Adoption Deed Executed After Parent’s Death Does Not Invalidate Adoption If Rites Were Performed Earlier: Orissa High Court

The Court was hearing a writ petition filed by the Union of India and the South Eastern Railway challenging an order of the Central Administrative Tribunal, Cuttack Bench, which had set aside the rejection of a claim for compassionate appointment and directed reconsideration of the claim.

A Division Bench comprising Justice Dixit Krishna Shripad and Justice Sibo Sankar Mishra, while considering the objection raised on the ground that the adoption deed had been executed in favour of the claimant seeking compassionate appointment only after his father (the deceased employee) died in harness, observed: “The Adoption Deed is registered long after the demise of employee concerned, is not much relevant to validity of adoption. It needs no mentioning that the performance of prescribed rites is constitutive of adoption, and subsequent execution & registration of the Deed of Adoption is only evidentiary. In other words, the subject Deed only records the event of adoption”.

The petitioners were represented by Senior Panel Counsel R.K. Kanungo, while the opposite parties were represented by Advocate D.K. Mohanty.

Background

The case arose from a claim for compassionate appointment following the death in harness of a railway employee. The widow of the deceased employee and the claimant, asserting himself to be the adopted son, sought appointment on compassionate grounds.

The claim was rejected by the Railway authorities on the ground that the adoption deed had been executed and registered after the death of the employee, and that the adoption was therefore not valid for the purposes of compassionate appointment under the applicable Railway Board policy.

Aggrieved by the rejection, the claimants approached the Central Administrative Tribunal, which quashed the rejection order and directed the authorities to reconsider the claim.

The Union of India and the Railway administration assailed the Tribunal’s order before the High Court.

Court’s Observation

The High Court noted that the death of the employee in harness and the status of the widow were undisputed. The principal controversy was whether the claimant was the legally adopted son of the deceased employee.

The Court took note of a judgment and decree passed by a competent civil court declaring the claimant to be the adopted son, which had attained finality. While observing that such a judgment, being one in personam, did not bind the Railway authorities as non-parties, the Court held that it nevertheless possessed evidentiary value and could not be ignored altogether.

Turning to the law governing adoption, the Court referred to the requirements of a valid adoption under Hindu personal law and the Hindu Adoption and Maintenance Act, 1956. It observed that adoption is completed upon performance of the essential ceremonies, including giving and taking, and that registration of an adoption deed is not a sine qua non for validity, while further stating that performance of prescribed rites is constitutive of adoption and subsequent execution & registration of the Deed of Adoption is only evidentiary.

“This subtle difference between the accomplishment of adoption and the subsequent execution of the document of adoption cannot be ignored, be it under the shaastrik process or under the provisions of the Hindu Adoption & Maintenance Act, 1956, more particularly when there is a civil court judgment”, the Bench further remarked.

The Court rejected the contention that adoption must be evidenced by a deed executed before the death of the employee, holding that the adoption in the present case had been accomplished several years earlier through performance of prescribed rites. The subsequent adoption deed, though executed after the employee’s demise, merely recorded an event that had already taken place.

The Bench further held that neither in Section 17(1) of the Registration Act, 1908, nor under the provisions of the Hindu Adoption and Maintenance Act, 1956, “ Adoption Deed is a sine qua non for validity of adoption”, while further reaffirming that “once the requisites of valid adoption …are met, adoption takes effect, regardless of registration”.

Furthermore, while noting that “subject to the presumption of validity of registered Adoption Deed enacted in Section 16 of the 1956 Act, the burden of proof of adoption lies on the person who asserts it”, the Court held that “In the case at hand, the burden is duly discharged by the OPs by producing the judgments & decrees in two suits, which discussed & decided the factum & legality of adoption”.

The Bench also referred to the Allahabad High Court’s decision in Shanu Kumar v. The Nagar Ayukt Municipal (Commissioner) wherein it was held that “an Administrative Officer cannot question the validity of a registered adoption deed for rejecting compassionate appointment”.

While clarifying that “in the domain of public employment, it is open to the employer to regulate the terms & conditions of appointment on compassionate grounds”, the Court observed that the Tribunal had correctly appreciated the evidentiary material, including civil court findings, and had not committed any legal infirmity in directing reconsideration of the compassionate appointment claim.

Conclusion

Finding no merit in the challenge, the Court dismissed the writ petition and upheld the Tribunal’s direction to reconsider the claim for compassionate appointment within the stipulated period.

Cause Title: Union of India And Others v. K. Manoj Patra And Others

Appearances

Petitioners: R.K. Kanungo, Senior Panel Counsel

Respondents: D.K. Mohanty, S. Nayak, B.N. Behera and S. Das, Advocates

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