of dependent of freedom fighter be issued after examining the adoption deed. After the letter of the State Government dated 8.2.2005, the District Magistrate passed an order on 21.4.2008, rejecting the application of the petitioner for issuance of certificate of dependent of freedom fighter. The District Magistrate in his order took the view that the petitioner could not have been adopted being daughter’s son. The petitioner has filed the writ petition challenging the aforesaid order dated 21.4.2008. 4. Learned Counsel for the petitioner challenging the impugned order contended that the District Magistrate committed error in taking the view that adoption of daughter’s son is prohibited under the provisions of Hindu Adoption and Maintenance Act, 1956. Learned Counsel for the petitioner submits that there is no such prohibition under 1956 Act. He further contends that the judgment of Rajasthan High Court in the case of Damodar Lal v. Lalli Lal and others, AIR 1985 Raj 55 , relied by the District Magistrate is not applicable in the facts of the present case since in that case Rajasthan High Court upheld the adoption of brother’s daughter’s son. Learned Counsel for the petitioner submits that in fact prohibition in adoption on the principle of Viruddh Sambandh was only recommendatory in nature as held by the apex Court in the case of Abhiraj Kuer v. Debendra Singh, AIR 1962 SC 351 . Learned Counsel for the petitioner submits that adoption being by a registered deed and there being no prohibition of adopting a daughter’s son, the District Magistrate committed error in rejecting the application of the petitioner. Learned Counsel for the petitioner further submits that Shastric Hindu Law even if the same provided for any prohibition of adoption of daughter’s son is no longer applicable in view of Section 4 of the 1956 Act giving overriding effect to the Act. 5. Learned Standing Counsel refuting the submission of learned Counsel for the petitioner contended that prohibition as contained in Shastric Hindu Law that daughter’s son cannot be adopted still continues. 5. Learned Standing Counsel refuting the submission of learned Counsel for the petitioner contended that prohibition as contained in Shastric Hindu Law that daughter’s son cannot be adopted still continues. He submits that section 4 had overridden only those Hindu Law or customs in respect of which any provision is made under the Act of 1956. He submits that there being no provisions in the Act pertaining to the aforesaid prohibition, the Shastric Hindu Law providing for prohibition of adoption of daughter’s son shall continue and District Magistrate has rightly rejected the claim. Learned Counsel for the petitioner further submits that in any view of the matter, the petitioner cannot be said to be dependent of freedom fighter so as to claim benefit of any family pension of a freedom fighter. It is submitted that freedom fighter, Bireshwar Sharma died in the year 1952, whereas the petitioner was born on 22.8.1990. There was no question of adoption by the widow on 28.10.1997 that is after 45 years of the death of freedom fighter, the petitioner can neither be said to be the dependent of freedom fighter nor is entitled for any benefit of the dependent of freedom fighter or the family pension as claimed. 6. We have considered the submissions of learned counsel for the parties and have perused the record. 7. The first question which needs to be answered in this writ petition is as to whether after the enforcement of 1956 Act, there is any prohibition of adoption of daughter’s son. Before coming to the provisions of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as ‘Act’), it is necessary to look into the Shastric Hindu Law as it existed prior to 1956 Act. 8. The principles of Hindu Law as contained and developed in Smritis and Dharmshastras, provided that adopted boy must bear the reflection of a son that is he could have been begotten by the adopter through Niyoga. There was unanimity in the scholars that prohibition at least extend to adoption of daughter’s son, sister’s son and the son of the mother’s sister. Maynes’ Treatise on Hindu Law and Usage (15th Edition) has categorically laid down the above mentioned prohibition in paragraph 187 which is quoted herein below : “187. There was unanimity in the scholars that prohibition at least extend to adoption of daughter’s son, sister’s son and the son of the mother’s sister. Maynes’ Treatise on Hindu Law and Usage (15th Edition) has categorically laid down the above mentioned prohibition in paragraph 187 which is quoted herein below : “187. One whose mother could have been married.—There is another rule that no one can be adopted whose mother in her maiden state the adopter could not have legally married. There has been considerable controversy about this rule. Its origin and binding character have been criticised with great learning and force by Mr. V.N. Mandlik. He admits that “the Dattaka Chandrika, the Dattaka Mimansa, the Sanskara Kaustubha, the Dharma Sindhu and the Dattaka Nirnaya contain this prohibition”. These authorities base their option, first, on the text of Saunaka that the adopted boy must bear the reflection of a son, to which they append the gloss “that is the capability to have been begotten by the adopter through niyoga, and so forth”. Secondly, they rely upon a text which is attributed variously to Saunaka, Vridha Gautama and Narada, which states that a sister’s son and daughter’s son may be adopted by Sudras, but not by members of the three higher classes, and upon a text of Sakala which explicitly forbids the adoption by one of the regenerate classes of “a daughter’s son, a sister’s son, and the son of the mother’s sister”. As to the former text, Mr. Mandlik argues that the correct translation is “Sudras should adopt a daughter’s son, or a sister’s son. A sister’s son is in some places not adopted as a son among the three classes beginning with a Brahmana”. He points out that the Mayukha, as properly rendered, interprets the text as meaning that Sudras should adopt only, or primarily a daughter’s or a sister’s son, but not forbidding in such adoption by Brahmana. This view is also supported by the Davita Nirnaya, and the Nirnaya Sindhu. The fact still remains, however, that the five digests above referred to lay down the rule in distinct and positive terms. The rule so laid down was stated by Mr. This view is also supported by the Davita Nirnaya, and the Nirnaya Sindhu. The fact still remains, however, that the five digests above referred to lay down the rule in distinct and positive terms. The rule so laid down was stated by Mr. Sutherland, both the Macnaghtens, and both the Stranges and as limited to be the three regenerate classes, it has been affirmed by a singularly strong series of authorities in all parts of India as forbidding the adoption of the son of a daughter, or of a sister, or of an aunt.” 9. There was some divergence of opinion. It was held that although the rule was not universal to Shudras but the said rule applies to three higher castes. A Full Bench of this Court has laid down the invalidity of the adoption on the strength of the above rule of prohibition in case where general Hindu Law applies in the absence of custom to the contrary. Such view was laid down in the case of Bhagwan Singh v. Bhagwan Singh, (1899) 26 IA 1953. 10. The Mulla Principles of Hindu Law (19th Edition) has referred to the above law in paragraph 477 which is to the following effect : “477. WHO MAY BE ADOPTED Subject to the following rules, any person who is a Hindu, may be taken or given in adoption : (1) the person to be adopted must be a male. When the adoption of a female child was impermissible before the coming into force of the Hindu Adoptions and Maintenance Act, no evidence would make the adoption valid. This was more particularly as no custom of adoption if a female child was shown to exist; (2) he must belong to the same caste as his adopting father; thus, a Brahman cannot adopt a Kshatriya, a Vaisya or a Sudra; it is not necessary that he should belong to the same sub-division of the caste; (3) he must not be a boy, whose mother the adopting father could not have legally married; but this rule had been restricted in many cases to the daughter’s son, sister’s son, and mother’s sister’s son. This prohibition, however, does not apply to Sudras. Even as to the three upper classes, it has been held that an adoption, though prohibited under this rule,may be valid, if sanctioned by custom. 11. This prohibition, however, does not apply to Sudras. Even as to the three upper classes, it has been held that an adoption, though prohibited under this rule,may be valid, if sanctioned by custom. 11. It is also relevant to note the apex Court judgment in the case of Abhiraj Kuer v. Debendra Singh, AIR 1962 SC 351 . In the said case, the apex Court decided the question as to whether wife’ sister’s daughter’s son can be validly adopted. The apex Court after considering the text of various Smritikars and decided cases, has laid down that prohibition based on ‘Viruddh Sambandh’ Rule is only a recommendatory and marriage in breach of ‘Viruddh Sambandh’ rule is not invalid. 12. The question that has cropped up for consideration in this case is effect and consequences of the enactment namely 1956 Act on the above prohibition in Shastric Hindu Law. Section 4 of the Act gives overriding effect to the Act which is to the following effect : “4. Overriding effect of Act.—Save as otherwise expressly provided in this Act,— (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.” 13. Section 5 of the Act provides adoptions to be regulated by Chapter II. Section 6 provides for requisites of a valid adoption. Section 7 provides for capacity of a male Hindu to take in adoption, section 8 provides the capacity of a female Hindu to take in adoption, section 9 provides persons capable of giving in adoption and section 10 provides the persons who may be adopted and section 11 refers to other conditions for a valid adoption. Sections 6,8 and 10 which are relevant for the present case are quoted herein below : "6. Sections 6,8 and 10 which are relevant for the present case are quoted herein below : "6. Requisites of a valid adoption.—No adoption shall be valid unless— (i) 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 this Chapter.” “8. Capacity of a female Hindu to take in adoption.—Any female Hindu— (a) who is of sound mind; (b) who is not minor; and (c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has capacity to take a son or daughter in adoption.” “10. Persons who may be adopted.—No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely— (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption;" 14. 1956 Act is an Act which codified the law pertaining to adoption. 1956 Act has also brought various changes in law of adoption as it was existing earlier for example that a female has no independent right to make an adoption. Further adoption of daughters was not permissible in Shastric Hindu Law. 1956 Act provided that a female has capacity to take a son or daughter in adoption. Section 4 clearly provided that the Act has overriding effect on any text, rule or interpretation of Hindu Law or any custom or usage in force before the commencement of the Act. Learned Standing Counsel submitted that with regard to prohibition as contained in Shastric Hindu Law there is no express provision under the Act, the said provisions will still continues to apply. Learned Standing Counsel submitted that with regard to prohibition as contained in Shastric Hindu Law there is no express provision under the Act, the said provisions will still continues to apply. We are not in agreement with the above submission. The capacity of female Hindu is provided under Section 8 and the persons who may be adopted are provided under Section 10. Other conditions for valid adoption has been given in Section 11 which is being quoted herein below : “11. Other conditions for a valid adoption.—In every adoption, the following conditions must be complied with : (i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption; (ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption; (iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or more persons; (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption : Provided that the performance of datta homam shall not be essential to the validity of adoption.” 15. A conjoint reading of Sections 6, 8, 9, 10 and 11 clearly indicate that all conditions of valid adoption including the capacity of taking in adoption by female or for capacity of a person who is to be adopted has been statutorily laid down hence, the entire law has to be governed on the above provisions and the prohibition in the Shastric Hindu Law as noticed above, is no more in application. It is useful to refer Mulla Principle of Hindu Law (19th Edition) by S.A. Desai on Section 10 of 1956 Act. Following view has been expressed by the Commentator : “The section brings about some important changes in the law on this branch of the subject. Under the law as hitherto applied, the person to be adopted had to be a male since adoption of a daughter was not recognised. Now under the Act, adoption can be both, of a son as well as of a daughter. Another condition, imposed in the matter of the person who could be taken in adoption by the law as was hitherto applied, was that the person to be adopted must not be a boy whose mother the adopting father could not have legally married; but this rule was not strictly followed and in course of time was restricted only to the case of a daughter’s son, sister’s son and mother’s sister’s son. The restriction was not applied to sudras and even as to the three other castes, it was held that an adoption, though prohibited under the rule, could be valid if sanctioned by custom. The present section does not lay down any such limitation or restriction and any person may now be validly adopted, provided the person is capable of being taken in adoption as laid down in the section and the other conditions relating to adoption are fulfilled.” 16. The District Magistrate in the impugned order has referred to the judgment of the Rajasthan High Court in the case of Damodar Lal (supra), which was a case in which the High Court upheld the adoption. The mother of the appellant in that case was brother’s daughter, who could not be married with her uncle. The District Magistrate in the impugned order has referred to the judgment of the Rajasthan High Court in the case of Damodar Lal (supra), which was a case in which the High Court upheld the adoption. The mother of the appellant in that case was brother’s daughter, who could not be married with her uncle. The Rajasthan High Court considered the earlier cases and the Shastric text and relying on the apex Court judgment in the case of Abhiraj Kuer (supra) held that the prohibition regarding ‘Viruddh Sambandh’ rule was recommendatory in nature and thus, the adoption was not invalid. Following was observed in paragraph 16 : “ .....We are of the opinion that this rule introduced by Nanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wife’s sister’s daughter’s son is invalid.” 17. The District Magistrate in the impugned order relying on the judgment of the Rajasthan High Court in the case of Damoder Lal (supra) has referred to Section 5 of 1956 Act for coming to the conclusion that there is prohibition for adoption of daughter’s son. Neither Rajasthan High Court laid down any such prohibition nor does Section 5 contain any such prohibition as referred to in the impugned order. 18. Another issue which has cropped up is as to whether the adoption made by widow after 45 years of death of her husband, is in her independent right and whether after adoption, the petitioner shall also be treated to be son of late Bireshwar Sharma. Section 12 of the Act provides for effect of adoption which is quoted below : “12. Section 12 of the Act provides for effect of adoption which is quoted below : “12. Effects of adoption.—An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family : Provided that— (a) the child cannot marry any person whom or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.” 19. The apex Court had an occasion to consider Section 12 of 1956 Act in the case of Smt. Seetabai and another v. Ramchandra, AIR 1970 SC 343 . In that case, Seetabai was the widow of Bhagirath. Bhagirath predeceased Dulichand. An illegitimate child was born to Seetabai and Dulichand. Dulichand also died on 13.3.1958. Seetabai made adoption of plaintiff No. 2 Suresh Chand on 4.3.1958. The question arose as to whether when plaintiff No. 2 was adopted by Bhagirath’s widow, he could become coparcener of joint Hindu family or not. Paragraphs 4 and 6 of the aforesaid judgment, which are relevant are being quoted below : “4. The question next arises whether Suresh Chandra, plaintiff No. 2, when he was adopted by Bhagirath’s widow became a coparcener of Dulichand in the Hindu joint family properties. The High Court has taken the view that Suresh Chandra became the son of plaintiff No. 1 with effect from 1958 and plaintiff No. 2 would not become the adopted son of Bhagirath in view of the provisions of the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956). The High Court has taken the view that Suresh Chandra became the son of plaintiff No. 1 with effect from 1958 and plaintiff No. 2 would not become the adopted son of Bhagirath in view of the provisions of the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956). It was argued on behalf of the appellant that the High Court was in error in holding that the necessary consequence of a widow adopting a son under the provisions of Act 78 of 1956 was that the adopted would be the adopted son of the widow and not of her deceased husband. In our view the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. Section 5(1) of Act 78 of 1956 states : “(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this chapter ...... “ 6. It is clear on a reading of the main part of Section 12 and sub-section (vi) of Section 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. The result is, as mentioned in Section 14(1) namely where a wife is living, adoption by the husband results in the adoption of the child by both these spouses; the child is not only the child of the adoptive father but also of the adoptive mother. In case of there lying two wives, the child becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the step-mother of the adopted child. When a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the step-mother of the adopted child. When a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. The scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sonship with the deceased husband of the widow. The other collateral relations of the husband would be connected with the child through that deceased husband of the widow. For instance, the husband’s brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of widow’s family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that Section 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-section (4) of Section 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the “step-father” of the adopted child. The true effect and interpretation of Sections 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the 8 adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat(1). In other words the result of adoption by either spouse is that the 8 adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat(1). It follows that in the present case plaintiff No. 2 Suresh Chandra, when he was adopted by Bhagirath’s widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff No. 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff No. 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in the village.” 20. There is specific change in the scheme of the Act as reflected in Section 12. The adopted child is deemed to be child of his adoptive father or mother with effect from the date of adoption. Deeming fiction is that he is treated to be child of the family from the date of adoption. Earlier Shastric Hindu Law treated adoption as adoption even if the adoptive father died earlier. In the case of Namdev Vyuanmkat v. Chandrakant, 2003 (4) SCC 71 , the apex Court had occasion to consider Section 12 of the Act and its consequences. Paragraphs 17 and 22 being relevant are quoted herein below : “17. It is plain and clear that an adopted child shall be deemed to be the child of his or her adopted father or mother for all purposes with effect from the date of adoption as is evident from the main part of Section 12. Proviso (c) to Section 12 in clear terms states that the adopted child shall not divest any person of any estate, which vested in him or her before the adoption.” “22. Proviso (c) to Section 12 in clear terms states that the adopted child shall not divest any person of any estate, which vested in him or her before the adoption.” “22. A Bench of three learned Judges of this Court in Sawan Ram and others v. Kala Wanti and others, 1967 (3) SCR 687 , after referring to Nara Hanumantha Rao v. Nara Hanumayya and another, (1964) 1 Andh WR 156, was unable to accept the interpretation placed by the Andhra Pradesh High Court on Sections 12 and 13 of the Hindu Adoptions and Maintenance Act but however, found that the conclusion arrived at in that case by the Andhra Pradesh High Court was correct. In that case, the question that arose for consideration was whether E after the adoption by D, the widow of B could divest C of the rights which had already vested in C before the adoption. By the year 1936 C was the sole male member of the Hindu Joint Family which owned the disputed property. B died in the year 1924 and A died in 1936 before Hindu Women’s Rights to Property Act had come into force and, consequently, C as the sole male survivor of the family became full owner of the property. This Court further observed : (AIR p. 1765 para 9) “In these circumstances, it was clear that after the adoption of E by D, E could not divest C of the rights already vested in him in view of the special provision contained in clause (c) of the proviso to Section 12 of the Act. It appears that, by making such a provision, the Act has narrowed down the rights of an adopted child as compared with the rights of a child born posthumously. Under the Shastric law, if a child was adopted by a widow, he was treated as a natural-born child and, consequently, he could divest other members of the family of rights vested in them prior to his adoption. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause (c) of the proviso to Section 12, and Section 13 of the Act were incorporated.” 21. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause (c) of the proviso to Section 12, and Section 13 of the Act were incorporated.” 21. From the above statements of law made by the apex Court, it is clear that adopted child is not treated as natural born child but he takes right from the date of adoption. Another relevant judgment is in the case of Rajendra Kumar v. Kalyan, 2000(8) SCC 99 . In the said case the submission that the adopted child by legal fiction be treated to be born in 1919 when the adoptive father died, was rejected. Following was laid down in paragraph 25 : “25. It is on the above observation that Mr. Jain very strongly contended that the Plaintiff by a legal fiction takes the interest of Mahadeo in 1918 when he is deemed to be born, though, in fact however, he was born in 1951. We however, cannot lend any concurrence to the submission of Mr. Jain. The plaintiff can only claim by succession to Radhabai and not as a co-parcener on the basis of a legal fiction. We feel it expedient to record that the analysis of the situation by the Appellate Court that the Plaintiff would have to claim under Radhabai but by virtue of Section 12 of the Act of 1956, the plaintiff would not have any right on the basis that he was Mahadeos adopted son. Although as held above, there is no prohibition in adoption of daughter’s son under the 1956 Act and the view of the District Magistrate in so far as it holds that the adoption was prohibited cannot be supported.” 22. Thus even if it is assumed for purposes of this case that by adoption of the petitioner made by the widow by registered deed dated 28.10.1997 the petitioner from the date of adoption can be treated to be son of both the widow and her late husband (although it is not necessary to express any concluded opinion in this regard), the question to be considered is as to whether the petitioner is entitled for Swatantrata Sangram Family Pension. 23. 23. The District Magistrate vide letter dated 21.4.2008 (which is the impugned order in this writ petition) rejected the application of the petitioner dated 26.12.2006 by which application the petitioner had prayed for issuance of Freedom Fighter’s dependant certificate. In this context, it is relevant to refer to the Government order dated 21.11.1977 which was issued on the subject ‘Certificate for freedom fighters and their dependents for facilities in government services.’ The explanation appended in the Government order provides : "Lora=rk laxzke ds lsukuh ls muds vkfJr dk lEcU/k gksuk gh bl izek.k&i= ds fy, i;kZIr ugha gS] cfYd mDr lEcU/k ds vfrfjDr okLro esa vkfJr gksuk Hkh vko;d gSA" 24. The freedom fighter Bireshwar Sharma died in the year 1952. The widow of Freedom Fighter claimed adoption of petitioner on 28.10.1997 i.e. 45 years after the death of Freedom Fighter, hence, the decision of the District Magistrate not to issue a certificate of dependent of freedom fighter cannot be faulted although not on the ground as given in the letter dated 21.4.1998 but in view of Government order dated 21.11.1977 as extracted above. 25. The petitioner in the writ petition apart from praying for quashing the letter dated 21.4.2008 (Annexure-8 to the writ petition) has also prayed for a writ, order or direction in the nature of mandamus directing the Secretary, Home respondent No. 1 to release/grant the family pension to petitioner as dependant of freedom fighter, the entitlement of the petitioner to receive Freedom Fighter’s family pension is to be considered. 26. The State Government vide letter dated 20.3.2005 (Annexure-4 to the writ petition) send to District Magistrate, Meerut in reply to claim of the petitioner to sanction Freedom Fighter’s family pension has directed for examining the claim of the petitioner in accordance with Swatantrata Sangram Pension Niyamawali 1975. The claim of the petitioner, thus has to be examined in accordance with above 1975 Rules. 27. The Freedom Fighters and the members of their families are being given pensions and lump-sum grants since 1947 after independence. Initially there were no rules for giving pensions and lump-sum grants. The claim of the petitioner, thus has to be examined in accordance with above 1975 Rules. 27. The Freedom Fighters and the members of their families are being given pensions and lump-sum grants since 1947 after independence. Initially there were no rules for giving pensions and lump-sum grants. The State Government regularised the scheme for grant of pensions and lump-sum grants to the freedom fighters by framing rules in this behalf from February 25, 1972, which rules have been further changed from 6th August, 1975 by framing rules namely : "mRrj iznsk Lora=rk laxzke lsukfu;ksa vkSj muds ifjokjksa dks fn;s tkus okys vuqnku rFkk Lora=rk lEcU/kh fu;e" “The object of the above rules is to honour the freedom fighters who participated in the freedom struggle and to provide for lump-sum grant to the widow and family members. The above Rules provide for lump-sum grant apart from freedom fighter pension. Rules also provide for family pension with regard to a freedom fighter. Rule 2 (Kha) defines the family in context of lump-sum grant to a freedom fighter. Rules 5 (ka) and (kha) provide for family pension. The above Rules provide for lump-sum grant apart from freedom fighter pension. Rules also provide for family pension with regard to a freedom fighter. Rule 2 (Kha) defines the family in context of lump-sum grant to a freedom fighter. Rules 5 (ka) and (kha) provide for family pension. Rules 5 (ka), (kha) and 2 (kha) are quoted herein below : "2&[k Lora=rk laxzke lsukuh ;k mlds ifjokj dks Lohd`r fd, tkus okys vuqnku ds mn~ns; ds fy, ifjokj dk rkRi;Z mldh iRuh ;k fo/kok] vfookfgr iq=h ;k ml ij vkfJr ekrk&firk] vkfJr fo/kok iq=k&o/kq] vo;Ld iq= vkfJr cgu rFkk vkfJr iksrk&iksrh ftlds firk thfor u gksa] ls gSaA 5&¼d½ fdlh ,sls Lora=rk laxzke lsukuh dh ewR;q ij tks bl fu;ekoyh ds v/khu Lora=rk isaku ik jgk gks mDr isaku ;k mlds fy, rRdky fu/kkZfjr U;wure /kujkfk tks Hkh vf/kd gks] Lora=rk laxzke ikfjokfjd isaku ds :i esa mlds ifjokj ds ik= lnL; dks nh tk ldsxhA bl krZ ds loZFkk v/khu jgrs gq, fd ,d le; esa ,d ls vf/kd O;fDr bldk gdnkj u gksxk mDr ik=rk dk mRrjksRrj Øe bl izdkj gksxk] vFkkZr loZizFke fo/kok tks bl e`R;q ;k iqufoZokg rd ik ldsxhA Rripkr T;s"Be thfor vo;Ld iq= ;fn dksbZ gks] vkSj ;g Øe thfor vo;Ld iq=sa rd pyrk jgsxk tks bls 18 o"kZ dh vk;q rd ik ldsaxsA blds ipkr T;s"Be thfor vo;Ld ,oa vfookfgr iq=h tks bls fookg ;k 21 o"kZ dh vk;q rd tks Hkh igys /kfVr gks] ik ldsxh vkfn ;fn dksbZ nwljh vfookfgr iq=h gks rks blds ipkr og Hkh bls fookg ;k 21 o"kZ dh vk;q rd tks Hkh igys ?kfVr gks] ik ldsaxhA ;g Øe vfookfgr iqf=;ksa rd blh izdkj pyrk jgsxkA ikfjokfjd isaku ik= O;fDr dks] isaku ik jgs lsukuh dh e`R;q ds fnukad ds nwljs fnu ls ns; gksxhA ¼[k½ [k.M ¼d½ esa fdlh Hkh ckr ds gksrs gq, kklu dks ;g vf/kdkj gksxk fd og fdlh ,sls Lora=rk laxzke lsukuh dh e`R;q ds ipkr ftlus vius thou dky esa Lora=rk laxzke isaku izkIr dh gks] mlds ifjokj ds ik= lnL; dks mi;qZDr /kujkfk dh tks fu;e 2 M esa Lora=rk laxzke isaku ds gokys of.kZr U;wure rFkk vf/kdre lhekvksa ds vUnj jgsxh] Lora=rk laxzke ikfjokfjd isaku Lohd`r nsaA 28. There is a mark difference between the scheme of lump-sum grant and family pension. The persons eligible under the above two categories are different. There is a mark difference between the scheme of lump-sum grant and family pension. The persons eligible under the above two categories are different. The definition of family for lump-sum grant includes wife, widow, unmarried daughter, unmarried son and other members of family as mentioned in Rule 2 (kha). The grant of family pension after the widow is confined only to two following categories; (i) the eldest minor son (ii) the eldest minor daughter. The rule further provides that after the eldest minor son, if there is any other minor son he will also be eligible thereafter. After the eldest minor daughter, if any other minor daughter is there she will be eligible. The object of the Rule is to take care of widow of the freedom fighter and the minor sons and daughters. The rule contemplates grant of family pension after the widow to the eldest minor son. The eldest minor daughter comes thereafter. In the present case, after the death of widow, the eldest is the daughter of freedom fighter, who is none other than the mother of the petitioner. The daughter of freedom fighter at the time of death of widow was more than 45 years of age. The eldest being not a minor son rather daughter of freedom fighter, the petitioner cannot claim benefit under Rule 5 (ka). The object of the Rules is to take care of widow and minor eldest son and the benefit is to be interpreted according to the object of the Rules. The object of the Rules is not to give family pension to a son when there is already eldest daughter of more than 45 years of age. The purpose and object of the Rules have to be advanced while adopting an interpretation. The present case is a glaring example of an effort to defeat the object of the Rules. Freedom fighter died in 1952, widow died in 1998, the petitioner was adopted in 1997 i.e. after 45 years of the death of freedom fighter. At the time of death of widow, the eldest daughter of freedom fighter that is mother of the petitioner, is more than 45 years of age in such circumstances, the benefit of Rule 5 (ka) cannot be extended to the petitioner for entitlement of family pension. 29. At the time of death of widow, the eldest daughter of freedom fighter that is mother of the petitioner, is more than 45 years of age in such circumstances, the benefit of Rule 5 (ka) cannot be extended to the petitioner for entitlement of family pension. 29. In view of the foregoing discussions, the claim of the petitioner for grant of family pension cannot be accepted under 1975 Rules. The petitioner is not entitled for any of the reliefs claimed in the writ petition. This is not a fit case to exercise any discretion by this Court in exercise of jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. 30. The writ petition is dismissed. ————