Leonard Stone, Kt., C.J.
1. This is an appeal from the First Class Subordinate Judge at Dharwar sitting as Commissioner for Workmen's Compensation under the Act of 1923. Under Section 30 of that Act, an appeal only lies to this Court on a substantial question of law. That section is as follows:
(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
Then there are set out in sub-paragraphs various types of orders from which an appeal lies, followed by this proviso:
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), Unless the amount in dispute in the appeal is not less than three hundred rupees.
2. On March 21, 1939, a Workman of the name of Fatechand was killed, and it seems that he was living in adulterous intercourse with opponent No. 1, who was the wife of another man, and who had two young children whom admittedly Fatechand maintained as though they were his own children. The two children are opponents Nos. 2 and 3 in this Court, whilst the appellant is one of the alleged employers of Fatechand. The other alleged employer has not appealed, and whatever the result of this appeal may be, the order of the lower Court remains binding on him.
3. By Sub-section 2(1)(d) of the Workmen's Compensation Act, 1923, 'dependant' is defined, amongst other definitions, as follows:
(ii) if wholly or in part dependant on the earnings of the workman at the time of his death, a widower, a parent other than a widowed mother, a minor illegitimate son, an unmarried illegitimate daughter....
4. It is essential in making any examination of the evidence in this case to bear in mind the language of Section 112 of the Indian Evidence Act:
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Therefore, the presumption of legitimacy can only be rebutted by evidence of non-access. Proof per se that the woman was living with Fatechand is not evidence of non-access by her husband.
5. Sir George Lowndes in delivering the judgment of the Board in the case of Karapaya Servai v. Mayandi I.L.R (1933) Ran. 243:36 Bom. L.R. 394. said at page 251:
'It was suggested by Counsel for the appellants that 'access' in the section' (that is, Section 112) 'implied cohabitation, and a case from the Madras reports was cited in support of this contention. Nothing seems to turn upon the nature of the access in the present case, but their Lordships are satisfied that the word means no more than opportunity of intercourse.
6. Before turning to the evidence, a difference between the law of England and the law of India should be observed. Under English law, the declaration of a father or mother cannot be admitted to bastardise the issue born after the marriage; but this rule does not apply in India: see the case of Bai Kamla v. Babubhai (1925) 28 Bom. L.R. 607.
7. The only two witnesses of non-access are the mother herself and a witness named Radhabai, who was a neighbour. The mother's evidence is this: 'He' (that is her husband) 'has deserted me since 5 to 6 years ago.' The word 'deserted' in the vernacular may equally be translated as 'abandoned.' In cross-examination she said: 'Mahadev Bhoite' (that is, her husband) 'was living at Satara till his death. He was not living near my house but a furlong away from it.
8. The evidence of the other witness, Radhabai, is this: 'She' (that is, the mother) 'had quarreiled with her husband. Opponent No. l's husband was not going to her.' In cross-examination she said: 'Opponent No. l's husband was living half a mile away from her.'
9. No one, it seems, drew the learned Judge's attention to Section 112 of the Indian Evidence Act, since that section is nowhere referred to either in the judgment or in the record of this case.
10. Dealing with the question of the paternity of the children, the learned Judge says this:
'The most important question, therefore, is whether the opponents Nos. 2 and 3' (that is, the children) 'were born of Fatechand and if so, whether they are dependants and if so, whether their right to claim compensation is barred by the fact that they were born of adulterous intercourse.
Opponent No. 1, who is the mother of opponents Nos. 2 and 3, has stated on oath that though she was married many years ago, she was deserted by her husband who was one Mahadev Bhoite. She added that she began to live with the deceased Fatechand as his wife though no marriage was formally solemnized. She denied that she was in, the keeping; of any one else. She added that her two children, opponents Nos. 2 and 3, were born of him and that he was maintaining them all. She admitted in the course of her cross-examination that Mahadev Bhoite who was her married husband was living at Satara till his death which took place about 1941. It is true that she has not produced certified copies from the register of births. She also admitted that there was no divorce between her and Mahadev Bhoite. It is important to note that it was not suggested in the course of her cross-examination that Mahadev Bhoite was visiting her in her mother's home or that she was living with him during the period when her children Were born to her. There was nothing to prevent the employer from asking her these questions or to prove that Mahadev Bhoite was cohabiting with her or used to got to her.
11. Dealing with the evidence of the other witness Radhabai, the learned Judge says this:
The fourth witness, exhibit 74, has stated on oath that Radhabai's husband was never going to her and that opponents Nos. 2 and 3 were barn to Radhabai of Fatechand. I see no reason why her testimony should be disbelieved.
The learned Judge gives his conclusions in the following passage:
Giving the matter my most anxious consideration I am satisfied that the deceased Fatechand was the putative father of opponents Nos. 2 and 3 whose mother Radhabai was living with him as his own wife.
12. It does not appear to have been suggested in the Court below that the onus of proof of non-access lies on those who seek to bastardize the children by proving them to be Fatechand's children. But the fact that on this evidence we might well come to the conclusion that the initial onus of proof of non-access had not been discharged, is not, in my judgment, the point to which attention should be] focussed.
13. Mr. Belavadi on behalf of the children raises by way of a preliminary point the submission that no appeal lies since no substantial question of law is involved. The memorandum of appeal is wholly devoid of any assertion of there being a substantial question of law upon which an appeal to this Court could be grounded.
14. I invited Mr. Tulzapurkar to state what he now contended the substantial question of law to be. He answered that: 'the substantial point of law is that the finding arrived at by the learned Judge on issue No. 4, which is: 'Whether the opponents Nos. 2 and 3' (the children) 'were born of the deceased Fatechand,' is arrived at on no evidence in the case which would be sufficient to discharge the burden which lay upon them under Section 112 of the Evidence Act.' That answer proceeds from the difficulty in which the appellant is, namely, that no issue with regard to non-access by the father was framed and that no cross-examination took place upon such evidence of non-access as was led.
15. The object of the proviso to Section 30 of the Act is clearly that in these cases involving relief to the dependants of persons in a humble station of life there should be a quick and final decision and that the compensation arising under the Act from the death of the supporter of poor dependants should be quickly available to supply such dependants with the necessities of daily life. Only if a substantial question of law is involved, does an appeal lie. No better illustration could be given than this case of the mischief which flows from appeals in these cases, particularly in a case such, as this one in which the memorandum of appeal does not even suggest a substantial, question of law.
16. The workman was killed1 on March 21, 1939, and now on this January 18, 1945, nearly six years afterwards, the compensation moneys are still held up in the Court at Dharwar, and the children have not received a single pie for their maintenance. Judgment was delivered on November 5, 1942. Rs. 1,898 were ordered to be paid into Court within one month. On January 11, 1943, the Rs. 1,898 were deposited in the Dharwar Court. On the same day it appears that the appellant applied that the money should be retained in Court till the decision of the High Court in appeal was known. The pleader on behalf of the children left the matter in the hands of the Court, and the Court on February 11, 1943, ordered that the sum of Rs. 98 in respect of costs be paid out; but no order was made with regard to the Rs. 1,800 compensation moneys or any part thereof.
17. This procedure is very unsatisfactory, and appears to proceed without any attention having been drawn to Section 30A of the Act, which was introduced by amendment in 1933. That new section is as follows:
Where an employer makes an appeal under Clause (a) of Sub-section (1) of Section 30, the Commissioner may, and if so directed by the High Court shall, pending the decision of the appeal, withhold payment of any sum in deposit with him.
18. This discretion vested in the Commissioner ought to be properly exercised having regard to all the circumstances of the case. In particular a matter of primary importance is for the Commissioner to be satisfied that there is some substantial question of law involved on which alone the right to appeal is given. Justice delayed is justice denied; and in order that these cases may be expeditiously and properly dealt with in the future, and that the object of the Act may not be frustrated, we direct that in any case in which an order or direction is made by a Commissioner for a stay or for the retaining of the money in Court pending an appeal, an application shall be made by the appellant to this Court within one month, asking for expedition of the appeal and also for the giving of any directions which this Court may seem fit to give with regard to the maintenance of the dependants in the meantime.
19. In my judgment, no appeal lies on the first point taken by the appellant. There was some evidence of non-access, shadowy though it may be, but the quantum of evidence necessary to discharge the onus of proof is not a substantial question of law.
20. The rest of the judgment is not material to this report.
21. The material portion of His Lordship's judgment is as follows.
22. The second point urged by Mr. Tulzapurkar on behalf of the appellant is that even taking opponents Nos. 2 and 3 to be the children of Fatechand, they are not illegitimate children within the meaning of Hindu law which governs them, and that therefore, they would not be entitled to any share in the compensation. He relies upon two decisions of our Court. One of them is Vithabai v. Pandu (1925) 28 Bom. L.R. 595, according to which under Hindu law, the connection between a man and the married wife of another does not cease to be adulterous, simply because the husband of the woman connives at the adultery. A son bora of such union is not a dasiputra. The other decision in Tukaram v. Dinkar (1930) 33 Bom. L.R. 289 says that under Hindu law, where a woman is in the sole keeping of a shudra and the relation lasts till the death of the paramour, a son born of the connection is the illegitimate son of the deceased, provided the son is not the fruit of adulterous connection. It is no doubt true that the relationship between the parties is to be ascertained on the personal law governing them, and according to that law as interpreted in these two authorities an illegitimate child of a person would not be entitled to any share in the inheritance of the deceased if the child is born of adulterous or incestuous intercourse. The question, however, so far as we are concerned in this appeal, is not whether the child is the heir of the deceased but whether it is a dependant of the deceased. Under Section 8 of the Workmen's Compensation Act, the compensation is to be paid to each of the dependants of the deceased workman, and 'dependant' is defined in Section 2, as, among other persons, a minor illegitimate son and an unmarried illegitimate daughter. It may be noted that a mistress is not included in the class of dependants, but an illegitimate son and an illegitimate daughter are so included. In view of this definition it cannot be said that an illegitimate child even though born of adulterous intercourse is not a dependant of the deceased if it appears from the evidence that it was supported by him. Even under these two authorities, it cannot be said that the child bom of adulterous intercourse ceases to be an illegitimate child of the father even though it cannot inherit his property. It does not follow that the child should not get any share in the compensation if it is found to be a dependant even though an illegitimate child. In my opinion, therefore, these two authorities do not assist the appellant's case, and as it has been proved that they were dependant upon the deceased because their mother was in the permanent keeping of the deceased, they do fall within the definition of 'dependant', and therefore, they are entitled to the compensation awarded by the lower Court.
23. His Lordship after dealing briefly with other points proceeded:
24. The last point is with regard to the deposit made by the appellant in the lower Court and the amount to be paid to the two oponents Nos. 2 and 3. Section 30A of the Act no doubt gives a discretion to the Commissioner under this Act to withhold payment of any sum in deposit in case the employer makes an appeal against the decision of the Commissioner. The section says that 'the Commissioner may, and if so directed by the High Court shall, pending the decision of the appeal, withhold payment of any sum in deposit with him.' It follows that even before an appeal is filed to this Court against the decision of the Commissioner, the latter has the discretion to direct the withholding of payment. Still, however, that discretion is finally subject to the order of this Court if an appeal is filed, and it is, therefore, desirable in all such cases where an employer wishes to appeal against the decision of the Commissioner and makes a deposit for that purpose, that the Commissioner should direct the employer to obtain an order of stay as expeditiously as possible; otherwise payment would be made to the persons who were found entitled to the same. It is when the appeal comes for admission to this Court and after it is admitted that this Court may, in the exercise of its discretion, grant an order of stay on such terms as it considers fit. In all such cases the appeal, after it is admitted, should be brought on for hearing as expeditiously as possible so that the dependants, who have been awarded compensation, may not have to suffer delay in receiving the amount due to them if the appeal fails.
25. For these reasons I agree with the order proposed by the learned Chief Justice that this appeal should be dismissed with costs.