Allahabad High Court
Shivansh Singh vs State Of U.P. Thru Prin.Secy.Secondary ... on 23 January, 2017
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 7 Case :- SERVICE SINGLE No. - 1663 of 2017 Petitioner :- Shivansh Singh Respondent :- State Of U.P. Thru Prin.Secy.Secondary Edu.Deptt.Lko. & Ors. Counsel for Petitioner :- Meenakshi Singh Parihar Counsel for Respondent :- C.S.C. Hon'ble Devendra Kumar Upadhyaya,J.
Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondent nos. 1 to 4.
The petitioner, who is said to be adopted son of late Girish Dutt Singh, who was working as Lecturer in Shaheed-A-Azam Sardar Bhagat Singh Inter College, Gonda has filed this writ petition challenging the order dated 18th March, 2015 passed by the Deputy Director of Education, (Secondary), 9th Region, Faizabad whereby his claim for grant of family pension has been rejected.
The only reason indicated in the impugned order while denying the claim of the petitioner for family pension is that deed of adoption is said to have been executed on 28th May, 2013, whereas the proceedings of adoption took place on 10th October, 2013 before the Deputy-Registrar, Kaisarganj, Bahraich and hence the adoption deed being relied upon by the petitioner cannot be said to be the basis of establishing that the petitioner was adopted by the deceased employee late Girish Dutt Singh during his life time.
The aforesaid reason given by the Deputy Director of Education, (Secondary), 9th Region, Faizabad is based on complete mis-reading of the facts of this case, as also the legal provisions regarding adoption amongst Hindus in terms of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956.
The adoption deed which has been relied upon by the learned counsel for the petitioner to claim family pension is on record as Annexure No. 3 to the writ petition. The said adoption deed was executed on 28th May, 2013 recording therein that adoption of the petitioner by the deceased employee late Girish Dutt Singh and his wife late Kusum Singh took place on 10th December, 2010. It is not in dispute that on the date on which adoption took place i.e. 10th December, 2010 according to the rituals and religious rites, the petitioner was minor. It is also not in dispute that petitioner's adoptive father late Girish Dutt Singh has expired on 29th May, 2013 in an accident and subsequently his wife late Kusum Singh also died on 5th May, 2014.
The only question which requires decision by this Court is as to whether the finding recorded by the Deputy Director of Education, Faizabad in relation to the adoption is correct and supported by law.
Adoption amongst Hindus is governed by the provisions contained in the Hindu Adoptions and Maintenance Act, 1956. According to Section 5 of the said Act, adoption is regulated by Chapter-II of the said Act. Section 6 provides that for an adoption to be valid, the person adopting should have the capacity, and also the right, to take in adoption and further that the person giving in adoption should also have the capacity to do so. It further provides that the person adopted should also be capable of being taken in adoption. Regarding the capability of the adoptive parents and the biological parents of the petitioner to take and give in adoption, there is no dispute. Section 11 of the aforesaid Act, inter-alia, provides that in every adoption, certain conditions must be complied with including the condition that the child to be adopted must be actually given and taken in adoption by the parents or guardian with an intent to transfer the child from the family of his birth.
In the instant case, as per the recitals made in the adoption deed, the giving and taking ceremony in adoption relating to the petitioner was held on 10th December, 2010 according to the religious rituals and rites, thus in-fact the actual giving and taking in adoption of the petitioner by his adoptive parents and biological parents was held on 10 December, 2010 and since that date, the petitioner had stood transferred from the family of his birth. The said recital has clearly been made in the adoption deed which was executed subsequently on 28th May, 2013. Unfortunately, the very next day of execution of adoption deed i.e. 29th May, 2013, the adoptive father of the petitioner, who was the deceased employee, died on 29th May, 2013.
The ceremony of giving and taking in adoption, execution of an adoption deed recording the incident of adoption and registration of an adoption deed are three different exigencies and hence the same are to be understood accordingly. The Deputy Director of Education, (Secondary), 9th Region, Faizabad while passing the impugned order has completely mis-directed himself and has failed to understand the distinction between giving and taking in adoption ceremony, execution of adoption deed and its registration.
Registration of a document in terms of the provisions contained in the Registration Act, 1908 can take place even after the death of the executant.
In the instant case, giving and taking in adoption ceremony took place on 10th December, 2010, the adoption deed was executed on 28th May, 2013 and it was registered on 10th October, 2013 that is after the death of the adoptive father of the petitioner. Merely because registration of the adoption deed was done after the death of the adoptive father cannot be said to be a ground for discarding the adoption deed and to arrive at a conclusion that no valid adoption in this case had taken place. The recitals made in the impugned order passed by the Deputy Director of Education, (Secondary), 9th Region, Faizabad to the effect that the proceeding relating to giving and taking in adoption took place on 10th October, 2013 is factually incorrect. It appears that the Deputy Director of Education, Faizabad has misunderstood registration of the adoption deed before the Deputy Registrar, Kaisarganj, Bahraich as the ceremony of adoption which is required to be performed in-terms of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956.
Section 16 of the Hindu Adoptions and Maintenance Act, 1956 provides a presumption as to the registered document relating to adoption. Sub-Section 2 of Section 16 of the said Act, as is applicable in the State of Uttar Pradesh, provides that in case of an adoption made on or after the 1st January, 1977, no Court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except on a document recording an adoption made and signed by the person giving and the person taking the child in adoption, and registered under the law.
In the instant case, giving and taking in adoption ceremony of the petitioner is recorded in the adoption deed which was made and signed by both, the adoptive parents and the biological parents of the petitioner.
The said adoption deed is registered as well before the Deputy Registrar, Kaisarganj, Bahraich and hence I do not see any legitimate ground available before the authorities to have discarded the adoption deed holding that the petitioner on the basis of the said deed, cannot be said to have been legally adopted and thus could not be eligible to be paid family pension.
For the reasons aforesaid, the impugned order dated 18th March, 2015 passed by the Deputy Director of Education, (Secondary), 9th Region, Faizabad as is annexed as Annexure No. 1 to the writ petition is hereby quashed and the writ petition is allowed. Further, the authorities concerned are directed to reconsider the matter afresh for grant of family pension to the petitioner in accordance with law and in accordance with the observations made here-in-above in the body of this judgment. The Matter shall be reconsidered expeditiously and appropriate orders shall be passed within a period of two months from the date of production of certified copy of this order before the authorities concerned.
The decision by the appropriate authority shall also be taken within the aforesaid period for grant of other terminal benefits to the petitioner to which he, under law, is found to be entitled to.
No order as to costs.
Order Date :- 23.1.2017 Ashish/