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2010 DIGILAW 994 (ALL)

Jainendra Pratap Singh v. State of U. P. & Ors.

2010-03-25

RAJIV SHARMA

body2010
Heard Counsel for the peti­tioner and Standing Counsel. 2. Being dissatisfied with the order dated 16.6.2008 passed by the Executive Engineer, Nirman Khand-2, Lok Nirman Vibhag, Faizabad, whereby the claim of the petitioner for compassionate appointment and clearence of dues of his late father has been rejected, the petitioner has filed the instant writ peti­tion. 3. Late Ram Chandra Singh was working as Peon under Executive Engineer in Ganghut, Milkipur, Faizabad. He expired on 25.6.2005, while being in service. The de­ceased in his life time and his wife had adopted the petitioner as son on 14.1.1989 through an adoption deed under the provi­sions of Hindu Adoptions and Maintenance Act, 1956. After the death of Ram Chandra Singh, the petitioner submitted an application for compassionate appointment after complet­ing all necessary formalities. The Executive Engineer by his order dated 16.10.2006 re­jected the claim of the petitioner. The order dated 16.10.2006 was assailed in writ peti­tion No. 9384[SSJ of 2006-This Court vide an order dated 17.3.2008 while quashing the aforesaid order dated 16.10.2006 directed for deciding the representation. 4. In compliance of the order dated 17.3.2008, the petitioner submitted a compre­hensive representation to the authority con­cerned. The Executive Engineer again by the impugned order "rejected the claim. 5. Contention pf the Counsel for the peti­tioner that action of the Executive Engineer in rejecting the claim of the petitioner on the ground that the adoption deed is not regis­tered is wholly arbitrary and illegal as he com­pletely overlooked the fact that the compe­tent Court has issued Succession Certificate in favour of the petitioner holding that the petitioner is entitled for all the post-retiral benefits of his late father, after declaring the petitioner as legal heir. He further submitted that a bare perusal of the Succession Certifi­cate as issued to the petitioner will indicate that the petitioner has been authorized to re­ceive Rs. 3,50,4817- as dues of late Ram Chandra Singh. 6. On behalf of the respondents, it has been argued that as per amended Section 16 of the Hindu Adoption and Maintenance Act, 1956 registration of the adoption deed is must and as such unregistered adoption deed does not have any value in the eyes of law. In the present case, the petitioner has claimed ap­pointment on the basis of unregistered docu­ment, which is not a valid document. In the present case, the petitioner has claimed ap­pointment on the basis of unregistered docu­ment, which is not a valid document. How­ever, the factum of Succession Certificate under the provisions of Indian Succession Act, in favour of the petitioner declaring him as a legal heir, having been granted by the competent Court has not been disputed. 7. The question whether an adopted son is entitled for compassionate appointment or not came up for consideration in Sinhasan Gupta v. State of U.P. and another [(1996) 1 UPLBEC 4 and this Court while answering in affirmative relied upon an earlier decision rendered in Sunil Saxena v. State of U.P. re­ported in 1994 (68) FLR 283, which reads as under:- "another, objection raised by the respon­dents about the petitioner being adoptd son and not the real son of the deceased is not tenable. After adoption, the petitioner is en­grafted in the family of the deceased, who was his adopted father. Under Hindu Law he gets all the rights, privileges and obligations of a son. Therefore, there is no difference be­tween a real son and adopted son. Son would include adopted son if the adoption is valid." 8. The decision rendered in Sinhasan Gupta v. State of U.P. and another (supra) has been followed by this Court in a subsequent decision rendered in Rakhi Singh v. State of U.P. and others; [2006(24) LCD 182]: (2006 (6) ALJ (DOC) 306). 9. At this juncture it would be useful to refer some of the provisions of The Hindu Adoptions and Maintenance Act, 1956 which was enacted with a view to amend and codify the law relating to adoptions and maintenance among Hindus. Chapter II deals with the adoption and Section 5 of the Act says that 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, and any adoption made in contravention of the said provisions shall be void. Chapter II deals with the adoption and Section 5 of the Act says that 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, and any adoption made in contravention of the said provisions shall be void. Section 6 deals with the requisites of a valid adoption and enjoins as under:- "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." 10. It may be clarified that under Section 6, the law does not recognize an adoption by a Hindu of any person other than Hindu. 11. Section 10 deals with persons who may be adopted and reads as under"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." 12. Section 12 deals with the effects of adoption and reads as under: - "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 he 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." 13. In Basvarajappa v. Gurubasamma and others [(2005) 12 Supreme Court Cases 290], the Supreme Court had an occasion to con­sider the provisions of Section 12 of the Act and held in paragraph 11 of the report as un­der:- "... On adoption, the adoptee gets trans­planted in the family in which he is adopted with the same rights as that of a natural-born son. The legal effect of giving a child in adop­tion is to transfer the child from the family of his birth to the family of his adoption. He sev­ers all his ties with the family from which he is taken in adoption...." 14. From the perusal of the aforesaid pro­visions and the proposition of law, laid down in Basvarajappa's case (supra), it is abun­dantly clear that on adoption, adoptee gets transplanted in adopting family with the same right as that of natural born son. Adopted child becomes coparcener in Joint Hindu Family property after severing all his ties with the natural family. Thus, there remains no dis­tinction between the natural son and the adopted son. Had there been any intention of the legislature to exclude the, adopted son, from the definition of family, as defined in 1974 Rules, there would have been expressly excluded the adopted son. 15. Thus, there remains no dis­tinction between the natural son and the adopted son. Had there been any intention of the legislature to exclude the, adopted son, from the definition of family, as defined in 1974 Rules, there would have been expressly excluded the adopted son. 15. Moreover, by the order dated 2.4.2006, the Civil Judge, Senior Division, Faiabad, the petitioner has been declared as legal heir of deceased Ram Chandra Singh. 16. For the reasons aforesaid, the im­pugned order dated 16.6.2006 is hereby quashed. The opposite parties are directed to consider the claim of the petitioner for com­passionate appointment and release the dues of Late Ram Chandra Singh in light of the observations made hereinabove and the Suc­cession Certificate granted by the competent Court say within a period of 3 months. 17. The writ petition is allowed in above terms. Petition allowed