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Minor Soorya Prakash vs The Tahsildhar on 1 August, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.08.2018
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD) No.6784 of 2017

Minor Soorya Prakash
S/o.(late) Paneer Selvam
H.2/26 Poonga Nagar
Pudukottai Taluk and District
represented through his Grandmother and
next friend
Saraswathi @ Sarasu … Petitioner
vs.
The Tahsildhar
Pudukottai Taluk Office
Pudukottai District … Respondent

PRAYER: Writ Petition filed under Article 226 of the Constitution of India
for issuance of writ of mandamus directing the respondent to include the name
of the petitioner’s grandson Minor Soorya Prakash in the legal heir
certificate issued in his proceedings No.Pa.Mu.1130/2016(a-5) dated
01.04.2016.

!For Petitioner : Mr.N.Balakrishnan

For Respondent : Mr.J.Gunaseelan Muthiah
Additional Government Pleader

:ORDER

The grievance of the petitioner is that his request for inclusion of
his name in the legal heirship certificate of late Paneerselvam has not been
considered and that the mother of the late Paneerselvam has been shown as
legal heir. The petitioner herein claims to be the adopted son of late
Paneerselvam through an adoption deed dated 05.01.2016 and the said
Paneerselvam died on 14.10.2015. Subsequently when legal heirship
certificate was issued for late Paneerselvam, the mother of Paneerselvam
alone shown as a legalheir and the petitioner’s name was omitted. Though the
adoption deed is unregistered, the Registration Act does not mandate such
registration and as such the respondent may not be justified in seeking for
registration of the adoption deed. This aspect has been settled in a judgment
of the Honourable Apex Court in Parampal Singh through Father -vs- National
Insurance Company and another reported in 2013(3) 3 Supreme Court Cases 409.
The relevant portion of the said extract is as follows:
?14. In this context, it will be worthwhile to note the requirement of
registration of an Adoption Deed. Section 17 of the Registration Act
specifically refers to the documents of which registration is compulsory. The
deed of adoption is not one of the documents mentioned in sub-section 1 of
Section 17 which mandatorily required registration. Sub-section 3 of Section
17 only refers to the mandatory requirement of registration of an
authorization that may be given for adopting a son executed after 01.01.1872
if such authorization was not conferred by a Will. Dealing with the said
provision relating to authorization, it has been held in the decision
reported in Vishvanath Ramji Karale V. Rahibai Ramji Karale and others – AIR
1931 Bombay 105 by a deed of adoption as distinguished from authority to
adopt does not require registration.

15. Keeping the above statement of law in mind as regards the procedure to be
followed for a valid adoption and the statutory stipulation that an adoption
deed does not require registration, the claim of the appellant as the adopted
son of the deceased requires to be considered. We find from the record that
the appellant has produced Exhibit AW1/R which is the copy of the Adoption
Deed. To appreciate the claim of the appellant in the proper perspective the
contents of the said document can be usefully referred to which reads as
under:

?TRUE TRANSLATION IN ENGLISH Stamp ADOPTION DEED

1. Ajit Singh son of Surta Singh son of Deva Singh, am residing at village
Dhariwal Kalan, Tehsil Distt-Gurdaspur, Punjab (hereinafter called the
first party). That I am unmarried so I have no children. Keeping in mind that
in absence of the children one becomes without any care. Hence, for the
purpose of proper maintenance a son is necessary. So, I have thought it fit
to take Master Parampal son of Sh. Santokh Singh and Smt. Nirmal Kaur
(hereinafter called the second party) resident of village Dhariwal Kalan in
adoption and they have decided to give. Master Parampal?s date of birth is 8-
12-1996. His bringing up is being done by me and I am planning to send him to
school. For the interest of his health and medication I myself do care.
Parampal Singh is a very obedient boy and he always remains obedient to me
and show me utter respect. I always have a great affection for him. I want
that whatever I leave behind be owned by Parampal Singh. I, in the presence
of all respected persons and Panchayat, adopt Master Parampal Singh as my son
and in the ceremony goods and sweets are distributed for the happiness of one
and all.

Adoption Deed is reduced in writing for the purpose of proof.

First party Second party

Ajit Singh LTI Sd/-
Sd/- Gurbax Singh Nirmal Kaur
Sarpanch 15/2/1999 Sd/-
Gram Panchayat Seal Stamp
Dhariwal Kalan

Witnesses:- Witnesses:-
Sd/- Sd/-
Nishan Singh Tarsem Singh
S/o-Dayal Singh S/o-Bawa Singh
Vill- Chhina Retwala R/o-Dhariwalkalan
15/2/1999 Sd/-
Karnail Singh
Nambardar
Vill-Kallu Sohal?

2. Likewise the adopted child is also deemed to be the child of the adopted
father as per Section 12 of the Hindu Adoption Maintenance Act. This
proposition came up for consideration before the this Court in M.G.Mamtha
and other -vs- Tahsildhar, Dhenkanikottai Taluk Office reported in 2018 (1)
CTC 814 and a learned judge of this Court had rendered his findings as
follows:

?9.Section 12 of the Hindu Adoptions and Maintenance Act, 1956 deals with
effects of adoption. It reads as follows: “12.Effect of adoptions:- 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 adoption in 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.”

10.The above said provision of law has come up for consideration before the
Hon’ble Supreme Court in a case reported in 2003(4)SCC 71, (Namdev Vyankat
Ghadge v. Chandrakant Ganpat Ghadge), wherein at paragraph Nos.17 and 18, it
has been observed as follows:

“17.It is plain and clear that an adopted child shall be deemed to be the
child of his or her adopted father or mother for all purposes with effect
from the date of adoption as is evident from the main part of Section 12.
Proviso (c) to Section 12 in clear terms states that the adopted child shall
not divest any person of any estate, which vested in him or her before the
adoption.

18.In the case of Dharma, ((1988) 2 SCC 126) aforementioned, the adopted son
became a member of coparcenary with Dharma and there was no question of
divesting of any property already vested in the view expressed by this Court
in Vasant, ((1987) 1 SCC 160).”

11.In fact, the Apex Court relied on the earlier decisions made and reported
in 1998(2)SCC 126, (Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe) and
1987(1)SCC 160, (Vasant v. Dattu), to hold that the adopted son therein
became a member of the Coparcenary, entitled to claim share in the property.

12.Perusal of the above said provision of law as well as the decision of the
Apex Court, as discussed supra would show without any ambiguity that an
adopted child, from the date of the legal adoption, becomes the child of
adoptive father or mother for all purposes since such child severed his or
her ties in the family of his or her birth from the said day onwards.
Consequently, all the ties of the child are replaced in the adoptive family
created by adoption. Though such adopted child, in the adoptive family, is
not the child by biological creation, however, it should be born in mind that
such adopted child is the child of the adoptive family by legal creation,
which status certainly confers on such child all such rights as a biological
child in the adoptive family. Once such right is conferred under law, the
said child is to be considered, treated, looked into, given the status as the
child of the adoptive family, as the prefix “adopted” is bound to vanish or
atleast loose its significance any more for any purpose from the day of
adoption. Hence, the respondent is not empowered to deny the same and refuse
to issue the Legal Heirship Certificate to the second petitioner, as she is
to be treated as the child of the deceased Chandrasekar for all purposes and
consequently, she becomes the Class I heir of the deceased and thus, entitled
to get her name also included in the Legal Heirship Certificate.

13.At the same time, it is to be noted that a duty is cast upon the competent
authority, before whom such an application is made, to get himself satisfied
as to the genuineness of the supportive documents produced in support of such
claim of adoption, like deed of adoption, etc., Only when such authority has
any reasonable doubt in his mind with regard to genuineness of such adoption,
that too, after conducting an enquiry in the locality, he can direct the
parties to approach the Civil Court and get their rights established.
Otherwise, the authority has to issue the Legal Heirship Certificate based on
such documents. In this case, the respondent has not doubted the genuineness
of the documents produced by the petitioners in support of their claim
including the deed of adoption. Therefore, there cannot be any legal
impediment for the respondent in issuing a Legal Hiership Certificate to the
petitioners, as sought for by them?.

3. In the light of the above said propositions the respondent may not
be justified in keeping the legalheir certificate and the petitioner’s
representation pending without incorporating petitioner’s name in the legal
heirship certificate of late Paneer Selvam.

4.In the light of the above observation, there shall be a direction to the
respondent to consider the petitioners representation in the light of the
above and pass necessary order within a period of two weeks from the date of
receipt of a copy of this order.

5. With the above directions, this writ petition is disposed of. No costs.

To

The Tahsildhar
Pudukottai Taluk Office
Pudukottai District

.

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