# Bhanu Pratap Singh v. State of U.P. & Ors

- **Citation:** (2021) 4 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-22
- **Case number:** Special Appeal No. 22 of 2021
- **Bench:** Manoj Misra, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhanu-pratap-singh-v-state-of-u-p-ors-47040
- **Pages:** 9

## Headnote

A. Civil Law - Dying in Harness Rules,
1974 - Hindu Adoption and Maintenance
Act, 1956 - Section 7, Proviso of Section s
7 & 8 - Compassionate appointment -
Claim on the basis of Adoption - Adoption
deed declare the deceased-employee as
unmarried, though he was married - Lack
of
wife's
consent
-
Effect
-
Party
propounding an adoption by a Hindu male,
who has a living wife, has to adduce
evidence to prove that the same was done
with the consent of his wife - This can be
done
either
by
producing
document
evidencing her consent in writing or by
leading evidence to show that wife had
actively participated in the ceremonies of
adoption with an affirmative mindset to
support the action of the husband to take
a son or a daughter in adoption - Held,
the learned Single Judge was justified in
negativing the claim of the writ petitioner
(the
appellant)
for
compassionate
appointment on the basis of his alleged
adoption by the deceased employee. (Para
12 and 18)
B. Evidence law - Adoption deed - Validity
- Presumption - Rebuttable or not - Legal
principle laid down - Once a registered
deed of adoption is produced though there
arises a presumption that the adoption
has been made in compliance with the
provisions of the 1956 Act but that
presumption is rebuttable - Whether that
presumption has been rebutted depends
on the facts of each case borne out from
the evidence on record. (Para 15)
Special Appeal dismissed of. (E-1)
Cases relied on :-

## Text

154 INDIAN LAW REPORTS ALLAHABAD SERIES

Hon'ble Prakash Padia,J.

Vide order dated 26.02.2020 Mr. D. N.
Mishra, learned counsel, was appointed
Amicus Curiae in the case to assist the
Court.

Vide order dated 12.10.2020 further
direction was given by this Court to make
payment of Rs.15,000/- to Mr. D. N.
Mishra, Amicus Curiae, for assisting the
Court within a period of two weeks.

When the matter was finally decided
by me on 03.03.2021 the assistance was
also given by Mr. D. N. Mishra, Amicus
Curiae, to resolve the dispute.

In this view of the matter, office is
directed to pay Rs.15,000/- in favour of Mr.
D. N. Mishra, Amicus Curiae, within a
period of three weeks from today.
----------
(2021)04ILR A154
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Special Appeal No. 22 of 2021

Bhanu Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anand Prakash Paul, Sri Brij Bhushan
Paul

Counsel for the Respondents:
C.S.C.

A. Civil Law - Dying in Harness Rules,
1974 - Hindu Adoption and Maintenance
Act, 1956 - Section 7, Proviso of Section s
7 & 8 - Compassionate appointment -
Claim on the basis of Adoption - Adoption
deed declare the deceased-employee as
unmarried, though he was married - Lack
of
wife's
consent
-
Effect
-
Party
propounding an adoption by a Hindu male,
who has a living wife, has to adduce
evidence to prove that the same was done
with the consent of his wife - This can be
done
either
by
producing
document
evidencing her consent in writing or by
leading evidence to show that wife had
actively participated in the ceremonies of
adoption with an affirmative mindset to
support the action of the husband to take
a son or a daughter in adoption - Held,
the learned Single Judge was justified in
negativing the claim of the writ petitioner
(the
appellant)
for
compassionate
appointment on the basis of his alleged
adoption by the deceased employee. (Para
12 and 18)
B. Evidence law - Adoption deed - Validity
- Presumption - Rebuttable or not - Legal
principle laid down - Once a registered
deed of adoption is produced though there
arises a presumption that the adoption
has been made in compliance with the
provisions of the 1956 Act but that
presumption is rebuttable - Whether that
presumption has been rebutted depends
on the facts of each case borne out from
the evidence on record. (Para 15)
Special Appeal dismissed of. (E-1)
Cases relied on :-
1. Laxmibai Vs Bhagwantbuva, (2013) 4 SCC 97
2. Brajendra Singh Vs St.of M.P., (2008) 13 SCC
161
3. Ghisalal Vs Dhapubai, (2011) 2 SCC 298
4. Jai Singh Vs Shakuntala, (2002) 3 SCC 634
(Delivered by Hon'ble Manoj Misra, J.&
Hon'ble Rohit Ranjan Agarwal, J.)
4 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
155

In
re:
Delay
Condonation
Application No. NIL of 2021:

1. As the limitation expired during the
period of COVID-19 pandemic, the office
has not reported the appeal to be beyond
the period of limitation but, as a delay
condonation application has been filed, to
avoid any technicalities, we deem it
appropriate to allow the application and
condone the delay, if any.

In re: Appeal

2. Heard Sri B.B. Paul for the
appellant; the learned Standing Counsel for
the respondents 1, 2 and 3; and perused the
record.

3. This intra-court appeal has been
filed by the writ-petitioner (for short the
appellant) against the judgment and order
dated 25.11.2020 passed by the learned
Single Judge in Writ A No. 10300 of 2107
by which appellant's writ petition has been
dismissed.

4. Facts, in brief, giving rise to this
appeal are that on death of one Rajendra
Singh on 03.06.2016, in harness, by claiming
himself as his adopted son, the appellant
applied for compassionate appointment. As
the claim of the appellant was not being
addressed, the appellant filed Writ A
No.53860 of 2016 and obtained a direction
on 17.11.2016 for consideration of his claim.
Pursuant to that direction, the Divisional
Director, Social Forestry Division, Mau (for
short Director), by order dated 17.12.2016,
rejected the claim of the appellant upon
finding as below : (a) Rajendra Singh had a
living wife in Phoolmati against whom he
had instituted suit no.145 of 1994 which was
decided in terms of a compromise on
31.08.1997,
as
per
which
their
relationship as a married couple were to
continue; (b) Phoolmati claimed herself to be
the sole heir of Rajendra Singh and had
denied adoption of the appellant; (c) under
Dying in Harness Rules, 1974, preference is
to be accorded to the deceased's wife; (d) the
adoption deed relied by the appellant
appeared fraudulent as it recited that Rajendra
Singh, the adoptive father, was unmarried
even though he had a living wife in
Phoolmati; (e) the educational certificates of
the appellant, even those that were obtained
post the date of alleged adoption, reflected
the name of his natural parents, namely, Raj
Narain and Kamla; (f) the extract of Parivar
register also reflects the name of appellant's
father and mother as Raj Narain and Kamla,
respectively and, therefore, the plea of
adoption set up by the appellant is nothing
but fraudulent made with a view to make
unlawful gain. Assailing the order dated
17.12.2016 the appellant filed Writ A No.
10300 of 2017 by claiming that as the
adoption was by a deed of adoption, dated
07.02.2001, registered on 14.12.2009, there
was no justification to deny the benefit of
compassionate appointment to the appellant.
In the counter affidavit to the writ petition,
inter alia, the validity of the alleged adoption
was questioned. In the rejoinder affidavit, to
meet the objection that a married Hindu male
could not lawfully take in adoption without
the consent of his wife, a stand was taken that
Phoolmati, wife of Rajendra Singh, had left
her husband and that in Suit No.145 of 1994,
on
the
basis
of
compromise,
dated
31.08.1997, a decree of divorce came to be
passed on 01.09.1997, hence, her consent was
not required.

5. The learned Single Judge dismissed
the petition of the appellant upon finding
that: (a) there was no decree of divorce
156 INDIAN LAW REPORTS ALLAHABAD SERIES
obtained by Rajendra Singh (the deceased
employee) against his wife Phoolmati who
was alive at the time of the alleged
adoption; (b) the adoption deed discloses
Rajendra Singh's status as single, which
implies that there was no consent of his
wife for taking the appellant in adoption as
is the mandatory requirement of the proviso
to section 7 of the Hindu Adoption and
Maintenance Act, 1956 (for short the 1956
Act); (c) mere separate living by the wife,
or wife's estrangement from her husband,
would not obviate the requirement of her
consent to make a valid adoption. The
learned single Judge concluded that the
alleged adoption is invalid and also
fraudulent
because,
despite
alleged
adoption, the name of natural parents of the
appellant
continued
in
educational
certificates that were obtained post the date
of alleged adoption.

6. Sri B.B. Paul, learned counsel for the
appellant, has questioned the correctness of
the order passed by the learned Single Judge
by claiming that the learned Single Judge has
failed to notice that by a decree dated
31.08.1997 the marriage of Rajendra Singh
with his wife Smt. Phoolmati stood dissolved.
Moreover, even if it is assumed that there was
no legal divorce, she, by living separate from
her husband, had renounced the world
therefore her consent was not necessary. The
next submission is that the learned single
judge had failed to consider the import of
section 16 of the1956 Act which, upon
existence of a registered deed of adoption,
raises a presumption as to the validity of
adoption and since there was no serious
contest to the adoption of the appellant by
any of the successors of the deceased
employee, the appellant ought to have been
provided the benefit of adoption by raising
that
presumption.
In
support
of
this
submission reliance was placed on a decision
of the Apex Court in Laxmibai v.
Bhagwantbuva, (2013) 4 SCC 97 where it
was held that if there is a registered document
pertaining to the adoption there is a
presumption, under Section 16 of the 1956
Act, to the effect that the adoption has been
made in compliance with the provisions of
the
1956
Act, until
and
unless such
presumption is disproved.

7. Having noticed the submissions
made, on a careful perusal of the record, we
find that the submission of Sri Paul that there
exists a decree of divorce, dated 31.08.1997,
severing the marital bond between Rajendra
Singh and his wife Phoolmati, is contrary to
the record. The alleged decree, which has
been brought on the record as Annexure RA
III to the rejoinder affidavit filed in the writ
proceeding, is not a decree of divorce. It only
disposes off divorce proceeding in terms of
the compromise. The compromise records
payment of Rs.5000/- to Phoolmati towards
litigation expenses and its terms (at page 209
of the paper-book) are: (a) that Rajendra
Singh and Phoolmati shall continue to remain
husband and wife; (b) that Phoolmati's name,
as Rajendra Singh's wife, would be entered in
his service-book; and (c) that she would get
maintenance @ Rs.500 pm. In view of the
above, the submission of the learned counsel
for the appellant that on account of divorce
between Phoolmati and Rajendra Singh her
consent was not required for adoption has no
basis on facts and is rejected outright.

8. Before we weigh the merit of other
submissions made by the learned counsel for
the appellant, it would be apposite to notice
the provisions of sections 6, 7, 8 and 16 of the
1956 Act, the applicability of which on the
parties is not in issue. These are as below:

"6. Requisites of a valid adoption.--
No adoption shall be valid unless-
4 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
157

(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.

7. Capacity of a male Hindu to
take in adoption.--Any male Hindu who is
of sound mind and is not a minor has the
capacity to take a son or a daughter in
adoption:

Provided that, if he has a wife
living, he shall not adopt except with the
consent of his wife unless the wife 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.

Explanation.--If a person has
more than one wife living at the time of
adoption, the consent of all the wives is
necessary unless the consent of any one of
them is unnecessary for any of the reasons
specified in the preceding proviso.

8. Capacity of a female Hindu to
take in adoption.--Any female Hindu-

(a) who is of sound mind,

(b) who is not a 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 the
capacity to take a son or daughter in
adoption.

16. Presumption as to registered
documents
relating
to
adoptions.--
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."

9. From a perusal of the provisions
extracted above, it is clear that for an
adoption to be valid one of the conditions is
that the person taking in adoption must
have the capacity to adopt. As per section
7, a male Hindu, who is of sound mind and
is not a minor, could take a son or daughter
in adoption provided, if he has a wife
living, he shall not adopt except with the
consent of his wife unless the wife 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. In the
instant case, the argument on behalf of the
appellant is that as the wife had not been in
the company of her husband therefore it
could be taken that she had renounced the
world and, as such, her consent would not
be
required.
This
contention
was
specifically repelled by the learned single
judge by placing reliance on a decision of
the Apex Court in the case of Brajendra
Singh v. State of M.P., (2008) 13 SCC
158 INDIAN LAW REPORTS ALLAHABAD SERIES
161 where the Apex Court while dealing
with the capacity of a female Hindu to take
in adoption interpreted the provisions of
section 8 of 1956 Act, in paragraphs 15 to
17 and 19 of its judgment, as under:

"15. We are concerned in the
present case with clause (c) of Section 8.
The section brings about a very important
and far-reaching change in the law of
adoption as used to apply earlier in case of
Hindus. It is now permissible for a female
Hindu who is of sound mind and has
completed the age of 18 years to take a son
or daughter in adoption to herself in her
own right provided that (a) she is not
married; (b) or is a widow; (c) or is a
divorcee or after marriage her husband has
finally renounced the world or is ceased to
be a Hindu or has been declared to be of
unsound
mind
by
a
court
having
jurisdiction to pass a declaratory decree to
that effect. It follows from clause (c) of
Section 8 that Hindu wife cannot adopt a
son or daughter to herself even with the
consent of her husband because the section
expressly provides for cases in which she
can adopt a son or daughter to herself
during the lifetime of the husband. She can
only make an adoption in the cases
indicated in clause (c).

16. It is important to note that
Section 6(i) of the Act requires that the
person who wants to adopt a son or a
daughter must have the capacity and also
the right to take in adoption. Section 8
speaks of what is described as "capacity".
Section 11 which lays down the condition
for a valid adoption requires that in case
of adoption of a son, the mother by whom
the adoption is made must not have a
Hindu son or son's son or grandson by
legitimate
blood
relationship
or
by
adoption living at the time of adoption. It
follows from the language of Section 8
read with clauses (I) and (ii) of Section 11
that the female Hindu has the capacity and
right to have both adopted son and
adopted
daughter
provided
there
is
compliance with the requirements and
conditions of such adoption laid down in
the Act. Any adoption made by a female
Hindu who does not have requisite
capacity to take in adoption or the right to
take in adoption is null and void.

17. It is clear that only a female
Hindu
who
is
married
and
whose
marriage has been dissolved i.e. who is a
divorcee has the capacity to adopt.
Admittedly in the instant case there is no
dissolution of the marriage. All that the
evidence led points out is that the husband
and wife were staying separately for a
very long period and Mishri Bai was
living a life like a divorced woman. There
is conceptual and contextual difference
between a divorced woman and one who is
leading life like a divorced woman. Both
cannot be equated. Therefore in law
Mishri Bai was not entitled to the
declaration sought for. Here comes the
social issue. A lady because of her
physical deformity lived separately from
her husband and that too for a very long
period right from the date of marriage.
But in the eye of the law they continued to
be husband and wife because there was no
dissolution of marriage or a divorce in the
eye of the law. Brajendra Singh was
adopted by Mishri Bai so that he can look
after her. There is no dispute that
Brajendra Singh was in fact doing so.
There is no dispute that the property given
to him by the will executed by Mishri Bai
is to be retained by him. It is only the
other portion of the land originally held by
Mishri
Bai
which
is
the
bone
of
contention.
4 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
159

19. A married woman cannot
adopt at all during the subsistence of the
marriage except when the husband 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. If the husband is not
under such disqualification, the wife cannot
adopt even with the consent of the husband
whereas the husband can adopt with the
consent of the wife. This is clear from Section
7 of the Act. Proviso thereof makes it clear
that a male Hindu cannot adopt except with
the consent of the wife, unless the wife 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. It is relevant to note
that in the case of a male Hindu the consent
of the wife is necessary unless the other
contingency exists. Though Section 8 is
almost identical, the consent of the husband
is not provided for. The proviso to Section
7 imposes a restriction in the right of male
Hindu to take in adoption. In this respect the
Act radically departs from the old law where
no such bar was laid down to the exercise of
the right of a male Hindu to adopt oneself,
unless he dispossess the requisite capacity.
As per the proviso to Section 7 the wife's
consent must be obtained prior to adoption
and cannot be subsequent to the act of
adoption. The proviso lays down consent as a
condition precedent to an adoption which is
mandatory and adoption without wife's
consent would be void. Both proviso to
Section
7
and
8(c) refer
to
certain
circumstances which have effect on the
capacity to make an adoption."
 (Emphasis supplied)

10. Learned single judge upon
noticing that the provisions of the proviso
to section 7 of the 1956 Act are, in part,
pari materia to clause (c) of section 8 of
the 1956 Act, by applying the interpretation
accorded to clause (c) of section 8 of the
1956 Act by the Apex Court in Brajendra
Singh's case (supra), held that the
requirement of consent of the wife, under
the proviso to section 7 of the 1956 Act,
cannot be dispensed with where there is no
dissolution of marriage even though the
wife might be estranged from her husband
and staying separate. In our considered
view, the learned single judge was right in
holding that the consent of even an
estranged wife for taking in adoption would
be required, if the marriage has not been
dissolved. No doubt, consent of wife would
not be required where the marriage has
been dissolved or the wife has completely
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. But, here, it has not been proved that
the marriage was dissolved. Rather, the
document produced is to the contrary.
Further, there is nothing on record to
suggest that Phoolmati has completely
renounced the world or has ceased to be a
Hindu or has been declared of unsound
mind by any court. Mere staying separate
from one's husband may amount to
renouncing the husband but not the world.
Under
the
circumstances,
Phoolmati's
consent was required before her husband
could take in adoption.

11. Noticeably, there is no evidence
brought on record to demonstrate that
consent of Phoolmati was obtained or was
there, before her husband allegedly took the
appellant in adoption. In Ghisalal v.
Dhapubai, (2011) 2 SCC 298, the Apex
Court after laying emphasis on the
mandatory
requirement
of
obtaining
consent of wife before the husband could
160 INDIAN LAW REPORTS ALLAHABAD SERIES
validly take a son or a daughter in adoption,
interpreted the term consent, in paragraph
26 of the judgment, as follows:

"26. The term "consent" used in
the
proviso
to
Section
7
and
the
Explanation appended thereto has not been
defined in the Act. Therefore, while
interpreting these provisions, the court
shall have to keep in view the legal position
obtaining before enactment of the 1956 Act,
the object of the new legislation and apply
the rule of purposive interpretation and if
that is done, it would be reasonable to say
that the consent of wife envisaged in the
proviso to Section 7 should either be in
writing
or
reflected
by
an
affirmative/positive act voluntarily and
willingly done by her. If the adoption by a
Hindu male becomes subject-matter of
challenge before the court, the party
supporting the adoption has to adduce
evidence to prove that the same was done
with the consent of his wife. This can be
done
either
by
producing
document
evidencing her consent in writing or by
leading evidence to show that wife had
actively participated in the ceremonies of
adoption with an affirmative mindset to
support the action of the husband to take a
son or a daughter in adoption. The
presence of wife as a spectator in the
assembly of people who gather at the place
where the ceremonies of adoption are
performed cannot be treated as her
consent. In other words, the court cannot
presume the consent of wife simply because
she was present at the time of adoption.
The wife's silence or lack of protest on her
part also cannot give rise to an inference
that she had consented to the adoption."

(Emphasis supplied)

12. From the decision noticed above,
the legal principle deducible is that the
party propounding an adoption by a Hindu
male, who has a living wife, has to adduce
evidence to prove that the same was done
with the consent of his wife. This can be
done
either
by
producing
document
evidencing her consent in writing or by
leading evidence to show that wife had
actively participated in the ceremonies of
adoption with an affirmative mindset to
support the action of the husband to take a
son or a daughter in adoption. In other
words, the court cannot presume the
consent of wife simply because she was
present at the time of adoption. The wife's
silence or lack of protest on her part also
cannot give rise to an inference that she had
consented to the adoption.

13. Now, we shall examine the nature
of presumption that arises under section 16
of
the
1956
Act.
In Jai Singh v.
Shakuntala, (2002) 3 SCC 634, the Apex
Court had held that the presumption that
arises out of section 16 of the 1956 Act is
rebuttable and the inclusion of the words
"unless and until it is disproved" appearing
at the end of the statutory provision has
made the situation not that rigid but flexible
enough to depend upon the evidence on
record in support of adoption. The relevant
portion of that judgment, as found in
paragraph No.2 thereof, is extracted below:

"2. The section thus envisages a
statutory presumption that in the event of
there
being
a
registered
document
pertaining to adoption there would be a
presumption that adoption has been made
in accordance with law. Mandate of the
statute
is
rather
definite
since
the
legislature has used "shall" instead of any
other
word
of
lesser
significance.
Incidentally, however, the inclusion of the
words "unless and until it is disproved"
appearing at the end of the statutory
4 All. Bhanu Pratap Singh Vs. State of U.P. & Ors.
161
provision has made the situation not that
rigid but flexible enough to depend upon
the evidence available on record in support
of adoption. It is a matter of grave
significance by reason of the factum of
adoption and displacement of the person
adopted from the natural succession -- thus
onus of proof is rather heavy. Statute has
allowed some amount of flexibility, lest it
turns out to be solely dependent on a
registered adoption deed. The reason for
inclusion of the words "unless and until it is
disproved" shall have to be ascertained in
its proper perspective and as such the
presumption cannot but be said to be a
rebuttable presumption. Statutory intent
thus stands out to be rather expressive
depicting therein that the presumption
cannot be an irrebuttable presumption by
reason of the inclusion of the words just
noticed above."

14. Even in the decision in
Laxmibai's case (supra), relied by the
learned counsel for the appellant, the Apex
Court held that a very heavy burden is
placed upon the propounder to prove
adoption but once a registered document
recording the adoption is brought before
the court the onus shifts. The court
however clarified that this aspect must be
considered taking note of various attending
circumstances. The relevant portion of that
judgment i.e.paragraph 33, is extracted
below:

"33. The appellate court could
therefore, not have drawn any adverse
inference against the appellant-plaintiffs on
the basis of a mere technicality, to the
effect that the natural parents of the
adoptive child had acted as witnesses, and
not
as
executors
of
the
document.
Undoubtedly, adoption disturbs the natural
line of succession, owing to which, a
very heavy burden is placed upon the
propounder
to
prove
the
adoption.
However, this onus shifts to the person who
challenges the adoption, once a registered
document
recording
the
adoption
is
brought before the court. This aspect must
be considered taking note of various other
attending
circumstances
i.e.
evidence
regarding the religious ceremony (giving
and taking of the child), as the same is a
sine qua non for valid adoption."
 (Emphasis supplied)

15. The legal principle deducible from
the decisions noticed above is that once a
registered deed of adoption is produced
though there arises a presumption that the
adoption has been made in compliance with
the provisions of the 1956 Act but that
presumption is rebuttable. Whether that
presumption has been rebutted depends on
the facts of each case borne out from the
evidence on record.

16. In the instant case, the adoption
deed on which reliance has been placed by
the appellant declares Rajendra Singh as
unmarried whereas, it is established on the
record, he was married and had a wife
living on the date of adoption. Therefore
once it was proved that Rajendra Singh had
a living wife, the presumption, if any,
arising from that deed with regard to the
adoption being in accordance with the
provisions
of
the
1956
Act
stood
demolished because how could it be
presumed that the wife had given her
consent for her husband to take a son in
adoption when even the existence of that
wife is not acknowledged. In fact in the
adoption deed Rajendra Singh has been
described as unmarried. Thus, when
clinching evidence had come on board that
162 INDIAN LAW REPORTS ALLAHABAD SERIES
the person who allegedly took the appellant
in adoption had a living wife, whose
existence was denied in the deed, the
presumption, whatever available, stood
rebutted.

17. At this stage, we may notice another
statement of the learned counsel for the
appellant though not vehemently pressed as
an argument. It was stated that there were
property documents on record to show that
the estate of the deceased employee
(Rajendra Singh) had come to the appellant
and, therefore, for all practical purposes he
was the son of the deceased employee. We
find not much value in those facts because
here, to qualify as a dependent of an
employee who died in harness, the appellant
had set up a plea that he was the adopted son
of the deceased employee. Once that plea
stood discarded upon finding that a valid
adoption could not be established, as to how
the property of the deceased employee
devolved was not important and binding on
the authorities who were to deal with the
claim for compassionate appointment on the
strength of adoption. That apart, there were
other circumstances also, such as continuance
of name of natural parents of the appellant in
educational certificates, obtained after the
alleged date of adoption, to suggest that
adoption was sham may be to divest the
estranged wife of her claim in the deceased
employee's property.

18. For all the reasons recorded above,
we are of the considered view that the learned
single judge was justified in negativing the
claim of the writ petitioner (the appellant) for
compassionate appointment on the basis of
his alleged adoption by the deceased
employee.

19. The appeal is, accordingly,
dismissed.
----------
(2021)04ILR A162
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Special Appeal No. 66 of 2021

Brij Bhushan Maurya ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Uma Nath Pandey,Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Government Servants
Conduct Rules, 1956 - Rule 3(1) - UP
Government
Servants
(Discipline
&
Appeals)
Rules,
1999
-
Rule
7
-
Disciplinary
Enquiry
-
Punishment
-
Reversion - Major Penalty - Lack of Oral
Enquiry - Effect - Principle of Natural
Justice - Applicability - Held, where, in a
major penalty enquiry, after service of the
charge-sheet,
the
charge-sheeted
employee in his reply to the charge-sheet
does not admit the charge or refutes the
charge, it is mandatory to fix a date for an
oral enquiry - Failure to fix a date for the
oral enquiry in such circumstances would
vitiate the enquiry and the consequential
order of punishment - It is not necessary
for the charge-sheeted officer to pray for
an oral enquiry inasmuch as the moment
the charge-sheeted officer does not admit
the charge or refutes the charge, an oral
enquiry is required not only to comply
with the provisions of the 1999 Rules but
also the principles of natural justice. (Para
18)
Special Appeal allowed. (E-1)
Cases relied on :-