# Vijay Prakash Pandey v. Inspector General of Police H.Q. Alld. & Ors

- **Citation:** (2014) 1 ILRA 294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-06
- **Case number:** Civil Misc. Writ Petition No. 1715 of 2000
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-prakash-pandey-v-inspector-general-of-police-h-q-alld-ors-42782
- **Pages:** 6

## Headnote

Constitution
of
India-Art.-226-family
pension-claimed
by
petitioner
being
adopted
son-adoption
took
place
on
11.10.97-adoptive father died on 12.12.97adoption deed registered on 16.01.98 by
adoptive
mother-who
also
died
on
16.12.2002-till her death she got family
pension-when
adoptive
father
diedpetitioner was only six year old-at the time
1 All] Vijay Prakash Pandey Vs. Inspector General of Police H.Q. Alld. & Ors.
295
of death of adoptive mother-petitioner was
11 years old boy-once adoption found validfamily pension can not be denied-till
achieving age of majority- order impugned
quashed-direction issued to give family
pension within 3 months.

Held: Para-15
It is also relevant to mention that Smt.
Damyanti Devi, wife of deceased employee
had also died on 16.12.2002 and she got
family
pension
since
12.12.1997
to
16.12.2002. It had also been brought on
record that petitioner no.2- Vijary Prakash
Pandey (adopted son) was hardly six years
old at the time when his father Sri Brij Bihar
Pandey died on 12.12.1997 and when his
mother Smt. Damyanti Devi died on
16.12.2002, the petitioner no.2 was hardly
11 years old. This is most unfortunate that
in these circumstances once the adoption
was correct in the eyes of law, then there
was no occasion to deny the benefit of
family pension to petitioner no.2 (adopted
son) since his attainment of the majority.

Case Law discussed:
AIR 1983 SC 114; 1995 Law Suit (SC) 1102

## Text

294 INDIAN LAW REPORTS ALLAHABAD SERIES
Acquisition Act would be inconsistent with
the intention of Parliament as contained in
the Land Acquisition Act. Hence any such
GO. would be violative of the Land
Acquisition Act and would hence be invalid.
Such a G.O. will also violate Article 16 of
the Constitution as already mentioned
above."

12. The Full Bench has answered the
questions referred in the following
manner:-

"1.
The
Government
Orders/Circulars providing employment
to one member of a family of a person
whose land has been acquired (over and
above the compensation awarded under
the law) are invalid.

2. The acquiring body for whose
benefit the land is acquired are not bound
by such Government Order/Circular.

3.No writ can be issued directing the
acquiring body to consider the claim in
accordance
with
the
aforesaid
Order/Government Circular."

13. Learned counsel for the petitioner
tried to submit that Government Order
dated 15.06.1985 was not before the Court
in the case of Ravindra Kumar vs. District
Magistrate, Agra and others (supra). It is
also submitted that in the Government
Order dated 15.06.1985 only a preference is
to be given and it is not necessary that the
appointment is to be given to the person
whose land has been acquired.

14. The Full Bench has given
reasons for coming to the conclusion that
any such Government Order, which
provides
benefit
of
employment
is
contrary to the scheme as provided under
the Land Acquisition Act and hence,
would be invalid. Even in case, any
Government Order which provides that
preference in employment shall be given
to a person whose land has been acquired,
would be inconsistant with the intention
of the Parliament as contained in the Land
Acquisition Act. As such, I am of the
considered view that in view of the law
laid down by the Full Bench of this Court
in the case of Ravindra Kumar vs. Distirct
Magistrate, Agra and others (supra) the
petitioner is not entitled to get any benefit
in government employment on the ground
that his land has been acquired, even on
the basis of Government Order dated
15.06.1985.

15. The writ petition being devoid of
merit is hereby dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2014

BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI,J.

Civil Misc. Writ Petition No. 1715 of 2000

Vijay Prakash Pandey..... Petitioner
Versus
Inspector General of Police H.Q. Alld. &
Ors. Respondents

Counsel for the Petitioner:
Sri P.K. Dwivedi, Sri P.K. Srivastava

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Art.-226-family
pension-claimed
by
petitioner
being
adopted
son-adoption
took
place
on
11.10.97-adoptive father died on 12.12.97adoption deed registered on 16.01.98 by
adoptive
mother-who
also
died
on
16.12.2002-till her death she got family
pension-when
adoptive
father
diedpetitioner was only six year old-at the time
1 All] Vijay Prakash Pandey Vs. Inspector General of Police H.Q. Alld. & Ors.
295
of death of adoptive mother-petitioner was
11 years old boy-once adoption found validfamily pension can not be denied-till
achieving age of majority- order impugned
quashed-direction issued to give family
pension within 3 months.

Held: Para-15
It is also relevant to mention that Smt.
Damyanti Devi, wife of deceased employee
had also died on 16.12.2002 and she got
family
pension
since
12.12.1997
to
16.12.2002. It had also been brought on
record that petitioner no.2- Vijary Prakash
Pandey (adopted son) was hardly six years
old at the time when his father Sri Brij Bihar
Pandey died on 12.12.1997 and when his
mother Smt. Damyanti Devi died on
16.12.2002, the petitioner no.2 was hardly
11 years old. This is most unfortunate that
in these circumstances once the adoption
was correct in the eyes of law, then there
was no occasion to deny the benefit of
family pension to petitioner no.2 (adopted
son) since his attainment of the majority.

Case Law discussed:
AIR 1983 SC 114; 1995 Law Suit (SC) 1102

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. The present writ petition has been
filed in the nature of certiorari calling for
the records and to quash the orders dated
14.10.1999 and 11.06.1999.

2. The counter affidavit and
rejoinder affidavit have been exchanged
between the parties.

3. The case of the petitioner no.2 is
that he is adopted son of late Brij Bihari
Pandey, who was working as Constable in
Civil Police and died on 12.12.1997.

4. This petition is being filed by late
Smt.
Devanti
Devi
alias
Damyanti
Pandey, wife of Sri Brij Bihari Pandey
alongwith petitioner no.2- Sri Vijay Prakash
Pandey (adopted son of deceased employee).
Sri Brij Bihari Pandey in his life time has
desired to adopt a son and in this regard he
talked and convinced Sri Shashi Kant
Pandey for adoption of his elder son Vijay
Prakash Pandey (petitioner no.2) and in this
regard adoption ceremony was solemnized in
the presence of Pandit and other members of
the village which is known as "Datta
Homam". For a valid adoption, the physical
act of giving and taking is an essential
requisite
ceremony,
imperative
in
all
adoptions. And this requisite is satisfied in its
essence on expression of consent or an
executed deed of adoption.

5. The said documents regarding
adoption has been brought on the record as
annexure no.1 to the present writ petition.

6. The said documents were prepared
on 11.10.1997 and immediately thereafter Sri
Brij Bihari Pandey, the father of petitioner
no.2 died on 12.12.1997. An application
dated 13.01.1998 had been moved by Smt.
Damyanti Pandey for registration of the said
documents and the same was registered on
16.01.1998. She had also moved an
application before the Civil Judge (Senior
Division), Mau for succession certificate in
favour of the petitioner no.2 (her adopted
son) and finally name of the petitioner nos. 1
and 2 had been mutated in family register.
After due verification and enquiry the
District Magistrate, Mau has also issued
succession certificate in favour of the
petitioners.

7. In this background, petitioner no.1
had moved an application to the U.P. Police
Head Quarter, Allahabad to consider the case
of the petitioner for family pension and in
response the Finance Controller had also
informed to the Senior Superintendent of
296 INDIAN LAW REPORTS ALLAHABAD SERIES
Police, Ballia for incorporation of her
adopted son's name for family pension. In
this regard a legal opinion had also been
sought by the Senior Superintendent of
Police, Ballia vide his letter dated 06.11.1998
from the Senior Prosecution Officer and
finally through a letter dated 15.11.1998, the
Senior Superintendent of Police, Ballia had
informed to the U.P. Police Head Quarter,
Allahabad that as per the legal opinion
submitted in the present matter, Sri Vijay
Prakash Pandey (adopted son of Brij Bihari
Pandey) would be entitled for family pension
up to his attainment of majority and the
family pension benefit may be conferred in
his favour. Certain other correspondence
took place between the department but
finally the Finance Controller, U.P. Police
Head Quarter, Allahabad, vide order dated
14.10.1999 had declined for giving family
pension to the adopted son, specially on the
ground that his adoption deed had not been
executed in his life time and the same had
been executed after the demise of an
employee (Sri Brij Bihari Pandey) and
therefore, he is not entitled for any benefit.

8. He further states that under the
Hindu Law an adopted son continues the
line of the adoptive father for secular and
spiritual purposes and when a widow
adopts a son to her husband, the doctrine
of relation back makes sonship retroactive
from the moment of the death of the late
husband. The adopted son is deemed to
have been born on the death of the
adoptive father

9. Learned counsel for the petitioner
has further argued that in the present matter,
no doubt that an employee who had died on
12.12.1997, but in fact in his life time, the
adoption had been decided between husband
and wife and the documents had been
executed in the presence of the witnesses
on 11.10.1997 and finally the succession
certificate has also been issued in favour
of petitioner no.2 (Vijay Prakash Pandey).

10. Learned counsel for the petitioners
has apprised to the Court regarding Section
12
of
The
Hindu
Adoptions
and
Maintenance Act, 1956, for ready reference,
same is quoted below:-

"12. Effects of adoption.- An adopted
child shall be deemed to be the child of his or
her adoptive father or mother for all purposes
with effect from the date of the adoption and
from such date all the ties of the child in the
family of his or her birth shall be deemed to
be severed and replaced by those created by
the adoptive family:

Provided that--

(a) the child cannot marry any person
whom he or she could not have married if
he or she had continued in the family of
his or her birth;

(b) any property which vested in the
adopted child before the adoption shall
continue to vest in such person subject to
the obligations, if any, attaching to the
ownership of such property, including the
obligation to maintain relatives in the
family of his or her birth;

(c)the adopted child shall not divest
any person of any estate which vested in
him or her before the adoption."

11. By bare perusal of the said Section, it
is apparent that an adopted child shall be
deemed to be the child of his or her adoptive
father or mother for all purposes with effect
from the date of the adoption and from such
date all the ties of the child in the family of his
or her birth shall be deemed to be severed and
replaced by those created by the adoptive
family.
1 All] Vijay Prakash Pandey Vs. Inspector General of Police H.Q. Alld. & Ors.
297

12. Hindu Adoptions and Maintenance
Act clearly provides that an adopted child
shall be deemed to be the child of his
adoptive father or mother for all purposes
with effect from the date of the adoption and
from such date all ties of the child in the
family of his or her birth shall be deemed to
be severed and replaced by those created by
the adoption in the adoptive family. As a
consequence, when a widow adopts a child,
the child not merely acquires an adoptive
mother but also acquires other relationships
in the adoptive family, unless there is
anything to the contrary in the Hindu
Adoptions and Maintenance Act.

13. In the present matter, deed had
been prepared on 11.10.1997 before the
demise of Sri Brij Bihari Pandey. It has also
brought on record, the succession certificate
issued by the District Magistrate, Mau and
also decision taken by the Civil Judge
(Senior Division), Mau dated 19.03.1998 in
Original Suit No.30 of 1998 (Damyanti
Pandey alias Davanti Pandey & others)
(Annexure No.4 to the writ petition). The
complete record which has been brought
before this Court demonstrated that the
adoption was not fake and it is true that the
same had taken place and finally the same
has also been approved by the competent
authority.

14. The Hon'ble Apex Court in
Madhusudan Das Vs. Smt. Narayani Bai &
Ors., AIR 1983 SC 114) has held as
follows:-

"It is well settled that a person who
seeks to displace the natural' succession to
property by alleging an adoption must
discharge the burden that lies upon him
by proof of the factum of adoption and its
validity. It is also true that the evidence in
proof of the adoption should be free from
all suspicion of fraud and so consistent
and probable as to give no occasion for
doubting its truth. Nonetheless the fact of
adoption must be proved in the same way
as any other fact."

15. It is also relevant to mention that
Smt. Damyanti Devi, wife of deceased
employee had also died on 16.12.2002 and
she got family pension since 12.12.1997 to
16.12.2002. It had also been brought on
record that petitioner no.2- Vijary Prakash
Pandey (adopted son) was hardly six years
old at the time when his father Sri Brij Bihar
Pandey died on 12.12.1997 and when his
mother Smt. Damyanti Devi died on
16.12.2002, the petitioner no.2 was hardly 11
years old. This is most unfortunate that in
these circumstances once the adoption was
correct in the eyes of law, then there was no
occasion to deny the benefit of family
pension to petitioner no.2 (adopted son) since
his attainment of the majority.

16. Learned Standing Counsel has
relied the Government Order dated
24.08.1966 which talks about the family
pension and
he
has indicated
the
following provisions:-

"mi;qZDr ;kstuk 1 vizSy] 1965 ls izo`Rr gksxh vkSj
iSjk 5] 6] 10 vkSj 13 ds micU/kksa ds v/khu jgrs gq,
isU'ku ;ksX; vf/k"Bkuksa ds ,sls leLr ljdkjh
vf/kdkfj;ksa&LFkk;h ;k vLFkk;h&ij ykxw gksxh tks 1 vizSy]
1965 dks lsok esa Fks ;k mlds ckn HkrhZ fd;s tk;aA"

17. Bare perusal of the said
Government Order, it is apparent that the
same is applicable for giving pensionary
benefits and he has also indicated the "fVIi.kh
1&mi;qZDr 2 vkSj 3 esa lsok fu;qfDr ls igys oS/k :i
ls xksn yh xbZ lUrku Hkh lfEefyr gksxhA"

18. The adoption has taken place
prior to the retirement of an employee. It
298 INDIAN LAW REPORTS ALLAHABAD SERIES
does not talks about the situation where a
person dying in harness and adoption has
already taken place either in his life time
or after the demise of an employee.

19. In true sense, under the present
facts and circumstances of the case the
Government Order dated 24.08.1966
would not be applicable in the present
facts and circumstances of the case.

20. Learned counsel for the petitioners
has also drawn the attention of the Court
regarding decision in Chandan Bilasini Vs.
Aftabuddin Khan, reported in 1995 Law Suit
(SC) 1102. It is useful to quote the relevant
paragraphs, which are as below:-

"4. The first appellate court on the basis
of the oral evidence as well as the two
supporting documents held that there was a
valid adoption of the respondent Amaresh
Sarkar by the original plaintiff No.1. The
Division Bench of the High Court in appeal,
however, held that there was no valid
adoption. It appears to have drawn an
adverse inference on the basis of the fact that
the adoptive mother who was alive at the
time when the evidence was recorded by the
trial court, had not examined herself. It is
accepted by both sides that at the time when
the evidence was recorded the adoptive
mother was a very old lady 86 years of age
and she was too old to be produced in court
for giving evidence. The Division Bench
failed to take into account the fact that there
were three other witnesses who were present
at the time of the adoption ceremony who
were examined -one of them being the priest
and the other one being a person who was
also present at the time when the deed of
admission of adoption was executed by the
first plaintiff adoptive mother and was an
attesting witness to the deed. The mere fact
that some other persons who were also
present at the adoption ceremony were not
examined, cannot be considered as making
the adoption doubtful. There is clear
testimony relating to the ceremony of taking
and giving the respondent Amaresh Sarkar in
adoption as between the natural parents and
the
adoptive
mother.
The
registered
document regarding this adoption which was
executed within a month of the adoption by
the adoptive mother should also be given its
due weight as evidence of adoption. There is
also a second document executed by the
natural father after a lapse of two years.
Since the natural father would be interested
in executed such a document which would
give an advantage to his natural son the same
probative value may not be attached to the
second document. But the earlier document
which is executed by adoptive mother must
be given its due weight. It has been properly
proved and is a registered document.

5. Looking to the entire evidence which
is on record which goes to establish that
adoption took place by the ceremony of
giving and taking, we hold that there was a
valid adoption of the respondent Amaresh
Sarkar by the original first-plaintiff Chandan
Bilasini Dasi. After the coming into force of
the Hindu Adoptions and Maintenance Act of
1956, this adoption was made in accordance
with the provisions of Hindu Adoptions and
Maintenance Act.

6. On adoption of the respondent
Amaresh Sarkar by the widow of the
deceased Kalikrishna Sarkar, the adopted son
Amaresh Sarkar severed his ties with his
natural family and became a part of the
adoptive family. As such, Chandan Bilasini
Dasi became his mother and Kalikrishan
became his deceased father. Section 12 of the
Hindu Adoptions and Maintenance Act
clearly provides that an adopted child shall
be deemed to be the child of his adoptive
1 All] Parvez Vs. The State of U.P.
299
father or mother for all purposes with effect
from the date of the adoption and from such
date all ties of the child in the family of his or
her birth shall be deemed to be severed and
replaced by those created by the adoption in
the adoptive family. As a consequence, when
a widow adopts a child, the child not merely
acquires an adoptive mother but also
acquires other relationships in the adoptive
family, unless there is anything to the
contrary in the Hindu Adoptions and
Maintenance Act.

7. This position is reinforced by Section
14(4) which sets out that where a widow or an
unmarried woman adopts a child, any husband
whom she marries subsequently shall be
deemed to be the step-father of the adopted
child. In other words, the family relationship
gets crystalised as at the date of adoption. The
child will be deemed to be the child of the
parent who adopts the child and the existing or
deceased spouse of that parent (as the case may
be), if any, will be considered the child's father
or mother. A spouse subsequently acquired by
the adoptive parent becomes the step-parent of
the adopted child. The adopted child, however,
cannot divest any person of any property
already vested in that person (Section 12[c])."

21. Looking to the entire evidence
which has been brought on record in the
present writ petition clearly establish that the
adoption took place by the ceremony of
giving and taking even in his life time of the
deceased employee, the department can not
take a plea that in formal and in true sense the
execution of the deeds had not been taken
place in his life time and the same had been
carried out after the demise of an employee.

22. Bare perusal of the annexure no.1 to
the writ petition, it is apparent that the
ceremony of giving and taking had taken place
on 11.10.1997 and Sri Brij Bihar Pandey,
deceased employee died on 12.12.1997.

23. Therefore, as per the view taken by
the Hon'ble Apex Court, this Court is of the
view that the denial of the right of the
petitioner no.2 (adopted son) was not
justified and is not in accordance with law.

24. Therefore, the orders dated
14.10.1999 and 11.06.1999 (annexure nos.
12 and 15 of the writ petition) are hereby
quashed. Mandamus is issued to the
respondent no.1 to pay family pension to the
petitioner
no.2
(adopted
son)
since
16.12.2002, when his mother Damyanti Devi
has died till the attainment of his majority. It
is expected that same may be carried out
within three months from the date of
presentation of certified copy of this order,
before the respondent no.1.

25. The writ petition is, accordingly,
allowed.

26. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2014

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE MRS SUNITA AGARWAL, J.

Criminal Appeal No. 1728 of 2007

Parvez..... Appellant
Versus
The State of U.P...... Respondent

Counsel for the Petitioner:
Sri
Shudhanshu
Srivastava,
Sri
Rajul
Bhargava, Sri Sharfuddin Ahmad, Smt. Nayan
Shree, Sri S.M.N. Abaas Abbadi, Sri Shakil
Ahmad, Sri Sumit Goyal