V.Mangalam v. Director of Local Fund Audit, Kuralagam, Chennai-108 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 3.4.2009CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUWrit Petition No.28867 of 2006V.Mangalam .. Petitioner vs.1. Director of Local Fund Audit, Kuralagam, Chennai-108.2. Commissioner, Panchayat Union, Cuddalore. .. RespondentsWrit Petition under Article 226 of the Constitution of India,came to be numbered on transfer of Original Application No.6537 of1997 praying to set aside the order of second respondent inNa.Ka.7/5316/93, dated 23.6.1997 and consequently direct the secondrespondent to grant family pension and all other superannuationbenefits to the applicant together with interest at 18% p.a. onamounts with-held.For petitioner : Mr.Sundar NarayanFor respondents : Mr.P.Gurunathan, Govt. AdvocateORDERThe petitioner claims that she is the adopted daughter of LatePadma, who worked as a Rural Women's Welfare Organiser under theCuddalore Panchayat Union. The said Padma was married to oneBalasubramanian and after their marriage, they never had any issuearising out of the marriage. The said Balasubramanian pre-deceasedher. It is stated that the said Padma, before her death on 1.8.1993,adopted the petitioner as her daughter. In the Nomination Form, dated24.2.1989, she had described the petitioner as her adopted daughterand she was 12 years old and was unmarried. The nomination wascounter signed by second respondent-Commissioner, Panchayat Union,Cuddalore. Even in Form-A submitted for receiving the DCRG, thepetitioner was shown as the adopted daughter. https://hcservices.ecourts.gov.in/hcservices/

2. Acting on the strength of the said nomination, the petitionerwas paid Rs.60,000/- towards Family Benefit Fund through the LICPension Group Scheme, by way of Account Payee Cheque, dated13.5.1995. She was also paid the Surrender Leave Salary as per theproceedings of the second respondent, dated 20.12.1994. It was paidto her on her producing Succession Certificate.3. However when she applied for Family Pension, she was informedby an order dated 23.6.1997 that her request for Family Pension mustbe submitted in Form-12 and a Succession Certificate from a CivilCourt must be enclosed. It was stated that thereafter, the questionof grant of Family Pension will be considered. Challenging the saidorder, the petitioner filed Original Application No.6537 of 1997before the Tamil Nadu Administrative Tribunal, Chennai. 4. On notice from the Tribunal, the first respondent-Director ofLocal Fund Audit, filed a reply affidavit, dated 24.12.1997. Thestand taken by the first respondent is found reflected in theaverments made in paragraph 5 of the reply affidavit, which are asfollows: " .... The Family Pension proposals were examined withreference to Tamil Nadu Pension Rules 1978 as thepensionary benefits of deceased employee are admitted withreference to rules outlined in Tamil Nadu Pension Rules1978. As per the Tamil Nadu Pension Rules, an adopted sonor daughter of an employee is entitled for Family Pension.But in the instant case the bonafide of the adoption hasnot been proved as per Section 16 of Hindu Adoption andMaintenance Act 1956. As the adoption of Mangalam byTmt.Padma deceased employee has not been substantiated bymeans of any Registered written documents, this respondentin his letter K.Dis.No.18842/97 dated 6.6.97 has returnedthe Family Pension proposals stating that as per PensionRules Mangalam is not eligible for Family Pension. ...... ......(d) This respondent's demand for documentary proof ofadoption is legal and the same is demanded as per theHindu Adoption and Maintenance Act 1956,The respondent respectfully submits that theGovernment authorities have acted under the provisions ofthe Hindu Adoption and Maintenance Act 1956 and Tamil NaduPension Rules 1978 and hence applicant's allegationscontrary to the above facts are not correct. .... "(emphasis added) https://hcservices.ecourts.gov.in/hcservices/

5. In view of the abolition of the Tribunal, the OriginalApplication stood transferred to this Court and was re-numbered asWrit Petition No.28867 of 2006.6. Mr.Sundar Narayan, learned counsel for the petitionercontended that under Section 16 of the Hindu Adoptions andMaintenance Act (for short, 'the HAMA'), if there is a registereddocument produced before any Court purporting to record an adoptionmade and is signed by the person giving and the person taking childin adoption, the Court shall presume that the adoption has been madein compliance with the provisions of the HAMA, unless and until it isdisproved. Therefore, learned counsel for the petitioner says thatunder the HAMA, it is not mandatory to register a document. Butnevertheless, the obligation to prove the adoption in the absence ofa registered document, vests only with the person who claims to haveadopted a child and in order to prove that there was a validadoption, Chapter-II of the HAMA will have to be followed. However,learned counsel appearing for the petitioner states that, it is afact that Late Padma, her alleged adopted mother, had nominated herin Forms A and B as her adopted daughter. Insofar as the FamilyBenefit Fund and the Surrender Leave Salary are concerned, theamounts have been paid to her. But in respect of Family Pensionalone, the same respondents cannot take a contrary stand. 7. The nomination in the Form submitted by a Government servant,cannot be a final proof to establish legal-heirship. The SupremeCourt has held that a nominee in such circumstances, can only betaken as a trustee and cannot inherit the amounts paid pursuant tosuch nomination, unless otherwise such person is also a legal heir ofthe deceased entitled to succeed to her estate. 8. In the present case, the respondents have demanded aSuccession Certificate from an appropriate Civil Court as a pre-condition for examining her request for Family Pension. Thepetitioner now stands on a hyper-technical ground by solely basingher claim on the nomination form. If there is a doubt on the part ofthe respondents, as expressed in the reply affidavit, the onus is onthe petitioner to prove that she is the adopted daughter. Meredescription in the nomination form showing her as the adopteddaughter, cannot be a conclusive proof. 9. On one hand, the petitioner's counsel contends that Section16 of HAMA is not mandatory, but on the other hand, he wants to relyupon the nomination under Forms A & B given by Late Padma as aconclusive proof. The conclusive proof in respect of the HAMA isonly based upon Section 16. The provision itself makes it clear thatit is only a rebuttal presumption. While the petitioner may becorrect in stating that the reply affidavit filed by the first https://hcservices.ecourts.gov.in/hcservices/ respondent regarding Section 16 of the HAMA may not be in consonancewith the provisions of HAMA, but, at the same time, the petitionercannot shirk her responsibility in proving to the satisfaction of theauthorities that she is the adopted daughter of Late Padma. Forreceiving the Family Pension, it is not enough to be a legal heir,but one must come within the definition of the term "Family" underRule 49 of the Tamil Nadu Pension Rules.10. The learned counsel appearing for the petitioner states thatthe matter may be remitted to the consideration of second respondent,so that an appropriate enquiry may be conducted by the secondrespondent. Such a course of action is impermissible, because theentire claim is based upon the alleged adoption made by Late Padma.The petitioner will have to prove such an adoption only before acompetent Civil Court. Only on the basis of such proof, she can renewher request with the respondents for the Family Pension.11. The Writ Petition stands dismissed with the observationsmade above. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarcs To1. Director of Local Fund Audit, Kuralagam, Chennai-108.2. Commissioner, Panchayat Union, Cuddalore. 1 cc To Mr.R.Yashod Vardhan, Advocate, SR.13102.1 cc To The Government Pleader, SR.12586.Writ Petition No.28867 of 2006 RSI(CO)RVL 15.04.2009