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Ganga Devi Vs. N.H. Ojha and Co. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1968)IILLJ790MP; 1968MPLJ549
AppellantGanga Devi
RespondentN.H. Ojha and Co.
Excerpt:
- - for instance, in matters of succession ex parte paterns as well as ex parte materns, in the family of adoption. it will be clearly seen from the above discussion that by reason of the statutory fiction, and adopted daughter is as much a daughter of her adoptive father or mother as a natural-been daughter, and that this is 'for all purposes......27 of the workmen's compensation act. the question referred to this court is this:whether an adopted daughter of a deceased workman can be considered to be a dependant under section 2(1)(d) of the act?2. one suvajdeen was employed in palechori colliery in chindwara district. on 22 october 1963 he was killed in an accident arising out of and in the course of his employment. the employer, having admitted his liability to pay compensation under the workmen's compensation act (hereinafter called the act) deposited rs. 7,000 as compensation to he paid to the dependant of the deceased.3. surajdeen was unmarried. his parents had predeceased him. he was not survived by any sister, but he left only two brother, banshi and brijlal is unmarried. basehi is married. ganga devi is his.....
Judgment:
ORDER

Shiv Dayal, J.

1. This is a reference under Section 27 of the Workmen's Compensation Act. The question referred to this Court is this:

Whether an adopted daughter of a deceased workman can be considered to be a dependant under Section 2(1)(d) of the Act?

2. One Suvajdeen was employed in Palechori colliery in Chindwara district. On 22 October 1963 he was killed in an accident arising out of and in the course of his employment. The employer, having admitted his liability to pay compensation under the Workmen's Compensation Act (hereinafter called the Act) deposited Rs. 7,000 as compensation to he paid to the dependant of the deceased.

3. Surajdeen was unmarried. His parents had predeceased him. He was not survived by any sister, but he left only two brother, Banshi and Brijlal is unmarried. Basehi is married. Ganga Devi is his daughter.

4. On 8 November 1967, which was the date fixed for distribution proceeding before the Commissioner for Workmen's Compensation (hereinafter called the Commissioner), Brijlal filed as application on behalf of Ganga Devi describing her as an adopted daughter of the deceased Surajdeen.

5. We are not concerned with the fact of adoption; whether adoption took place as a matter of fact or not is a question which the Commissioner will have to answer.

6. A question arose before the Commissioner whether the expression 'unmerried legitimate daughter' is the list of dependants in Section 2(1)(d) of the Act, includes as adopted daughter. The learned Commissioner referred to Section 3(57) of the General Classes Act (10 of 1897), which declares that 'son', in permits adoption, includes an adopted son. But he found that there is no similar declaration in the General Clauses Act about as adopted daughter. The learned Commissioner formed the opinion that the question, being of considerable importance, but not free from difficulty, should be referred to this Court.

7. Sri Naolekar, learned Counsel for the employer, argued that the definition of 'son' which is an inclusive one must be read as extending the meaning of the term 'son' which is not normally there, but it cannot further be extended beyond what is covered in such definition by legal fiction. In our opinion, it is not necessary to go into that question. Is our opinion, the question he to be examined from a different angle and with a different approach. Under the Hindu Law as it was in force for a large number of years before the enactment of the Hindu Adoptions and Maintenance Act, 1956, a girl was not eligible for adoption and the adoption of a daughter was not known, although in very ancient times a daughter also could be adopted. In his 'Dattak Mimanss,' Nanda Pandit favoured adoption of daughter and regarded it as conducive to spiritual benefit to the adoptor and his ancestor. His plea was that kanyadan (giving a son in adoption) stood on the same footing, being gifts for religious and secular purposes and the same considerations were attracted to a gift of a daughter in adoption (again kanyaddan) in order to secure spiritual benefit to the dones through such adopted daughter's son.

8. Under the Hindu Adoption and Maintenance Act, 1956, a girl is as capable of being taken in adoption as a boy (see Section 10 of that Act). The conditions which are to be fulfilled are also alike. To state broadly, as in the case of a boy, the must be a Hindu the must not have already been adopted; she must not have been married, and she must not have completed the age of 15 years.

9. After stating the rules relating to the capacity of the parties to take and give is adoptions, the requirements of a valid adoption and the qualification of the person to be taken in adoption, that Act of 1956 father lays down the legal effects of adoption. The adopted child must be deemed to be the child of his or her adopted father or mother for all purposes with effect from the date of the adoption. By fiction of law, a status is deemed to be conferred, which would not otherwise have been so. Section 12 of that Act reads thus:

12. 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 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 obligation, 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.

It is quite plain that the section bestows upon the adopted whether a son or a daughter the same rights and privileges in the family of the adoptor as a legitimate natural-burn son or daughter has and full effect has to be given to the newly-acquired status 'for all purposes' effect from the date of adoption. By force of the legal fiction, it has to be deemed as if the adeptee was born to his adoptive father or mother on the date of the adoption. All ties of the adoptee in the family of his or her natural birth must be deemed to have been severed and those ties must be deemed to have been created by the adoption in the adoptive family. Full effect has to be given to this status, which accrues on adopton, with effect from the date of adoption; for instance, in matters of succession ex parte paterns as well as ex parte materns, in the family of adoption.

10. Effect must be given to such statutory fiction and it must also be carried to its logical conclusions. It will be clearly seen from the above discussion that by reason of the statutory fiction, and adopted daughter is as much a daughter of her adoptive father or mother as a natural-been daughter, and that this is 'for all purposes.' The only limitation is that this statutory fiction comes into play from the date of the adoption but not retrospectively, so that the adopted child cannot divest any person of any estate which vested in him or her before the adoption.

11. Under the Workmen's Compensation Act, 1923, compensation is to be paid to a 'workman' which term, in the (sic) of his death, means, his dependants or any of them [S. 2(1)(s)]. The word 'dependent' is defined in Section 2(1)(d) in there words:

'dependat' means any of the following relatives of a decreased workman; namely;

(i) a widow, a minor legitimate son; and unmarried legitimate daughter, or a widowed mother; and (ii) * * * | (sot relevant for(iii) * * * | the purposes of| this reference).

Apart from any thing else, by force of Section 12 of the Hindu Adoptions and Maintenance Act, 1956, and unmarried adopted daughter is included in the expression 'unmarried lagitimate daughter' in Section 2(1)(d) of the Workmen's Compensation Act.

12. We, therefore, answer the question, referred to us, as follows:

An adopted daughter who is validly adopted according to the provision of the Hindu Adoptions and Maintenance Act, 1956, by a workman, is se long as she remains unmarried, deemed to be 'unmarried legitimate daughter' under Section 2(1)(d) of the Workmen's Compensation Act.


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