Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1888 (ALL)

Sohan Lal v. Estate Of Late Chunni Lal

2022-11-30

ABDUL MOIN

body2022
JUDGMENT : 1. Heard learned counsel for the petitioner, learned Standing counsel appearing for the State-respondents and Sri Sarvjeet Dubey, learned counsel appearing for the respondent no. 3. 2. Instant petition has been filed praying for the following main reliefs:- "(i) An appropriate order or direction may be passed setting aside the impugned judgment and order dated 19.11.2018 passed by Additional District and Sessions Judge, Court No. 6 Lucknow in Misc. Civil Appeal No. 18/16 (Dheer Singh Vs. Estate of Late Chunni Lal and another) as contained in Annexure No. 1 to this petition. (ii) An appropriate order or direction may be passed in the nature of Mandamus commanding the opposite party no. 3 to consider the grievance of the petitioner and disburse entire dues of late Chunni Lal to the petitioner and also give him employment on compassionate grounds under the Dying in Harness Rules as the petitioner was made nominee in service record of late Chunni Lal." 3. The case set forth by the petitioner is that one Sri Chunni Lal was an employee in the Irrigation Department and had no heirs of his own, his wife having left him. Sri Chunni Lal adopted the petitioner by means of registered adoption deed dated 23.10.1996, a copy of which is annexure 4 to the petition. It is contended that during his life time, Sri Chunni Lal had give an application in the office of the respondent no. 2 on 20.03.1990 whereby the petitioner was nominated in the service record as his nominee. Sri Chunni Lal died in harness on 06.10.1997. In January, 1998, the petitioner filed an application before the learned Civil Judge (Senior Division), Lucknow under Section 372 of the Indian Succession Act, 1925 (hereinafter referred to as "Act, 1925") for being issued a succession certificate. The said case was decided ex-parte vide order dated 27.08.1998 in favour of the petitioner, a copy of which is annexure 5 to the petition. 4. The respondent no. 2 filed an application for setting the order dated 27.08.1998 and the said case was registered as Case No. 45 of 1998. Both the cases i.e one filed by the petitioner as well as the other filed by the respondent no. 2 i.e the application for recall which was registered as Case No. 45 of 1998 were clubbed together. The application for recall was filed by Dheer Singh, the respondent no. Both the cases i.e one filed by the petitioner as well as the other filed by the respondent no. 2 i.e the application for recall which was registered as Case No. 45 of 1998 were clubbed together. The application for recall was filed by Dheer Singh, the respondent no. 2 on the ground that it was him who was validly adopted as son vide registered adoption deed dated 26.11.2015 by Sri Chunni Lal, which is prior to the adoption deed of the petitioner. Certain other grounds were also taken. Both the cases were dismissed vide judgment and order dated 26.11.2015, a copy of which is annexure 9 to the petition. 5. Being aggrieved, the respondent no. 2 filed an appeal under Section 384 of the Act, 1925. The Court vide order dated 19.11.2018 has allowed the appeal in favour of the respondent no. 2 and has directed for issue of succession certificate under Section 372 of the Act, 1925 in favour of the respondent no. 2. Simultaneously, the claim of the petitioner has been rejected. Being aggrieved, the instant petition has been filed. 6. The contention of learned counsel for the petitioner is that the appellate Court has patently erred in law in allowing the appeal filed by the respondent no. 2. He contends that the appellate Court has wrongly proceeded to allow the appeal and pass order in favour of respondent no. 2 by considering the registered adoption deed dated 06.11.1995 of the respondent no. 2 inasmuch as once the petitioner was shown as a nominee in the service record of Sri Chunni Lal it is apparent that it was he who was the validly adopted son of the deceased Sri Chunni Lal which fact has not been considered by the learned Court below in its proper perspective while allowing the appeal. 7. It is also argued that the mandatory condition of Section 11 (vi) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as "Act, 1956") provides that the child to be adopted must be actually given and taken in adoption by the respective parents or guardians concerned but no transfer of the child took place between the adoptive parents and the parents taking in adoption so far as it pertains to respondent no. 2, Dheer Singh and as such, the adoption was not completed and consequently, even if there was a registered adoption deed in favour of the respondent no. 2, the same would not result into his valid adoption. It is also contended that after the death of Sri Chunni Lal, the petitioner had approached the department for some aid for cremation and the department had released a sum of Rs.3000/-for the purpose of cremation and the respondent no. 2 failed to turn up for the cremation as such, it is apparent that the department has itself treated the petitioner to be the legal heir and validly adopted son of Late Chunni Lal and consequently, the order passed by the appellate Court merits to be set aside on this ground also. It is also contended that in the evidence which was led by the respondent no. 2, none of the witnesses in his support ever claimed the respondent no. 2 to be adopted son of deceased Chunni Lal or respondent no. 2 had any information even about the house of Sri Chunni Lal and as such, it is apparent that he cannot be said to be validly adopted son of Late Chunni Lal. 8. It is also argued that there no valid adoption which fact has also been accepted by respondent no. 2 inasmuch as both in the High School and Intermediate examinations which were qualified by respondent no. 2 after the alleged adoption, the name of his actual father namely Sri Pritam Singh continued to be indicated in the educational certificates. 9. Reliance has been placed on the judgment of the Apex Court in the case of Lakshman Singh Kothari Vs. Smt. Rum Kanwar reported in AIR 1961 SC 1378 . 10. No other ground has been urged. 11. On the other hand, Sri Sarvjeet Singh, learned counsel appearing for the respondent no. 2 states that the respondent no. 2 has got a valid registered adoption deed in his favour which was executed between the natural father of the respondent no. 2 namely Sri Pritam Singh and Chunni Lal on 06.11.1995. Copy of the registered adoption deed has been filed as annexure CA 2 to the counter affidavit filed by him. It is contended that the adoption deed would itself indicate that respondent no. 2 namely Sri Pritam Singh and Chunni Lal on 06.11.1995. Copy of the registered adoption deed has been filed as annexure CA 2 to the counter affidavit filed by him. It is contended that the adoption deed would itself indicate that respondent no. 2 had been adopted about five years prior to the adoption deed being registered i.e. somewhere in the year 1990 and the ceremony of adoption was also held. It is also contended that subsequent to the respondent no. 2 being adopted, Chunni Lal had given an application in his office nominating the respondent no.2 as an adopted son and nominee to receive the post retiral benefits after his death as would be apparent from a perusal of the application which had been given by Chunni Lal along with the endorsement made in the service records, copy of which has been filed as annexure 1 to the counter affidavit. He argues that concealing all the aforesaid facts, the petitioner had filed an application before the competent Court under Section 372 of the Act, 1925 for being issued a succession certificate and the case was decided ex-parte vide order dated 27.07.1998. As soon as the respondent no. 2 came to know about the same, he filed an application for recall of the said order and the said recall application was itself treated as a miscellaneous case, both the cases were clubbed together and were dismissed on merits vide order dated 26.11.2015. Being aggrieved, the respondent no. 2 had filed an appeal under the provisions of the Act, 1925 and the appellate Court vide order dated 19.11.2018 has allowed the appeal and after consideration of the evidence which had been led by the parties, has held the respondent no. 2 as being eligible for being issued a succession certificate. 12. Placing reliance on Section 16 of the Act, 1956, learned counsel for the respondent no. 2 argues that there is a presumption as to the registered document relating to adoption i.e whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. 13. 13. It is contended that once there is a mandatory provision under Section 16 of the Act, 1956 whereby in case of a registered adoption deed there is presumption of the adoption having been made in compliance with the provisions of the Act, 1956 and the petitioner having failed to disprove the same, consequently, there is no error in the Court having proceeded to pass the order dated 19.11.2018. 14. It is also contended that a perusal of the nomination form of the petitioner viz-a-viz the respondent no. 2 would indicate that so far as the petitioner is concerned, the office of the respondent no. 3 has recorded the petitioner as being a Bhatija (Nephew) of Chunni Lal while the petitioner has been recorded as the adopted son of Chunni Lal which itself is presumptive of the fact that the petitioner is only a Nephew while the respondent no. 2 is in fact the adopted son of Chunni Lal. 15. Heard the learned counsel appearing for the contesting parties and perused the records. 16. From the arguments as raised by the learned counsel appearing for the contesting parties and perusal of the records it emerges that one Sri Chunni Lal was an employee of the Irrigation Department and had adopted the respondent no. 2 by means of registered adoption deed dated 06.11.1995. Subsequent thereto, another adoption deed was executed on 24.10.1996 whereby the petitioner claims to have been taken in adoption. The adoption deed of the petitioner dated 24.10.1996, a copy of which has been filed as annexure 4 to the petition does not indicate about any earlier adoption having been made by Sri Chunni Lal. That Chunni Lal was issue less, is not disputed by either of the parties. Sri Chunni Lal gave an application in his office in December, 1995 nominating the respondent no. 2 i.e Dheer Singh as his adopted son and a nominee which was duly recorded in the service records and the respondent no. 2 was duly indicated as an adopted son of Sri Chunni Lal. However, prior to the said application, upon an application dated 20.03.1990 being given for recording of the petitioner as a nominee, the office agreed and has recorded the petitioner as Bhatija (Nephew) and not as son, a copy of which is part of annexure 2 to the petition (Page 31). However, prior to the said application, upon an application dated 20.03.1990 being given for recording of the petitioner as a nominee, the office agreed and has recorded the petitioner as Bhatija (Nephew) and not as son, a copy of which is part of annexure 2 to the petition (Page 31). The petitioner filed an application before the competent authority under the Act, 1925 for being issued a succession certificate. The competent Court vide order dated 27.08.1998 passed an order ex-parte in favour of the petitioner. An application for setting aside the said order was filed by the respondent no. 2. The application was registered as a miscellaneous case, both the cases i.e. one filed by the petitioner and other filed by the respondent no. 2 were clubbed together and were dismissed vide order dated 26.11.2015.Being aggrieved, the respondent no. 2 filed an appeal under the Act, 1925 and the appellate Court vide order dated 19.11.2018 has allowed the appeal and has directed for issue of a succession certificate under the Act, 1925 in favour of the respondent no.2. Being aggrieved, the instant petition has been filed. 17. The contention of learned counsel for the petitioner is that the appellate Court has patently erred in law in not considering the provisions of Section 11 (vi) of the Act, 1956 which categorically provides for a give and take between the parents giving in adoption and taking in adoption and thus when from the evidence that had been led by the respondent no. 2 before the appellate Court and even from the adoption deed it has not emerged anywhere that the ceremony of give and take took place between the respective parents as such, the appellate Court has patently erred in law in allowing the appeal of respondent no. 2 and for directing to issue the succession certificate. 18. A perusal of the order impugned would indicate that the provisions of Section 16 of the Act, 1956 have been considered by the appellate Court. For the sake of convenience, the provisions of Section 16 of the Act, 1956 are reproduced below:- "16. 2 and for directing to issue the succession certificate. 18. A perusal of the order impugned would indicate that the provisions of Section 16 of the Act, 1956 have been considered by the appellate Court. For the sake of convenience, the provisions of Section 16 of the Act, 1956 are reproduced below:- "16. Presumption as to registered documents relating to adoption-Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved." STATE AMENDMENT "UTTAR PRADESH.—In the Hindu Adoption and Maintenance Act, 1956, Section 16 shall be renumbered as sub-section (1) thereof, and after sub-section (1) as so renumbered, the following sub-section shall be inserted, namely: “(2) In case of an adoption made on or after the first day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force:" 19. From a perusal of Section 16 (1) of the Act, 1956 it emerges that that whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of the Act, 1956 unless and until it is disproved. Section 16 (2) of the Act, 1956 provides that in case of an adoption made on or after the 1st day of January, 1977 no Court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption except a document recording an adoption made and signed by the person giving and the person taking the child in adoption and registered under any law for the time being in force. 20. 20. From a perusal of the aforesaid provisions of the Act it is apparent that irrespective of Section 11 (vi) of the Act, 1956 the mandate of the Act, 1956 as given in Section 16 of the Act is that the Court shall presume the adoption of a person in case any document registered any law is produced before the Court purporting to record the adoption. Further, in terms of Section 16 (2) of the Act, 1956 the adoption deed in favour of the respondent no. 2 being dated 06.11.1995, no Court in Uttar Pradesh can accept any evidence in proof of the giving and taking of the child in adoption except a document recording an adoption. Natural corollary to it would be that the adoption of the respondent no. 2 would have to be considered as valid more particularly when it has been done by registered adoption deed. 21. In the instant case, it is apparent that the respondent no. 2 had produced a valid adoption deed dated 06.11.1995 which was prior to the adoption deed of the petitioner which is dated 24.10.1996. 22. 2 would have to be considered as valid more particularly when it has been done by registered adoption deed. 21. In the instant case, it is apparent that the respondent no. 2 had produced a valid adoption deed dated 06.11.1995 which was prior to the adoption deed of the petitioner which is dated 24.10.1996. 22. Section 11 of the Act, 1956 reads as under:- "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 birth1[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." 23. From a perusal of sub Section (i) of Section 11 of the Act, 1956 it clear emerges that in an adoption, if the adoption is of a son, the adoptive father by whom the adoption is made must not have a Hindu son, whether by legitimate blood relationship or by adoption) living at the time of adoption. In the instant case, it is apparent that the registered adoption of the respondent no. In the instant case, it is apparent that the registered adoption of the respondent no. 2 took place on 06.11.1995 while the petitioner alleges to have been adopted on 23.10.1996. Thus, alleged adoption of the petitioner is subsequent to the adoption of the respondent no. 2 and consequently, would run foul to the provisions of sub Section (i) of Section 11 of the Act, 1956 and as such on this ground too the alleged adoption of the petitioner cannot be said to be legally valid. 24. As regards the argument raised by the learned counsel for the petitioner that there was no giving and taking ceremony between the parents of the respondent no. 2 and Chunni Lal, suffice it to state that very first paragraph of the adoption deed of the respondent no. 2 dated 06.11.1995 would indicate that the ceremony of giving and taking in adoption took place five years prior to adoption deed being registered. Thus, the said argument is rejected. 24. Further, the adoption of the respondent no. 2 was duly informed by Sri Chunni Lal to the department and the respondent no. 2 was duly recorded as the adopted son in the service records as would be apparent from a perusal of the service book. Keping in view the earlier adoption deed recording the respondent no. 2, Dheer Singh as having been adopted, the natural corollary to it being that Chunni Lal had a living son and this is also indicative of the fact that in the application moved before the office by Sri Chunni Lal with respect to the petitioner was as nominee and the same having been endorsed in the service record only records the petitioner as being the nephew of Sri Chunni Lal. 25. So far as the alleged adoption of the petitioner is concerned, suffice it to state that keeping in view the provisions of Act, 11 (i) of the Act, 1956, Sri Chunni Lal could not have validly adopted the petitioner. 26. The argument of learned counsel for the petitioner that despite the alleged adoption of the respondent no. 2 being of the year 1995, the name of the father in the High School examination has been recorded as Pritam Singh instead of Chunni Lal may not be very relevant inasmuch as a mere error in a certificate cannot dispute or negate the valid registered adoption deed dated 06.11.1995. 27. 2 being of the year 1995, the name of the father in the High School examination has been recorded as Pritam Singh instead of Chunni Lal may not be very relevant inasmuch as a mere error in a certificate cannot dispute or negate the valid registered adoption deed dated 06.11.1995. 27. Another aspect of the matter is that the adoption deed of the respondent no. 2 has never been challenged by the petitioner and still continues to held good. 28. So far as the judgment of the Apex Court in the case of Lakshman Singh Kothari (supra) is concerned, suffice it to state that the Apex Court was never seized of the provisions of Section 16 of the Act, 1956 inasmuch as from a perusal of said judgment it does not emerge that there was a valid adoption deed before the Apex Court. Thus, the said judgment is distinguishable on its own facts. 29. In this regard, it would also be apt to reproduce the judgment of Apex Court in the case of Atluri Brahmanandam (D) Vs. Anne Sai Bapuji reported in (2010) 14 SCC 466 wherein it has been held as under:- "12.........On the other hand, the effect and the implication of Section 16 of the Act is that if there is any document purporting to record an adoption made and is signed by the person giving as well the person taking the child in adoption is registered under any law for the time being in force and if it is produced in any Court, the Court would presume that the adoption has been made in compliance of the provisions of the Act unless and until it is disproved." 30. When the facts of the instant case are seen in the context of the law laid down by the Apex Court in the case of Atluri Brahmanandam (D) (supra) it clearly emerges that the respondent no. 2 is having a valid adoption deed in his favour and as such, keeping in view Section 16 of the Act, 1956, the learned Court below presumed that the adoption had been made in pursuance to the provisions of the Act, 1956 and the petitioner failed to disprove the same. 31. Keeping in view the aforesaid discussion, no case for interference is made out. The writ petition is dismissed.