The petitioner claims that she is the adopted daughter of Late Padma, who worked as a Rural Women's Welfare Organiser under the Cuddalore Panchayat Union. The said Padma was married to one Balasubramanian and after their marriage, they never had any issue arising out of the marriage. The said Balasubramanian pre-deceased her. It is stated that the said Padma, before her death on 1.8.1993, adopted the petitioner as her daughter. In the Nomination Form, dated 24.2.1989, she had described the petitioner as her adopted daughter and she was 12 years old and was unmarried. The nomination was counter signed by second respondent-Commissioner, Panchayat Union, Cuddalore. Even in Form-A submitted for receiving the DCRG, the petitioner was shown as the adopted daughter.
2. Acting on the strength of the said nomination, the petitioner was paid Rs.60,000/- towards Family Benefit Fund through the LIC Pension Group Scheme, by way of Account Payee Cheque, dated 13.5.1995. She was also paid the Surrender Leave Salary as per the proceedings of the second respondent, dated 20.12.1994. It was paid to her on her producing Succession Certificate.
3. However when she applied for Family Pension, she was informed by an order dated 23.6.1997 that her request for Family Pension must be submitted in Form-12 and a Succession Certificate from a Civil Court must be enclosed. It was stated that thereafter, the question of grant of Family Pension will be considered. Challenging the said order, the petitioner filed Original Application No.6537 of 1997 before the Tamil Nadu Administrative Tribunal, Chennai.
4. On notice from the Tribunal, the first respondent-Director of Local Fund Audit, filed a reply affidavit, dated 24.12.1997. The stand taken by the first respondent is found reflected in the averments made in paragraph 5 of the reply affidavit, which are as follows:
" .... The Family Pension proposals were examined with reference to Tamil Nadu Pension Rules 1978 as the pensionary benefits of deceased employee are admitted with reference to rules outlined in Tamil Nadu Pension Rules 1978. As per the Tamil Nadu Pension Rules, an adopted son or daughter of an employee is entitled for Family Pension. But in the instant case the bonafide of the adoption has not been proved as per Section 16 of Hindu Adoption and Maintenance Act 1956. As the adoption of Mangalam by Tmt.Padma deceased employee has not been substantiated by means of any Registered written documents, this respondent in his letter K.Dis.No.18842/97 dated 6.6.97 has returned the Family Pension proposals stating that as per Pension Rules Mangalam is not eligible for Family Pension.
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(d) This respondent's demand for documentary proof of adoption is legal and the same is demanded as per the Hindu Adoption and Maintenance Act 1956, The respondent respectfully submits that the Government authorities have acted under the provisions of the Hindu Adoption and Maintenance Act 1956 and Tamil Nadu Pension Rules 1978 and hence applicant's allegations contrary to the above facts are not correct. .... "
(emphasis added)
5. In view of the abolition of the Tribunal, the Original Application stood transferred to this Court and was re-numbered as Writ Petition No.28867 of 2006.
6. Mr.Sundar Narayan, learned counsel for the petitioner contended that under Section 16 of the Hindu Adoptions and Maintenance Act (for short, 'the HAMA'), if there is a registered document produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of the HAMA, unless and until it is disproved. Therefore, learned counsel for the petitioner says that under the HAMA, it is not mandatory to register a document. But nevertheless, the obligation to prove the adoption in the absence of a registered document, vests only with the person who claims to have adopted a child and in order to prove that there was a valid adoption, Chapter-II of the HAMA will have to be followed. However, learned counsel appearing for the petitioner states that, it is a fact that Late Padma, her alleged adopted mother, had nominated her in Forms A and B as her adopted daughter. Insofar as the Family Benefit Fund and the Surrender Leave Salary are concerned, the amounts have been paid to her. But in respect of Family Pension alone, 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 Supreme Court has held that a nominee in such circumstances, can only be taken as a trustee and cannot inherit the amounts paid pursuant to such nomination, unless otherwise such person is also a legal heir of the deceased entitled to succeed to her estate.
8. In the present case, the respondents have demanded a Succession Certificate from an appropriate Civil Court as a pre-condition for examining her request for Family Pension. The petitioner now stands on a hyper-technical ground by solely basing her claim on the nomination form. If there is a doubt on the part of the respondents, as expressed in the reply affidavit, the onus is on the petitioner to prove that she is the adopted daughter. Mere description in the nomination form showing her as the adopted daughter, cannot be a conclusive proof.
9. On one hand, the petitioner's counsel contends that Section 16 of HAMA is not mandatory, but on the other hand, he wants to rely upon the nomination under Forms A & B given by Late Padma as a conclusive proof. The conclusive proof in respect of the HAMA is only based upon Section 16. The provision itself makes it clear that it is only a rebuttal presumption. While the petitioner may be correct in stating that the reply affidavit filed by the first respondent regarding Section 16 of the HAMA may not be in consonance with the provisions of HAMA, but, at the same time, the petitioner cannot shirk her responsibility in proving to the satisfaction of the authorities that she is the adopted daughter of Late Padma. For receiving the Family Pension, it is not enough to be a legal heir, but one must come within the definition of the term "Family" under Rule 49 of the Tamil Nadu Pension Rules.
10. The learned counsel appearing for the petitioner states that the matter may be remitted to the consideration of second respondent, so that an appropriate enquiry may be conducted by the second respondent. Such a course of action is impermissible, because the entire claim is based upon the alleged adoption made by Late Padma. The petitioner will have to prove such an adoption only before a competent Civil Court. Only on the basis of such proof, she can renew her request with the respondents for the Family Pension.
11. The Writ Petition stands dismissed with the observations made above. No costs.
cs To
1. Director of Local Fund Audit, Kuralagam, Chennai-108.
2. Commissioner, Panchayat Union, Cuddalore