IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 4295 of 2008 Date of decision: 14.12.2010 ________________________________________________________________ Kam Raj. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Mr. Jivesh Sharma, Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate General, for the respondents. V.K. Sharma, J. (Oral). The facts giving rise to filing of the present petition are that late Shri Sant Ram was working as Laboratory Attendant in the Education Department. He died during harness on 15.11.1988. The petitioner, claiming himself to be the adopted son of the said Shri Sant Ram, applied for grant of employment on compassionate grounds. However, the prayer was rejected vide letter dated 3rd November, 1992, Annexure P-13, on the ground that the will produced by the petitioner cannot take place of an adoption deed executed under the provisions of the Hindu Adoptions and Maintenance Act, 1956 (in short 'the Act'). Thereafter, the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... petitioner submitted a representation to the Chief Minister which also came to be rejected vide communication dated 18.05.1994, Annexure P-14. 2. Against the above backdrop, the petition has been filed on the following prayer: “To direct the respondents to provide the applicant Service in Education Department on compassionate grounds equivalent to his educational qualifications as the applicant is the only son and dependent of the deceased Government Servant – Shri Sant Ram.” 3. In reply, on behalf of respondents No. 1 & 2, the following stand has been taken vide para 6(i): “6(i) That the contents of this para are admitted being a matter of record that Late Shri Sant Ram was working as laboratory Attendant in the Education Department at Govt. Senior Secondary School, Lathani, District Una,. Himachal Pradesh and died on 15.11.1988 while in service. It is also admitted on the basis of matriculation certificate Annexure P-10 that Shri Kam Raj is the natural son of Shri Krishan Ram. Rest of the contents of this para are wrong, hence denied. It is submitted that in the absence of valid adoption deed the applicant cannot be presumed by any stretch of imagination to be an adopted son of Late Shri Sant Ram. It is a strange phenomenon that while effecting partition of property between the brothers, one brother adopt a son of the elder brother to inherit the property. Division of joint property by mutual consent is not disputed. But passing reference in the agreement for taking a son in adoption cannot be presumed a valid adoption under the law. The agreement alleged to have been made on 9.1.1982 is without date. The document can be purported to have been engineered for the purpose of garbing the benefits. It is submitted that inclusion of name in the ration card is no proof of the fact that the applicant has been taken in adoption. The certificate of the President is also no proof of the adoption. So far as the “will” is concerned the same is not denied. But the applicant on the basis of “will” is confined to the right of property bequeathed by Shri Sant Ram on 13.11.1988. By way of “will” the property which is not in physical possession of the executor on the date of signing the “will” can not be bequeathed and it is a settled principle of law. It is also a strange phenomenon that when a boy or girl is taken on adoption, he gets all rights that of a natural son from the adoption deed. There arises no necessity to execute a will in favour of an adopted son/girl. It is submitted that the applicant was well- ...3... advised about the validity of the agreement which does not create any right in favour of the applicant and as a consequence thereof he was advised to engineer a “will” in his favour for the purpose of grabing the property. But he was at the same time ill-advised about the effect of a “will” about the property which was not in possession of the executor at the relevant date. It is further submitted that public office/post cannot be bequeathed by way of will.” 4. In order to resolve the controversy involved in the present case, it shall be appropriate to notice the provisions of Section 5 of the Act, which are as under: “5. Adoptions to be regulated by this Chapter.-(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, and any adoption made in contravention of the said provisions shall be void. (2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.” 5. Thus, it is manifest that an adoption is required to be made in accordance with the provisions contained in Chapter-II of the Act and any adoption made in contravention thereof shall be void. The relevant provisions are contained in Sections 6, 7, 9, 10 and 11 of the Act, which provide for requisites of a valid adoption; capacity of a male Hindu to take in adoption; persons capable of giving in adoption; persons who may be adopted and other conditions for a valid adoption. 6. In this case, the petitioner is basing his claim for compassionate appointment being adopted son of late Shri Sant Ram on the basis of 'Tehrir Khangi Bantwara' (deed of family partition) dated 9th January, 1982, Annexure P-1. On perusal of this document, it is revealed that Krishan Ram, Dhani Ram and Sant ...4... Ram were three real brothers. Since Shri Sant Ram was unmarried, he adopted the petitioner as son, as is apparent from the recital to this effect contained in deed of family partition, Annexure P-1. Thus, it is apparent that Krishan Ram, who was the natural father of the petitioner was also present when the petitioner was adopted by Shri Sant Ram. It is further made out from matriculation certificate, Annexure P-10, that the petitioner was born on 03.02.1970. Thus at the time of execution of deed of family partition dated 9th January, 1982, Annexure P-1, he was aged slightly less then 12 years. Thus in the peculiar facts and circumstances of the present case, it is manifest that deed of family partition dated 9th January, 1992, Annexure P-1, can safely be construed to be a deed of family partition-cum-adoption conforming to the provisions of Chapter-II of the Act. 7. The factum of adoption of the petitioner by late Shri Sant Ram is further fortified from certificate regarding ration card, Annexure P-2, certificate issued by Pardhan Gram Panchayat, Annexure P-3, Will dated 13.11.1988, Ex. PH, executed by late Shri Sant Ram in favour of the petitioner, letter dated 3rd October, 1991, Annexure P-5, whereby family pension in respect of late Shri Sant Ram was granted in favour of the petitioner, affidavit dated 02.12.1988, Annexure P-6, executed by Smt. Kauri Devi, mother of late Shri Sant Ram, affidavit daed 14.09.1993, Annexure P-7, of Shri Krishan Ram, natural father of the petitioner, dependents certificate dated 09.01.1991, Annexure P-8 and legal heir certificate dated 10.04.1989, Annexure P-9. ...5... 8. It is apparent from a plain reading of Section 17 of the Registration Act, 1908, that deed of adoption is not a compulsorily registrable document. It has been held in Smt. Chandrani Bai vs. Pradeep Kumar, AIR 1991 Madhya Pradesh, 286, that mere absence of registered document would not render a deed of adoption liable to rejection. Similar inference is deducible from the law laid down by the Hon'ble Orissa High Court in Khetrabasi Padhan vs. Bisikeshan Padhan, AIR 1957 Orissa 191. 9. Above all, the fact remains that for the purpose of grant of family pension, the petitioner has already been considered to be the adopted son of late Shri Sant Ram by the respondents, as is apparent from the aforesaid letter dated 3rd October, 1991, Annexure P-5, addressed by the Accounts officer, Office of Senior Deputy Accountant General (A & E), Himachal Pradesh to respondent No. 3. 10. In view of the above, the petition is allowed. Consequently Annexure P-13 and P-14 are quashed with a direction to respondent No. 1 to consider the case of the petitioner for grant of employment on compassionate grounds in accordance with law and justice and on the basis of his status as adopted son of late Shri Sant Ram within three months from today. 11. The petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge 14th December, 2010 (virender)