# Sohan Lal v. Estate of Late Chunni Lal & Ors

- **Citation:** (2022) 12 ILRA 945
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-30
- **Case number:** Matters Under Article 227 No. 3199 of 2019
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sohan-lal-v-estate-of-late-chunni-lal-ors-48076
- **Pages:** 8

## Headnote

Law
-
Hindu
Adoptions
and
Maintenance
Act,
1956-Section
16Petitioner claimed to be an adopted son of one
employee in Irrigation Department-he died in
harness-Application
for
succession
decided
exparte in Petitioner's favour-Respondent filed
restoration claiming adoption earlier to that of
Petitioner-allowed-case was dismissed-Appeal
allowed against the Petitioner-impugned orderdirected succession in favour of Respondentadoption deed of the Respondent no.2 is validduly recorded in the service book-Petitioner
recorded as nephew-adoption of Respondent is
valid u/s 16 of the Act, 1956.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

12 All. Sohan Lal Vs. Estate of Late Chunni Lal & Ors.
945
within the cadre and transfer beyond the
cadre/outside the district is ordinarily not
concerned under the Rules. A transfer
outside the district can be considered in
normal circumstances only in accordance
with the Rules. Rule 8(2)(d) of the Posting
Rules, 2008 provides that in normal
circumstances the applications for InterDistrict Transfer of Female Teachers will
not the entertained before 5 years of
completing their posting. However, the
Rule contemplates that in exceptional or
extra-ordinary circumstances an application
for transfer can be considered by the Basic
Education
Board/Director
(Basic
Education) even before the expiry of such
term. The question whether in a given case
the
exceptional
or
extra-ordinary
circumstances exists or not has to be
examined
by
the
Basic
Education
Board/Director (Basic Education).

17. In such circumstance, the writ
petition stands disposed of by permitting
the petitioner to represent the matter before
the
Director,
Basic
Education,
U.P.,
annexing all the materials in support of her
plea
that
there
exists
exceptional
circumstances justifying her transfer from
district Bahraich to district Bareilly along
with certified copy of the order of this
Court within two weeks from today.

18. In the eventuality of such a
representation being filed within the time
allowed, it is expected that the Director,
Basic Education, U.P., shall examine as to
whether the ground on which the petitioner
is seeking her transfer would fall within the
exceptional circumstances or not and pass a
reasoned and speaking order within further
period of four weeks from the date of
receipt of the representation of the
petitioner along with certified copy of this
order.

19. The writ petition stands disposed
of
with
the
aforesaid
observations/
directions.
----------
(2022) 12 ILRA 945
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.11.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Matters Under Article 227 No. 3199 of 2019

Sohan Lal ...Petitioner
Versus
Estate of Late Chunni Lal & Ors.
 ...Respondents

Counsel for the Petitioner:
Dharmendra Kumar Singh, Ankit Kumar
Singh

Counsel for the Respondents:
C.S.C., Dinesh Kr. Raizada, Sarvajeet
Dubey

Civil
Law
-
Hindu
Adoptions
and
Maintenance
Act,
1956-Section
16Petitioner claimed to be an adopted son of one
employee in Irrigation Department-he died in
harness-Application
for
succession
decided
exparte in Petitioner's favour-Respondent filed
restoration claiming adoption earlier to that of
Petitioner-allowed-case was dismissed-Appeal
allowed against the Petitioner-impugned orderdirected succession in favour of Respondentadoption deed of the Respondent no.2 is validduly recorded in the service book-Petitioner
recorded as nephew-adoption of Respondent is
valid u/s 16 of the Act, 1956.

W.P. dismissed. (E-9)

List of Cases cited:

1. Lakshman Singh Kothari Vs Smt. Rum Kanwar
reported in AIR 1961 SC 1378
946 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Atluri Brahmanandam (D) Vs Anne Sai Bapuji
reported in (2010) 14 SCC 466
(Delivered by Hon'ble Abdul Moin, J.)

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 exparte 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. 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.
12 All. Sohan Lal Vs. Estate of Late Chunni Lal & Ors.
947

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 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
948 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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
12 All. Sohan Lal Vs. Estate of Late Chunni Lal & Ors.
949
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). 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.
Presumption
as
to
registered documents relating to adoptionWhenever 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 subsection (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
950 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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. 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
12 All. Sohan Lal Vs. Estate of Late Chunni Lal & Ors.
951
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. 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. 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
952 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
----------
(2022) 12 ILRA 952
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2022
BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Government Appeal No. 1654 of 1992

State of U.P. ...Appellant
Versus
Omvir Singh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri Ravindra Singh, Sri Ajendra Kumar, Sri
R.P.S. Chauhan, Sri Shivam Yadav

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 378 - Indian
Penal Code, 1860 - Sections - 34, 201 -
302 - Government Appeal - Acquittal -
offence of murder - FIR - accused husband
with the help of other accused persons killed
his wife (who was suffering from back pain
since long) by throwing her in a jute bag in
the canal - prosecution has based its case on
last seen theory as well as fact of throwing
the dead body in to the canal which was seen
by two witnesses PW-3 & PW-4, but they have
given different versions in their testimony -
Although, the evidence of last seen is not at
all
worth
believing
as
same
was
not
corroborates with evidence of record - court
finds
that,
case
is
partly
based
on
circumstantial evidence & partly based on
destroying the evidence & further, no motive
of committing offences is proved - held - no
two views are possible in this matter and
thus, no other option but to conquer with the
findings recorded by the learned trial court -
consequently,
Government
Appeal
stands
dismissed. (Para -26, 27, 29)

Appeal Dismissed. (E-11)

List of Cases cited:

1. M.S. Narayana Menon @ Mani Vs St. of Kerala
& anr., (2006) 6 S.C.C. 39,