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PETITIONER: SHYAM SUNDER PRASAD SINGH & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT22/07/1980

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) BHAGWATI, P.N. SEN, A.P. (J)

CITATION:  1981 AIR  178            1981 SCR  (1)   1

ACT:      Hindu Law-Interpretation  of ancient  texts of  Smritis and commentaries  on Hindu  Law, care  to be  taken-"Putrika Putra"  (appointed   daughter’s  son  who  by  agreement  or adoption becomes  the  son  of  the  father),  practice  of- Applicability in  Benaras and  Mithila schools of law during the time  of Raja  Dhrub Singh-Whether the said practice was permissible by  the  Mitakshara  law-Rule  of  desuetude  or obsolescence, explained.

HEADNOTE:      Raja Ugra  Sen, who  was governed by the Benaras School of Mitakshara  law established "Bettiah Raj" in or about the middle of  17th century.  It was  known as Riyasat of Sirkar Champaran consisting  of four  Perghunnas known  as  Majhwa, Simrown, Babra  and Maihsi  and an  impartible estate. After the death  of his  great grand  son, Raja  Dhrub Singh dying issueless in  1762, Raja  Jugal Kishore  Singh, son  of Raja Dhrub Singh’s  daughter Benga Babui, entered into possession of the  estate of  "Bettiah Raj".  The  East  India  Company officers seized  the estate from him and later allotted only the zamindari  of Majhwa  and Simrown, while those of Maihsi and Babra  were allotted  to  Srikishen  Singh  and  Abdhoot Singh. The  last male holder of Raja Jugal Kishore Singh was Maharaja Bahadur  Narendra Kishore  Singh who died issueless on March  26, 1893,  leaving behind  him two widows Maharani Sheo Ratna  Kuer and  Maharani Janki Kuer, who succeeded him one after  the other.  During the  lifetime of Maharani Sheo Ratna Kuer,  two suits  were filed  claiming the  estate but they were lost in all courts including the Privy Council. In 1897, the  management of  the estate  was taken  over by the court of  Wards Bihar and the Government of Uttar Pradesh in respect of  the areas  falling in these two States. Maharani Janki Kuer  died on  November 27,  1954. The State of Bihar, therefore, made  an application before the Board of Revenue, Bihar, praying  that the  estate of  Maharaja Narendra Singh which was  held by  late Maharani  Janki Kuer  as a  limited owner but  managed by  the Court  of Wards be handed over to the State  of Bihar  by virtue  of the  rule of escheat. The Board of  Revenue  published  a  Notification  calling  upon interested parties  to prefer  the claim,  if  any,  to  the properties comprised in the estate. Since there were several

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claimants taking  inconsistent pleas,  the Board  of Revenue declined to  release the  estate in  favour of  any  of  the claimants and  as per  its  order  dated  January  18,  1955 directed that  the properties would be retained by the Court of  Wards  until  the  dispute  as  to  its  succession  was determined by  competent Civil  Court. The title suit having been lost.  The  appellants  have  come  up  in  appeals  by certificate. The  State of  Bihar which claimed title by the rule of escheat also preferred appeals.      Dismissing Civil  Appeals Nos.  114-119  of  1976,  the Court ^      HELD: (1)  While  interpreting  the  ancient  texts  of Smritis and commentaries on Hindu Dharmasastra, it should be borne  in   mind  the   dynamic  role   played  by   learned commentators who were like Roman Juris Consults. The 2 commentators tried  to interpret  the texts  so as  to bring them in  conformity with  the prevailing  conditions in  the contemporary  society.   That  such   was  the   role  of  a commentator is  clear even  from the  Mitakshara  itself  at least in  two places-first,  on the  point of allotment of a larger share  at a  partition to the eldest son and secondly on the  question of  right of  inheritance of  all  agnates. [56F-H]      (2) Etymologically, the word ’putrika’ means a daughter (especially a  daughter appointed  to raise male issue to be adopted by  a father  who has  no sons), and ’putrika-putra’ means a  daughter’s son who by agreement or adoption becomes the son of her father [20C-D]      A  careful   reading   of   the   ancient   texts-Manu, Yajnavalkya,  (Mitakshara)   (Vijnanesvara)   and   Apararka (Aparaditya) Baudhayana  Dharmasutra,  Vishnu  Dharmasastra, Vasishtha Dharmasutra, Parasara Madhava, Smriti Chandrika of Devannabhatta,  Dattaka-Chandrika  and  Dattaka  Mimansa  by Nanda Pandita-leads to the inference that the institution of "Putrika Putra"  had become  obsolete and  not recognised by Hindu society  for several  centuries prior to the time when Smriti-Chandrika or Dattaka Chandrika were written and these two commentaries belong to a period far behind the life time of Raja Dhrub Singh [32B-C]      Further, absence  of cases  before courts within living memory in  which a  claim had been preferred on the basis of application in  "Putrika-Putra" form  showed that  the  said practice had become obsolete. [34A]      Thakoor Jeebnath  Singh v. The Court of Wards, (1875) 2 I.A. 163 (PC), quoted with approval.      Sri Raja  Venkata Narasimha  Appa Row  Bahadur  v.  Sri Rajesh Sraneni  Venkata  Purushotama  Jaganadha  Gopala  Row Bahadur & Ors., I.L.R. (1908) 31 Mad 310: Babui Rita Kuer v. Puran Mal, A.I.R. 1916 Patna 8 approved.      Tribhawan Nath  Singh v. Deputy Commissioner, Fyzabad & Ors,. A.I.R. 1918 Oudh 225, overruled.      (3) All  digests, lectures  and treatises  support  the view that the practice of appointing a daughter as a putrika and of  treating  her  son  as  "putrika-putra"  had  become obsolete several  centuries ago.  And, the  reason  for  the abandonment of  the practice  of appointing  a  daughter  to raise a son by the Hindu society is clear from the following situation. [46C, 49F]      In ancient  times, the daughter and daughter’s son were given preference  over even  the widow  of a  person in  the matter of  succession. Ancient commentators like Madhathithi and Haradatta  had declared  that the  widow was no heir and notwithstanding some  texts in her favour, her right was not

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fully recognised  till Yajnavalkya  stated  that  the  widow would  succeed  to  the  estate  of  a  sonless  person.  In Yajnavalkya Smriti,  the order  of succession  to a male was indicated in  the following  order (1)  son, grandson, great grandson,  (2)   putrika-putra,  (3)   other  subsidiary  or secondary sons,  (4) widow  and (5)  daughter.  It  was  not expressly stated  that daughter’s son would succeed, but the parents were shown as the successors. Vijnanesvara, however, interpreted  the   word  "cha",   which  meant   "also"   in "Duhitaraschaiva" in the text of Yajnavalkya laying down the compact series  of heirs as referring to daughter’s son. But for this  interpretation a daughter’s son would have come in as an  heir after  all agnates (gotrajas), as the daughter’s son is  only  a  cognate  (Bandhu).  As  a  result  of  this interpretation, the daughter’s son was promoted in rank next only to  his maternal  grand-mother  and  his  mother  whose interest in  the estate was only a limited one. [48H, 49A-C, E-F] 3      When  a   person  had   two  or   more  daughters,  the appointment of  one of them  would give her primacy over the wife and  the other daughters (not so appointed) and her son (appointed daughter’s son) would succeed to the exclusion of the wife  and other daughters and their sons and also to the exclusion of  his own  uterine brothers (i.e. the other sons of the appointed daughter). Whereas in the case of plurality of sons  all sons  would succeed  equally, in  the  case  of appointment of  a daughter,  other daughters  and their sons alongwith the  wife would get excluded. To prevent this kind of inequality  which would  arise among  the  daughters  and daughter’s  sons,   the  practice  of  appointing  a  single daughter as a putrika to raise an issue came to be abandoned in course  of time  when people  were satisfied  that  their religious feelings  were satisfied  by the statement of Manu that all  sons of daughters whether appointed or not had the right to  offer oblations  and their  filial yearnings  were satisfied by  the promotion  of the  daughter’s sons  in the order of  succession next  only to  the son  as the wife and daughters had been interposed only as limited holders. [49F- H, 50A-C]      Ghanta  Chinna   Ramasubbayya  &   Anr.   v.   Moparthi Chenchuramayya, 74 I.A. 162, followed.      (4) It  is incorrect  to suggest  that the theory of "a practice once  recognised  by  law  becoming  obsolete"  was unknown and  that it would continue to be in existence until it was  taken away by a competent legislature. The court can declare it to be so. [53G]      Shiromani &  Ors. v.  Hem Kumar & Ors., [1968] 3 S.C.R. 639, applied.      (5)  The   contention  that   the  rule   against   the appointment of  a daughter  by a Hindu to beget an issue for himself in  Kali age enunciated by Saunaka and others should be treated  as only  directory and if any person appointed a daughter for  that purpose  in contravention  of  that  rule still her  son would become "putrika-putra" of the person so appointing, with  all the  privileges of  a putrika putra is highly  tenuous.  Where  there  is  predominant  opinion  of commentators supporting  its non-existence  in the  last few centuries extending  to a period, in the instant case, prior to the  life of  Raja Dhrub Singh and there are good reasons for  the   Hindu  Society   abandoning  it,   it  would   be inappropriate to resurrect the practice. [58E-F, 61A-C]      Sri Balusu  Gurulingaswami v. Sri Balusu Ramalakshmamma JUDGMENT:      (6) The  evidence on  record makes  it clear  that  the

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family of  Raja Dhrub  Singh was  governed  by  the  Benaras School of Hindu  Law and not by the Mithila School. Further, the material  on record  is not  sufficient to  lead to  the conclusion that  the institution  of putrika  putra  was  in vogue during the relevant time even amongst persons governed by the  Mithila School.  Throughout India including the area governed by the Mithila School, the practice of appointing a daughter to  raise  an  issue  (putrika  putra)  had  become obsolete by  the time  Raja Dhrub  Singh was alleged to have taken Raja  Jugal Kishore  Singh as  putrika putra.  In fact Raja Dhrub  Singh as  found  by  the  High  Court,  had  not appointed his daughter as a putrika to beget a putrika putra for him. It follows that the appellants who claim the estate on the above basis cannot succeed. [62F-G, 63F]      The applicability  of the  above rule to Nambuderies of Kerala is however not decided. [62G-H] 4

&      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 114-119 of 1976.      From the  Judgment and  Decree dated  15-12-1972 of the Patna High  Court in F.A. Nos. 130, 85, 86, 87, 131, and 134 of 1966.      D. V.  Patel, S.  S. Johar  and S.  N. Mishra  for  the Appellants in CA Nos. 114-119 of 1976.      V. M.  Tarkunde, U.  R. Lalit, K. K. Jain, D. Goburdhan and P. P. Singh for Respondents 5-22 in CA Nos. 114-115/76.      L. M.  Singhvi (Dr.), U. P. Singh and S. S. Jha for the Respondents in CA 114-119/76.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The above six appeals by certificate and Civil Appeals Nos. 494-496 of 1975 arise out of a common judgment dated  December 15,  1972  of  the  High  Court  of Judicature at  Patna passed  in First Appeals Nos. 85 to 87, 130, 131  and 134  of 1966.  After the above six appeals and Civil Appeals  Nos. 494-496  of 1975 were heard together for sometime, we  found that  the above  six appeals  i.e. Civil Appeals Nos.  114-119 of  1976 could  be disposed  of  by  a separate judgment. We, therefore, proceeded with the consent of the  learned counsel  for the parties to hear fully Civil Appeals Nos.  114-119 of  1976. By  this common judgment, we propose to  dispose of  the above  six appeals.  The further hearing of Civil Appeals Nos. 494-496 of 1975 is deferred.      The question  which arises for our consideration in the above Civil  Appeals Nos.  114-119 of  1976 is  whether  the appellants and  others either  claiming under the appellants or alongwith  them are entitled to an estate popularly known as ’Bettiah Raj’ which was under the management of the Court of Wards,  Bihar. The  last male  holder of the said estate, Maharaja Harendra  Kishore Singh  Bahadur died  issueless on March 26,  1893 leaving behind him two widows, Maharani Sheo Ratna Kuer and Maharani Janki Kuer. Maharani Sheo Ratna Kuer who succeeded  to the  estate of  Maharaja Harendra  Kishore Singh on  his death  as his  senior widow  died on March 24, 1896 and on her death Maharani Janki Kuer became entitled to the possession  of the  estate.  Since  it  was  found  that Maharani Janki  Kuer was  not able to administer the estate, its management  was taken  over by the Court of Wards, Bihar in the  year 1897.  Maharani Janki  Kuer who  was a  limited holder of  the estate  died on  November 27,  1954.  On  her death, disputes  arose  amongst  several  persons  who  were parties to the suits

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5 out of  which the above appeals arise regarding the title to the ’Bettiah  Raj’ estate.  The  State  of  Bihar,  however, claimed that  none of the claimants was the heir of the last male holder  and that since there was no heir at law as such at the  time when  the limited estate of Maharani Janki Kuer came to an end on her death, the entire estate alongwith the net income  which the  Court of  Wards had  realized from it became the  property of  the State of Bihar by virtue of the rule  of   escheat.  We   shall  refer   to  the  respective submissions of the parties at a later stage.      It is  not disputed  that Raja Ugra Sen, the founder of the ’Bettiah  Raj’ was  governed by  the Benares  School  of Mitakshara law  as his  family had  migrated from  the South Western part  of the  present State  of Uttar Pradesh to the State of  Bihar although  in the  course of  the  pleadings, there is  a  suggestion  that  the  family  was  also  being governed by  the Mithila  School of  Mitakshara which was in force in the State of Bihar.      The question  for decision  in the  instant case may no doubt ultimately  appear to  be a simple one but in order to determine the  said question,  it is necessary to relate the facts which  spread over nearly three centuries and refer to a number of Smritis, commentaries and decisions.      The major  part of  the  estate  of  ’Bettiah  Raj’  is situated in  Champaran District  of the State of Bihar. Some of its properties are situated in the State of Uttar Pradesh also.  The   principality  known   as  ’Bettiah   Raj’   was established by  Raja Ugrasen  in or  about the middle of the 17th  century.  It  was  then  known  as  Reasut  of  Sirkar Champaran consisting  of four  pergunnahs known  as  Majhwa, Simrown, Babra and Maihsi. It was an impartible estate. Raja Ugrasen was succeeded by his son, Raja Guz Singh in the year 1659. Raja  Dalip Singh,  son of  Raja Guz Singh came to the gaddi in the year 1694 and he was succeeded by his son, Raja Dhrub Singh  in the year 1715. Raja Dhrub Singh died in 1762 without a  male issue  but leaving  a daughter by name Benga Babui, who  had married  one  Raghunath  Singh,  a  Bhumihar Brahmin of  Gautam gotra.  It is  said that  he had  another daughter also,  but it  is not necessary to investigate into that fact  in these  cases. On the death of Raja Dhrub Singh who was  a  Jethoria  Brahmin  of  the  Kashyap  gotra,  his daughter’s son (Benga Babui’s son), Raja Jugal Kishore Singh entered into  possession of  the estate of ’Bettiah Raj’ and was in  possession thereof  at the  date when the East India Company assumed  the Government  of  the  province.  On  the assumption of  the Government  of Bengal  by the  East India Company, Raja Jugal Kishore Singh offered some resistance to their 6 authority  and  the  Company’s  troops  were  despatched  to enforce his  submission. Raja  Jugal Kishore Singh fled into the neighbouring  State of  Bundelkhand and his estates were seized and  placed under  the management  of  the  Company’s officers. During  the absence  of Raja  Jugal Kishore Singh, Sri Kishen  Singh and  Abdhoot Singh  who were  respectively sons of Prithi Singh and Satrajit Singh, younger brothers of Raja Dalip  Singh, found favour with the East India Company. After some negotiations, the Government decided to allot the zamindari of Majhwa and Simrown pergunnahs which formed part of ’Bettiah  Raj’ estate  to Raja Jugal Kishore Singh and to leave Babra  and  Maihsi  in  possession  of  Srikishen  and Abdhoot Singh.  On his  return,  Raja  Jugal  Kishore  Singh accepted the  decision of  the East  India Company which was formally announced on July 24, 1771 in the following terms:-

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         "The Committee  of Revenue  having approved of the      reinstatement  of  Raja  Jugal  Kishore,  we  have  now      granted to  him the  zamindari of  Majhwa  and  Simrown      pergunnahs, and have settled his revenue as follows..."      Accordingly,  Raja   Jugal  Kishore  Singh  executed  a kabulyat  in  accordance  with  the  terms  imposed  by  the Government under  the  grant  and  got  into  possession  of pergunnahs Majhwa  and Simrown. He was again dispossessed in the following  year as  he  failed  to  pay  the  Government revenue. Srikishen and Abdhoot refused to execute a kabulyat for the  two other  pergunnahs  alone  and  they  were  also dispossessed.  The   entire  Sirkar  thus  passed  into  the possession of  the Government  and was  held by  farmers  of revenue on  temporary settlements  until the year 1791. Raja Jugal Kishore  Singh received an allowance for main- tenance from the  Government and  died in  or about  the  year  1783 leaving a  son, Bir Kishore Singh. Thereafter on October 10, 1789, Mr.  Montgomerie, the  then Collector, initiated fresh proceedings regarding  the settlement  of Sirkar  Champarun, the estate  in question,  and on  September  22,  1790,  the Governor-General-in-Council (Lord  Cornwallis) addressed the following letter to the Board of Revenue:-           "It appearing  from our  proceedings that the late      Raja Jugal  Kishore was  driven out  of the country for      acts of rebellion, and upon his being allowed to return      into the  company’s dominions,  that the late President      and Council  thought proper  to divide the zamindari of      Champarun, allotting  to Jugal Kishore the districts of      Majhwa and  Simrown, and to Srikishen Singh and Abdhoot      Singh those  of Maihsi  and Babra,  we direct  that the      heirs of  the late  Raja Jugal  Kishore  and  Srikishen      Singh and Abdhoot Singh be respectively restored to the      possession and management of the 7      above districts  (with  the  exception  of  such  parts      thereof as  may belong to other zamindars or taluqdars,      being the proprietors of the soil, who are to pay their      revenues immediately to the Collector of the district),      and that  the decennial  settlement be  concluded  with      them agreeably to the General Regulations."      All  the  parties  were  dissatisfied  with  the  above decision. Bir  Kishore Singh  who claimed  to be entitled to the entire  Sirkar Champarun,  however, in  obedience to the orders of  the Governor-General  took possession  of the two pergunnahs Majhwa  and Simrown  allotted to  him and gave in his agreements  for the  settlement of  them and at the same time prayed  that he  might be  put into  possession of  the other  two  pergunnahs  also.  Srikishen  and  Abdhoot  also claimed the  entire estate  on the  ground that  Raja  Jugal Kishore Singh  was not  a member  of the  family and  had no title to  the estate  as "by  the Hindu  Shastra the  female branch is  not entitled  to a share of the estate, much less the whole."  They accordingly  at first  refused to  give in their kabulyats  for the pergunnahs Maihsi and Babra; but on Mr.  Montgomerie’s  advice  they  ultimately  did  so  under protest  and   were  placed   in  possession  of  those  two pergunnahs. Separate  dowl settlements of Government revenue on the  mahals in pergunnahs Majhwa and Simrown and on those in pergunnahs  Maihsi and  Babra were made with and accepted by  Bir   Kishore  Singh   and  by   Srikishen  and   Abdhut respectively. The Sirkar Champarun was thus divided de facto into distinct  zamindaris to  be held  by  the  grantees  at revenues allotted  to each  of them separately. Then started the first  phase of  judicial  proceedings  which  even  now continue to be devil the estate which Raja Bir Kishore Singh

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acquired pursuant  to  the  orders  of  Governor-General-in- Council. On  the 6th  day of  May, 1808, Ganga Prasad Singh, the eldest  son of  Raja Srikishen  Singh, who  had died  by then, instituted  a suit in the Zila Court of Saran claiming upon a plea of title by inheritance to recover from Raja Bir Kishore Singh  possession of  pergunnahs Majhwa  and Simrown and certain  salt mahals  all of which were formerly part of Sirkar Champarun  on the  following allegations; that in the year 1762  upon due  consideration of right to succession as established in  the family,  Raja Dhrub  Singh had made over while he  was  still  alive  the  rajgy  of  the  Sirkar  of Champarun to his father, Raja Srikishen Singh, son of Prithi Singh and  at the same time executed in his favour a deed of conveyance of  the rajgy  and  the  milkeut  of  the  estate comprising the  whole of  the Sirkar  aforesaid and gave him entry into  the zamindari.  He further  alleged that when in the year  1763 the  British Government  was established, the lands comprised  in the  said Sirkar  were attached but that Raja Srikishen  Singh continued  to receive the malikana and other rights annexed to 8 the zamindari  upto 1770 and that in the following year, the settlement of  the whole  Sirkar was  made with him and from the year  1772 to  1790 although  the business of the Sirkar was conducted  by the Amins and Mootahdars appointed for the purpose  and  Commissioner  appointed  temporarily  for  the collection of  the revenue  and at  other times, his father, Raja Srikishen  received the  malikana. He then proceeded to state the  manner  in  which,  upon  the  formation  of  the decennial settlement in 1790, Raja Srikishen was deprived of the possession of the pergunnahs which he claimed to recover and alleged  certain fraudulent practices whereby possession had been  obtained by  Raja Bir  Kishore Singh. The suit was transferred from the Zillah Court of Saran to the Provincial Court of  Patna. The  suit was contested by Raja Bir Kishore Singh. In  the course  of the written statement, his counsel inter alia pleaded:-           "The whole  of the above statement of plaintiff is      both false and fraudulent for the real fact is that the      Majhwa, Simrown,  Maihsi and  Babra pergunnahs  forming      the Champarun Sirkar were the rajgy, the zamindary, and      the milkeut  of Raja  Dhrub Singh,  an ancestor  of  my      client and  the said  Raja held  the sole possession of      them without  foreign interference or participation. It      is necessary  to state  that he had no son born to him;      but Raja  Jugal Kishore  Singh, the father of my client      was his  grandson and the issue of a daughter he had by      his senior  Rani, Raja  Dhrub  Singh  aforesaid  having      adopted Raja  Jugal Kishore  Singh, the  father  of  my      client,  at  the  time  of  his  birth,  conducted  the      ceremonies of  his adoption  and marriage  in the usual      manner, and  having after  wards given him the tilak he      established him  upon the  rajgy of  the whole  of  the      Champarun Sirkar".      The Provincial Court dismissed the suit by its judgment dated December  29, 1812  solely on the ground of limitation whereupon Raja  Dindayal Singh  (the legal representative of the original plaintiff, Raja Ganga Prasad Singh, who died in the meanwhile)  filed an  appeal  before  the  Sadar  Diwani Adalat during  the pendency  of which Raja Bir Kishore Singh died (in  1816) and  was succeeded  by his  elder son,  Raja Anand Kishore  Singh. The  appeal was  dismissed on  July 9, 1817. In  its elaborate  judgment, the  Sadar Diwani  Adalat rejected the  case of the plaintiff in that suit relating to the conveyance of the rajgy by Raja Dhrub Singh in favour of

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Raja Srikishen  Singh holding  that the document relied upon was a forgery. The above decision of the Sadar Diwani Adalat was affirmed  by the Judicial Committee of the Privy Council in Rajah Dundial Singh & Ors. v. Rajah Anand 9 Kishore Singh(1)  by its  judgment dated  December 5  and 7, 1837. The  Judicial Committee  affirmed the  judgment of the courts below on the sole ground of limitation.      Raja Anand  Kishore Singh continued on the Gaddi and in 1837, the hereditary title of Maharaja Bahadur was conferred upon him.  Upon his death in 1838, without any issue, he was succeeded by  his younger  brother, Maharaja  Bahadur  Nawal Kishore Singh.  Maharaja Bahadur Nawal Kishore Singh had two sons, Rajendra  Kishore Singh and Mahendra Kishore Singh and upon his  death in  the year 1855, Maharaja Bahadur Rajendra Kishore Singh  succeeded to  the  estate.  Maharaja  Bahadur Rajendra Kishore Singh died in 1883 and his brother Mahendra Kishore Singh  having pre-deceased  him, he was succeeded by Maharaja  Bahadur  Harendra  Kishore  Singh  who  as  stated earlier was  the last  male holder  of the  estate and  died issueless on  March 26,  1893 leaving behind him two widows, Maharani Sheo  Ratna Kuer  and Maharani Janki Kuer. So great was the  esteem in which Maharaja Harendra Kishore Singh was held by  the Government that the Lt. Governor of Bengal came to Bettiah  personally to offer his condolence. The occasion was used  by Raja  Deoki Nandan  Singh  (one  of  the  great grandsons of  Raja Srikishen Singh) to put forward his claim to the  Bettiah Raj.  On April  11,  1893,  he  presented  a memorial to the Lt. Governor claiming that the late Maharaja was his "Gotra Sapinda". In the memorial, he stated thus:           "Raja  Dhrub   Singh  had   no  issue.  Therefore,      according  to  the  provisions  of  the  Hindu  Law  he      converted his  daughter’s son  Jugal Kishore  Singh who      belonged to  the Gautam Gotra to Kashyap Gotra and then      adopting him  as  his  son  appointed  him  to  be  his      successor. The  Maharaja Bahadur  was in the 5th lineal      descent from  Jugal Kishore Singh, the petitioner is in      the 4th lineal descent from Raja Srikishen Singh.. That      under the  provisions of  Kulachar  law  Your  Honour’s      humble petitioner  is the  legal heir  and successor of      the deceased  Maharaja and..  fully capable of managing      the Raj."      A reading  of the  above extract  of the memorial shows that the  case put  forward by  Raja Deoki  Nandan Singh was directly contrary to the case put forward by his predecessor in the  suit of  1808. Whereas  in  the  earlier  suit,  his predecessor had  pleaded that  Raja Jugal  Kishore Singh was the  daughter’s  son  of  Raja  Dhrub  Singh  and  was  not, therefore a  member of  the family of Raja Dhrub Singh, Raja Bir Kishore  Singh had pleaded that Raja Jugal Kishore Singh having been adopted by 10 Raja Dhrub  Singh was  a member  of the family of Raja Dhrub Singh. In  the above  said memorial,  it was  pleaded by the successor of  the plaintiff  in the  suit of  1808 that Raja Jugal Kishore  Singh who  belonged to  Gautam Gotra had been adopted by  Raja Dhrub  Singh who  belonged to Kashyap Gotra and had been appointed by him as his successor.      On the  death of  Maharaja Harendra  Kishore Singh, the estate  came  into  the  possession  of  his  senior  widow, Maharani Sheo  Ratna Kuer.  Within about  two years from the date of the death of Maharaja Harendra Kishore Singh, a suit was instituted  in Title Suit No. 139 of 1895 on the file of the Subordinate  Judge of Tirhoot by Ram Nandan Singh, fifth in descent  from  Raja  Ganga  Prasad  Singh  (who  was  the

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plaintiff in  the suit  of 1808) against Maharani Sheo Ratna Kuer claiming the estate of Raja Harendra Kishore Singh. The main  pleas  raised  by  him  in  the  suit  were  that  the succession to  the Bettiah Raj was governed by the custom of male linear  primogeniture; that  females were excluded from succeeding to  the Raj;  that Raja  Jugal Kishore  Singh had been adopted  by Raja  Dhrub Singh  as his  son and  that he being an agnate was entitled to the possession of the estate of Maharaja  Harendra Kishore Singh. Another suit viz. Title Suit No.  108 of  1896 was filed by Girja Nandan Singh whose father Deo  Nandan Singh  had submitted  the memorial to the Lt. Governor  of Bengal on April 11, 1893. This Girja Nandan Singh was fourth in descent from Doostdaman Singh, a younger brother of  Raja Ganga Prasad Singh and while supporting the stand of  the plaintiff,  Ram Nandan Singh in the Title Suit No. 139  of 1895  on  the  point  of  Raja  Jugal  Kishore’s adoption by  Raja Dhrub  Singh and exclusion of females from succession to  the Raj,  he pleaded  that he was entitled to succeed to  the Raj  by the  rule of propinquity, as all the branches of  the family were joint in status, there being no custom of  male linear  primogeniture as  put forward in the suit of  Ram Nandan  Singh i.e. in the Title Suit No. 139 of 1895.      Both the  suits were  contested by  Maharani Sheo Ratna Kuer. During  the pendency  of the  two suits,  she died and Maharani Janki  Kuer, the  second widow of Maharaja Harendra Kishore Singh was brought on record as the defendant in both the suits.      Title Suit  No. 139  of 1895  was decreed  by the trial Court but  on appeal by Maharani Janki Kuer, the said decree was set  aside and  the suit was dismissed by the High Court of Judicature  at Fort  William in  Bengal by  its  judgment dated April  14, 1889. Against the decree of the High Court, Ram Nandan  Singh filed  an appeal before the Privy Council. The Privy  Council affirmed  the decree of the High Court in Ram Nandan Singh v. Janki Kuer(1) The Privy 11 Council held  that the  two pergunnahs  Majhwa  and  Simrown which were granted pursuant to the orders of Lord Cornwallis to Raja  Bir Kishore  Singh became  the separate property of Raja Bir  Kishore Singh  free from  any coparcenery right of succession of the branches of the family then represented by Srikishen and  Abdhoot. They  held that  from the  letter of Lord Cornwalis  dated September 22, 1790 extracted above, it was clear  that Raja Jugal Kishore Singh had been driven out from the  country for  the acts  of rebellion  and that  the Government was  at liberty  to divide  the Sirkar  into  two portions and  to grant one portion to Raja Bir Kishore Singh and another  portion to  Srikishen  and  Abdhoot  in  direct exercise of  sovereign authority.  It further  held that the grants so  made by  the Government  proceeded from grace and favour alone.  It was further held that the estate which was granted in  favour of  Raja Bir  Kishore  Singh  became  his separate and  self-acquired property  though  with  all  the incidents of  the family  tenure of  the old  estate  as  an impartible Raj  Consequently, the plaintiff was not entitled to claim  it on  the basis  of the  custom  of  male  linear primogeniture. The Privy Council also held that there was no inconsistency between  a custom  of  impartibility  and  the rights of  females to  inherit and  therefore, Maharani Sheo Ratna Kuer  and after  her Maharani Janki Kuer could succeed to the  estate of  their husband,  Maharaja Harendra Kishore Singh and  remain in  possession thereof. The Privy Council, however, declined  to decide the question whether Raja Jugal Kishore Singh  had been adopted by his maternal grandfather,

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Raja Dhrub  Singh or  became his  son and  a member  of  his family by some customary mode of affiliation i.e. as Putrika Putra and left the question open in the following terms:-           "There remains  only the  issue whether Raja Jugal      Kishore was  adopted by  his maternal  grandfather Raja      Dhrub Singh,  or became  his son  and a  member of  his      family by  some  customary  mode  of  affiliation.  The      determination of this issue against the appellant would      be fatal to his case, because in that case he would not      be able  to prove that he was of the same family as the      late Sir Harendra. The learned judges have not found it      necessary for  the decision  of  the  present  case  to      decide this  issue, and their Lordships agree with them      in thinking  that it is the better course not to do so,      because the same issue may hereafter arise for decision      between different parties."      The other  suit i.e.  Title Suit  No. 108 of 1896 which was filed  by Girja  Nandan Singh was dismissed by the trial court and  the appeal  filed by him before the High Court of Judicature at  Fort William  in Bengal  (Calcutta) was  also dismissed on  April 14, 1889, the same day on which the High Court had disposed of the appeal in the other suit. 12      A few  years later,  one Bishun  Prakash Narain  Singh, fifth in  descent from  Abdhoot Singh  also filed  a suit in Title Suit  No. 34  of 1905  in the court of the Subordinate Judge of  Chapra, claiming  title to  the estate of Maharaja Harendra Kishore Singh on the footing that his branch of the family was  joint in  status with  Maharaja Harendra Kishore Singh and  so he  was entitled  to succeed  to him under the rules of  survivorship. That  suit failed  in all the courts including the  Privy Council  whose judgment  is reported in Rajkumar Babu Bishun Prakash Maraain Singh v. Maharani Janki Kuer &  Ors.(1) The genealogy of the family relied on in the above suit  which is  found at  page 858 in 24 Cal. W. N. is given  below   to  facilitate   the  understanding   of  the relationship amongst the parties:-                    Raa Ugrasen Singh (died 1659)                               |                    Raja Gaj Singh (died 1694)                               |       --------------------------------------------------       |                       |                        | Raja Daleep Singh        Pirthi Singh         Satrajit Singh    (died 1715)             (dead)                   (dead)       |                       |                        |       |                       |               Bishun Prakash Raja Dhrub Singh         Srikishen Singh       Narayan Singh (died 1762)                 (dead)               (Plaintiff)       |                       |            (Fifth in descent       |                       |             from Satrajit       |                       |             Singh) Daughter’s son        --------------------------- (Putrika Putra)       |                         | Raja Jugal Kishore  Ram Nandan             Girja Nandan Singh (died 1785)   Singh                  Singh       |             (Defendant             (Defendant       |              No. 2)                 No. 3) Raja Jugal Kishore  (Fifth in              (Fourth in Singh (died 1816)   descent from           descent from       |             Srikishen Singh)       Srikishen Singh)       |    ----------------------    |                    | Maharaja Anand      Maharaja Nawal

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Kishore Singh       Kishore Singh (died 1838)          (died 1855)                          |                --------------------------                |                        |         Maharaja Rajendra           Mahendra         Kishore Singh               Kishore Singh         (died 1883)                 (died before his                |                    brother)                |         Maharaja Sir Harendra         Kishore Singh, who died         childless on 26th March,         1893,              leaving         (1) Rani Sheoratan Koer                 died         (2) Rani Janki Koer             Defendant No. 1 13      It should  be mentioned here that in none of the suits- Title Suit  No. 139  of 1895, Title Suit No. 108 of 1896 and Title Suit  No. 34  of 1905  referred to above, the question whether Raja  Jugal Kishore Singh had become a member of the family of  Raja Dhrub  Singh either by virtue of adoption or as Putrika Putra (appointed daughter’s son) was decided even though the  plaintiff in  each of the above suits had raised such a plea.      As  mentioned   earlier  after   Maharani  Janki   Kuer succeeded to  the estate  of Maharaja Harendra Kishore Singh on the  death of Maharani Sheo Ratna Kuer, the management of the estate  was taken  over by  the Court of Wards, Bihar in 1897, a  declaration being made that Maharani Janki Kuer was incompetent to  manage the  estate. Since  the properties of the estate  were spread  over both in the State of Bihar and in the  State of Uttar Pradesh, the Bihar properties came to be managed by the Court of Wards, Bihar while those in Uttar Pradesh were  being managed  by the  State of  Uttar Pradesh through the Collector of Gorakhpur. Maharani Janki Kuer took up her  residence at  Allahabad where  she  eventually  died childless and  intestate on November 27, 1954. Shortly after her death  on December  6, 1954,  the State of Bihar made an application before  the Board of Revenue, Bihar praying that the estate of Maharaja Harendra Kishore Singh which was held by Maharani  Janki Kuer as a limited heir and managed by the Court of  Wards and  the Government  of  Uttar  Pradesh,  as stated above should be released from the management of Court of Wards and handed over to the Bihar State Government since the State  of Bihar  had become  entitled to  the estate  by virtue of  the rule  of escheat, as there was no heir of the last male  holder who  could lay  claim  to  it.  Upon  this application, the  Board of  Revenue directed  the issue of a Notification which  was published  in the  Official  Gazette calling upon  interested parties  to prefer their claims, if any, to the properties comprised in the estate. In pursuance of this  Notification about  one dozen persons came forward, some of  whom claimed  to be  entitled to  the stridhana and personal  properties   of  late   Maharani,  such  as  cash, jewellery etc.;  some  others  claimed  to  be  entitled  to maintenance allowance  out of  the estate  while some others claimed the  entire estate  on the footing that the title to the estate  had passed  to them  by succession  which opened upon the  death of  Maharani Janki Kuer. Amongst the persons who thus claimed title to the estate, mention may be made of Bhagwati Prasad Singh of village Baraini, in the District of

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Mirzapur (Uttar Pradesh) and Suresh Nandan Singh of Sheohar. The Board  of Revenue,  however,  declined  to  release  the estate in  favour of any of the claimants and on January 18, 1955 passed  an order  to the effect that the Court of Wards would retain 14 charge of  the properties  comprised in the estate until the dispute as  to its  succession was determined by a competent civil court.  Thereafter one Ram Bux Singh instituted a suit being Title  Suit No.  3 of  1955 on  the file  of the Civil Judge at  Varanasi claiming  title to  the estate. That suit was, however, allowed to be withdrawn with the permission of the court.      Subsequently came to be instituted Title Suit No. 44 of 1955 on the file of the Subordinate Judge at Patna by Suresh Nandan Singh.  On his  death, his son, Davendra Nandan Singh and his  widow Ram  Surat Kuer  were brought  on  record  as plaintiffs. That  suit was  dismissed  alongwith  two  other suits with  which alone  we are  concerned in  these appeals reference  to  which  will  be  made  hereafter.  Since  the plaintiffs in  the above  suit were  also defendants  in the said two  other suits,  the plaintiffs  therein filed  three First Appeals  Nos. 169, 170 and 171 of 1966 before the High Court of  Patna against  the decrees  passed  in  the  three suits. All  the aforesaid  three appeals  were dismissed for non-prosecution by  the High  Court. We  are, therefore, not concerned with  the claim  of the plaintiffs in that suit in these appeals.      The two other suits that were filed were Title Suit No. 25 of  1958 and  Title Suit No. 5 of 1961. Title Suit No. 25 of 1958 was filed by Ambika Prasad Singh and others claiming the estate  on the  basis  that  Raja  Jugal  Kishore  Singh succeeded to  the gaddi  of Sirkar  Champarun as the adopted and affiliated son and successor of Raja Dhrub Singh and not as his  daughter’s  son  as  alleged  subsequently  by  some others; that the last male holder of the estate was Maharaja Harendra Kishore Singh, the great  grandson of the said Raja Jugal Kishore  Singh and  that plaintiff  No. 1 in the suit, Ambika Prasad  Singh  being  nearest  in  degree  among  the reversioners to  the last  male holder  to Maharaja Harendra Kishore Singh  as the descendent of Satrajit Singh, the full brother of Raja Dalip Singh was the legal heir to the estate in question.  It was pleaded that plaintiffs Nos. 2 and 4 to 8 and  10 to  13 being next in degree to the plaintiff No. 1 and plaintiff  No. 14  being the wife of plaintiff No. 7 and plaintiff No. 9 being the mother of plaintiffs Nos. 10 to 13 had also  joined the  suit in order to avoid multiplicity of suits and  conflict of  interest. It  was also  alleged that there was  an  agreement  amongst  some  of  the  plaintiffs entered into  on September  22, 1955  to  claim  the  estate jointly and  that subsequently  the said  agreement had been repudiated and  a fresh  family arrangement had been entered into by  the plaintiffs  which was  bonafide settling  their claims to  the estate. Under the said family arrangement, it had been  agreed that  the estate  in  the  event  of  their succeeding in the suit should be distributed amongst 15 them in  accordance with  the terms  contained therein. They claimed that  in any  event, the plaintiffs in the said suit alone were entitled to the estate and no others.      The next  suit with  which we  are concerned  in  these appeals is Title Suit No. 5 of 1961 which was filed by Radha Krishna Singh and others. The case of the plaintiffs in this suit was  that Raja  Dhrub Singh died leaving behind him two daughters viz.  Benga Babui  and Chinga  Babui;  that  Benga

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Babui was  married to  Babu Raghunath  Singh of Gautam Gotra who was  by caste  a Bhumihar;  that Raja  Dhrub  Singh  had become separated  from his  other agnatic  relations, namely the heirs  of Prithvi  Singh of village Sheohar and Satrajit Singh of  village Madhubani;  that on  his death  which took place in 1762, Raja Jugal Kishore Singh succeeded him as his daughter’s son  and that plaintiffs 1 to 8, sons of Bhagwati Prasad Singh  who belonged  to the family of Raghunath Singh were the  nearest heirs  of the  last male  holder, Maharaja Harendra Kishore  Singh. In  substance, their  case was that Raja Jugal Kishore Singh who succeeded to the estate of Raja Dhrub Singh continued to be a member of his natural father’s family  and   had  not  become  either  by  adoption  or  by affiliation a  member of  the family of Raja Dhrub Singh. It was further  alleged that plaintiffs 1 to 8 were men of poor means and  could not  arrange for  money to  fight  out  the litigation and  they, therefore,  had conveyed  one-half  of their right  in the suit estate under a registered sale deed dated December  12, 1958 in favour of plaintiffs 9 to 15. In view of  the said  deed, according  to the plaintiffs in the said suit,  plaintiffs 1  to 8  were entitled to one-half of the estate  and the  other half  belonged to plaintiffs 9 to 15. On  the above  basis, Title Suit No. 5 of 1961 was filed by the  plaintiffs therein for a declaration of their title. The plaintiffs  in Title  Suit No. 44 of 1955 were impleaded as defendants  in Title  Suit No.  25 of 1958 and Title Suit No. 5  of 1961.  The plaintiffs in Title Suit No. 25 of 1958 were impleaded  as defendants  in the other suits. Similarly the plaintiffs  in Title  Suit. No. 5 of 1961 were impleaded as defendants  in the  two other  suits. The  State of Bihar which had  preferred its  claim on  the basis of the rule of escheat was also impleaded as defendant in each of the three suits. The  defendants in  each of  the suits other than the State of  Bihar denied  the claim  of the plaintiffs in that suit. The State of Bihar pleaded in all the three suits that none of  the plaintiffs was an heir of the last male holder. The Additional  Subordinate Judge,  Patna who  tried all the three suits  together dismissed  all of them by his judgment dated February  15, 1966.  The principal  issues which arose for decision before the trial court were:      (1)   Was Raja Jugal Kishore Singh the Putrika-Putra of           Raja  Dhrub   Singh  by   appointed  daughter  and           affiliated as such as 16           alleged by  the plaintiffs in Title Suit No. 44 of           1955 and Title Suit No. 25 of 1958?      (2)   Was succession  to Bettiah Estate governed by the           Mithila or the Benares School of Hindu Law?      (3)   Was the Bettiah Estate self-acquired or the joint           property of Raja Jugal Kishore Singh?      (4)   Was the succession to the Bettiah estate governed           by the rule of primogeniture?      (5)   Whether any of the plaintiffs was the heir of the           last male holder; and      (6)   Has the  Bettiah estate  vested in  the State  of           Bihar by escheat?      At the  conclusion of  the trial,  the trial court held that the  custom of taking a son as Putrika-Putra had become obsolete by  the time  Raja Dhrub  Singh was alleged to have taken Raja  Jugal Kishore  Singh as  the Putrika-Putra  and, therefore, Raja  Jugal Kishore  Singh was  not the  Putrika- putra of Raja Dhrub Singh; that the succession to the estate of Maharaja  Harendra Kishore  Singh  was  governed  by  the Benares School  of Hindu  law; that  the estate  having been acquired by  force of arms was the self-acquired property of

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Raja Jugal Kishore Singh; that the succession of the Bettiah estate was  not governed  by the rule of primogeniture; that in view  of the  finding that  Raja Jugal  Kishore Singh was neither putrika-putra  nor was he affiliated to of family of Raja Dhrub  Singh by adoption in any form, the plaintiffs in Title Suit  No. 25  of 1958  and Title  Suit No.  44 of 1955 could not  claim to  be the  heirs of  the last male holder: that the  plaintiffs in  Title Suit  No. 5  of 1961  had not established that  they were  the reversioners  to the estate and as  none of  the  plaintiffs  in  the  three  suits  had established that  they were  entitled to  the estate  it had vested in  the State  of Bihar  by virtue  of  the  rule  of escheat.      It is  already stated that the three First Appeals Nos. 169 to  171 of  1966 filed  on the file of the High Court by the plaintiffs  in Title  Suit No. 44 of 1955 were dismissed for non-prosecution.  Aggrieved by  the decree  of the trial court, the  plaintiffs in  Title Suit  No. 25  of 1958 filed First Appeals  Nos. 130,  131 and 134 of 1966 on the file of the High Court of Patna and the plaintiffs in Title Suit No. 5 of  1961 filed First Appeals Nos. 85, 86 and 87 of 1966 on the file  of the said Court. The above said six appeals were heard by  a Bench  of three learned Judges of the High Court viz. G.  N. Prasad,  J., A.  N. Mukherji, J. and Madan Mohan Prasad, J.,  G. N. Prasad, J. held that the custom of taking a son  as Putrika-Putra had become obsolete by the time Raja Dhrub Singh  was alleged  to have  taken Raja  Jugal Kishore Singh as putrika-putra and so Raja Jugal Kishore Singh had 17 not become  a member  of the  family of Raja Dhrub Singh and that the  plaintiffs in  Title Suit  No. 25  of 1958 had not therefore established  their claim  to the estate. He agreed with the  finding of  A. N. Mukherji, J. that the plaintiffs in Title  Suit No.  5 of 1961 had established their title to the estate.  A. N.  Mukherji, J. held that the plaintiffs in Title Suit  No. 5  of 1961 were entitled to succeed in their action and  agreed with the finding of G. N. Prasad, J. that Raja Jugal  Kishore Singh  had not  become a  member of  the family of  Raja Dhrub  Singh either as a putrika-putra or by adoption for  the reasons  given by  G. N.  Prasad, J. Madan Mohan Prasad,  J. agreed  with the  opinions of G. N. Prasad and A.  N. Mukherji,  JJ. that  the institution  of putrika- putra had become obsolete during the life-time of Raja Dhrub Singh and  that Raja  Jugal Kishore Singh had not been taken as putrika-putra  or in  adoption by  Raja Dhrub  Singh.  He however, did  not agree  with the opinion expressed by A. N. Mukherji, J.  which had  the concurrence of G. N. Prasad. J. that the  plaintiffs  in  Title  Suit  No.  5  of  1961  had established that  the plaintiffs  1 to 8 in Title Suit No. 5 of 1961  were  the  nearest  reversioners  entitled  to  the estate. In view of the aforesaid opinions, the appeals filed by the  plaintiffs  in  Title  Suit  No.  25  of  1958  were dismissed since  all the  three Judges  were unanimously  of opinion that  Raja Jugal  Kishore Singh  had  not  become  a member of  the family of Raja Dhrub Singh either as putrika- putra or  by adoption  and all  the  appeals  filed  by  the plaintiffs in  Title Suit No. 5 of 1961 were allowed. In the result, Title  Suit No.  5 of 1961 was decreed as prayed for Consequently the  claim of the State of Bihar was negatived. Aggrieved by  the decree  passed in the six appeals referred to above,  the plaintiffs  in Title  Suit  No.  25  of  1958 applied to  the High Court for the issue of a certificate to prefer appeals to this Court. The State of Bihar also made a similar application. It should be mentioned here that in the course of  the hearing of the appeals before the High Court,

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one of  the contentions  urged by the parties other than the plaintiffs in  Title Suit  No.  25  of  1958  was  that  the decision of  the Privy Council in Ghanta Chinna Ramasubbayya & Anr.  v. Moparthi  Chenchuramayya,  Minor  &  Ors.(1)  was binding on  the courts  in India and that it was not open to the plaintiffs  in Title  Suit No.  25 of  1958 to urge that Raja Dhrub  Singh could  take Raja  Jugal Kishore  Singh  as putrika-putra. G. N. Prasad, J. with whom A. N. Mukherji, J. agreed had  held relying  on the above decision of the Privy Council that  the institution  of putrika-putra  had  become obsolete during the relevant period. It was contended by the plaintiffs in Title Suit No. 25 of 1958 that the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr. v. 18 Moparthi  Chenchuramayya,  Minor  &  Ors.  (supra)  was  not binding on  Indian courts after India became a Republic. The Division Bench which heard the applications for the issue of certificates  being   of  opinion   that  the  case  of  the plaintiffs  in   Title  Suit  No.  25  of  1958  involved  a substantial question  of law as to the interpretation of the Constitution viz.  whether the decision of the Privy Council in  Ghanta   Chinna  Ramasubbayya   &   Anr.   v.   Moparthi Chenchuranayya, Minors  & Ors.(supra)  was  binding  on  the Indian  Courts  after  India  became  a  Republic  issued  a certificate in favour of the plaintiffs in Title Suit No. 25 of 1958  under Article  132(1) of  the Constitution.  On the applications filed  by the  State of  Bihar, the  High Court issued a  certificate under  Article 133 of the Constitution certifying that  the case  involved substantial questions of law of  general importance  which in the opinion of the High Court needed  to be  decided by  the Supreme  Court. On  the basis of  the above  certificates, plaintiffs  in Title Suit No. 25  of 1958 filed Civil Appeals Nos. 114-119 of 1976 and the State of Bihar filed Civil Appeals Nos. 494-496 of 1975. After the  above appeals were filed the respondents in Civil Appeals Nos.  114-119 of  1976 who had succeeded in the High Court filed  a petition  before this  Court  to  revoke  the certificate issued by the High Court under Article 132(1) of the Constitution.  When the  above appeals were taken up for hearing  alongwith   the  petition  for  revocation  of  the certificate, the appellants in Civil Appeals Nos. 114-119 of 1976 filed a Special Leave Petition under Article 136 of the Constitution requesting  this Court  to grant  them leave to canvass  questions   other  than   those  relating   to  the interpretation of the Constitution in support of their case. We have  heard  the  parties  on  the  above  Special  Leave Petition also.  As mentioned  earlier, we propose to dispose of by  this Judgment  Civil Appeals Nos. 114-119 of 1975 and the Special Leave Petition referred to above.      At the  outset it is to be noted that the appellants in Civil Appeals  Nos. 114-119 of 1975 can succeed only if they establish that  Raja Jugal  Kishore Singh had become the son of Raja Dhrub Singh in a manner known to law. In the instant case even  though there was some amount of ambiguity at some early stages  of these  proceedings in the trial court as to the true  case of  the appellants,  finally  they  took  the position that  Raja Jugal  Kishore Singh  had become the son (putrika-putra) of  Raja  Dhrub  Singh  as  the  latter  had appointed his  daughter i.e. the mother of the former as his putrika for  the purpose of begetting a son who would be his (latter’s) putrika-putra.  The State  of Bihar and the other contesting parties claimed that the practice of appointing a daughter to  beget a  son who  would  be  putrika-putra  had become obsolete by the time such appointment was alleged to 19

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have taken  place in this case; that even if such a practice was in vogue, Raja Dhrub Singh had in fact not made any such appointment and  lastly the  appellants who  claimed on  the above basis  were not  the nearest  reversioners of the last male holder.  From the pleadings relevant for the purpose of these appeals, three questions arise for consideration:-      (1)  Whether the  practice of  appointing a daughter as           putrika for  begetting a son who would be putrika-           putra was  in vogue  during the  life-time of Raja           Dhrub Singh?      (2)  If the  answer to  question  No.  (1)  is  in  the           affirmative, whether  Raja Dhrub Singh had in fact           appointed his  daughter (the  mother of Raja Jugal           Kishore Singh) as his putrika? and      (3)  If the  answers to  questions Nos. (1) and (2) are           in the  affirmative, whether  the appellants  were           the nearest  reversioners to the last male holder-           Maharaja Harendra  Kishore Singh,  if he had lived           till the  date on  which the limited estate ceased           i.e. till  the death  of Maharani Janki Kuer which           took place on November 27, 1954?      From the points formulated above, it is evident that if the appellants  in these  appeals i.e.  plaintiffs in  Title Suit No.  25 of 1958 establish that Raja Jugal Kishore Singh was the putrika-putra of Raja Dhrub Singh, the plaintiffs in Title Suit  No. 5 of 1961 have to fail but if the appellants fail to  establish that  fact, they fail irrespective of the result of  the dispute  between the plaintiffs in Title Suit No. 5  of 1961  and the  State of  Bihar.  It  is  in  these circumstances, we  proposed to  dispose  of  these  and  the connected appeals in two parts.      In order  to determine whether the practice of taking a son as  putrika-putra was  prevalent at  the time  when Raja Dhrub Singh  is alleged  to have  taken Raja  Jugal  Kishore Singh as putrika-putra, we have to examine the several texts and practices  prevailing in  India at the relevant point of time. According  to Yajnavalkya, the sources of Hindu Dharma are those enumerated in the following text:-      Shruti smritih sadacharah swasya cha priyamatmanah      samyakasankalpajah kamo dharmmoolmidang smrittam.      (The sources  of Dharma  are described  to be  (1)  the Vedas, (2)  the Smritis,  (3) the practices of good men, (4) what is  acceptable to  one’s own  soul, and  (5) the desire produced by a virtuous resolves).      While interpreting the Smritis one difficulty which has to be encountered is the uncertainty about their chronology. Another difficulty  felt by  many jurists while interpreting them is the existence 20 of conflicting  texts, sometimes  in the  same Smriti.  This appears to  be on  account of  the successive changes in the views of  society, which  may have  taken place over several centuries. Very  often the  prevailing practices and customs at a given point of time might be quite different from those obtaining some  centuries before that time Maxims which have long ceased to correspond with actual life are reproduced in subsequent treatises,  as pointed  out by  John.  D.  Mayne, either without comment or with a non-natural interpretation. "Extinct usages  are detailed without a suggestion that they have become  extinct from an idea that it is sacrilegious to omit anything that has once found a place in the Holy Writ.. Another inference is also legitimate that while some Smritis modified their rules to provide for later usages and altered conditions of  society, other  Smritis repeated the previous rules which had become obsolete, side by side with the later

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rules. (See  Mayne’s Treatise on ’Hindu law and Usage’ (1953 Edition) pp 20-21).      Etymologically, the  word ’putrika’  means  a  daughter (especially a  daughter appointed  to raise male issue to be adopted by  a father  who has  no sons), and ’putrika-putra’ means a  daughter’s son who by agreement or adoption becomes the son  of her  father (Vide Sanskrit-English Dictionary by Sir M. Monier-Williams). According to Hemadri, the author of Chaturvarga Chintamani (13th Century), a ’Putrika-putra’ can be of  four descriptions. The following passage appearing at page 1046  in Volume II, Part (4) of the Collection of Hindu Law Texts-Yajnavalkya-Smriti  with the  commentaries of  the Mitakshara etc. (translated by J. R. Gharpure) refers to the four kinds of putrika-putras:           "The putrika-putra  is of  four descriptions.  (1)      The first  is the  daughter appointed to be a son. (See      Visishtha XVII.  15" Putrikaiveti ) (2) The next is her      son. He  is called  "the son of an appointed daughter",      without any  special contract.  He is,  how ever, to be      distinguished from the next i.e. the third class. He is      not in  the place of a son, but in the place of a son’s      son  and   is  a  daughter’s  son.  Accordingly  he  is      described as a daughter’s son in the text of Sankha and      Likhita: "An  appointed daughter is like unto a son, as      Prachetasa has  declared: her offspring is termed a son      of an  appointed daughter:  he offers funeral oblations      to  the  maternal  grand-father  and  to  the  paternal      grandsire. There  is no  difference between a son’s son      and a daughter’s son in respect of benefits conferred."      (3) The  third description  of a  son of  an  appointed      daughter is  the child born of a daughter who was given      in marriage  with an  express stipulation  as stated by      Vasishtha 21      XVII.17. He  appertains to  his maternal grandfather as      an adopted  son. (4)  The fourth  is a  child born of a      daughter who  was given  in marriage with a stipulation      in this form "the child who shall be born of her, shall      perform the  obsequies of both." He belongs as a son to      both grandfathers.  But in  the case  where she  was in      thought selected  for an  appointed daughter, she is so      without a  compact, and  merely by  an act of the mind.      (Manu  Ch.   IX  127   and  136),   Hemadri  quoted  in      Colebrocke."      It is  well known  that in  the ancient  Hindu law, the right of  a  person  to  inherit  the  property  of  another depended principally  on his  right to offer pinda and udaka oblations to the other. The first person who was so entitled was the  son. As  time passed  the concept  of  sonship  was modified and by the time of Manu thirteen kinds of sons were known-aurasa son  who was  begotten on a legally wedded wife and twelve  others who  were known  as secondary sons (putra prathinidhis) and  Manu omits any reference to putrika-putra as such although in another place he observes :      Aputroanen vidhina sutang kurvit putrikam      Yadpatyam Bhavedasyah Samepoothro bhavedithi      (He who  has no  son  may  make  his  daughter  in  the following manner  an appointed  daughter (Putrika  saying to her husband) ‘the male child born of her shall be my son’).      Another reading of the same sloka gives the second part of the  above sloka  as          ‘yadupathaya  bhavadasthaya thanmasthathu sadhukarma’     (The (male)  child born of her shall perform my funeral rites).      Yathaivathma thatha puthrah puthren duhithasma      Thasyamatmani thishthanthyam kathmanyo dhananghareth

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                                                Manu IX 130      (A son  is even as one’s self, a daughter is equal to a son, how  can another  (heir) take  the estate  while  (such daughter who is) one’s self lives).      Yajnavalkya  says   that  twelve   sons  including  the legitimate son who is procreated on the lawfully wedded wife were recognized  by law. Of them, it is said, the legitimate son is  considered to  be the  primary  son  and  others  as secondary sons. The relevant text reads thus:      Aursodharmmapatnija statsamah putrikasutah      Kshetrajah kshetra jatastu sagotrerentaren wa      grihe prachanna uttpanno goodhjastu sutah smritah      kanin kanyakajato matamah sutomatah 22      Akshatayang kshatayamba jaatah paunarbhavah sutah      Dadyanmata pita wa yang sa putro dattako bhaweta      Kritashcha tabhyang veekritah kritrimah syataswa-      yangkritah      dattatma tu swayang Datto garbevinah sahodhajah      Utasristho grahyate yastu sopividhho bhawetsutah      The above  text is  translated by  S. S.  Setlur in his book entitled  ‘A complete  Collection of Hindu law Books on Inheritance’ thus :-           "The legitimate  son  is  one  procreated  on  the      lawful wedded  wife. Equal  to him  is the  son  of  an      appointed daughter. The son of the wife is one begotten      on a wife by a sagotra of her husband, or by some other      relative. One,  secretly produced  in the house, is son      of hidden  origin. A  damsel’s child  is one born of an      unmarried woman  : he  is  considered  as  son  of  his      maternal grandsire.  A child, begotten on a woman whose      first marriage  had not been consummated, or on one who      had been  deflowered before marriage, is called the son      of a  twice-married woman.  He whom  his father  or his      mother gives  for adoption shall be considered as a son      given. A  son bought  is one who was sold by his father      and mother. A son made is one adopted by a man himself.      One,  who   gives  himself,  is  self  given.  A  child      accepted, while yet in the womb, is one received with a      bride.  He  who  is  taken  for  adoption  having  been      forsaken by his parents, is a deserted son."      ‘Aurasa’ is  the son procreated by a man himself on his wife married  according to  sacramental forms  prescribed by Sastra. ‘Putrikaputra’  is the son of an appointed daughter. ‘Kshetraja’ is  the son  begotten on the wife of a person by another person-sagotra  or any  other. ‘Gudhaja’  is the son secretly born  in a  man’s house  when it is not certain who the father is. ‘Kanina’ is the son born on an unmarried girl in her  father’s house before her marriage. ‘Paunarbhava’ is the son of a twice married woman. ‘Dattaka’ is the son given by his  father or mother. ‘Krita’ is the son bought from his father and  mother or from either of them. ‘Kritrima’ is the son made  (adopted) by  a person himself with the consent of the adoptee  only.  ‘Svayamdatta’  is  a  person  who  gives himself to  a man as his son. ‘Sahodhaja’ is the son born of a woman  who was  pregnant at  the  time  of  his  marriage. ‘Apavidha’ is a person who is received by another as his son after he  has been  abandoned by  his parents  or either  of them. There is one other kind of son called ‘Nishada’ who is the son  of a  Brahmin by  a Sudra who is not referred to in the above quoted text of Yajnavlkya. While commenting on the above text, Vijnanesvara explains ‘putrika- 23 putra’ in  the Mitakshara  (composed between 1070-1100 A.D.) as follows :-

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         Tatasamah   putrikasutah    tatsamah   aurasasamah      putrikayah  sutah  ataevoursasamah,  yathah  vashisthah      abhratrikang  pradasyami   tubhyang   kanyamalangkritam      asyang yo jayate putrah sah me putro bhawedititee athwa      putrikaiv   sutah    putri   kasutah    sopyoursasamaev      pitravayavanamalpatwata  matravayavanang   bahulyachha,      Yathas vashishthah tritiyah putrah putrikaivetyarthah      (The son  of an  appointed daughter  (putrika-putra) is equal to  him: that is equal to the legitimate son. The term signifies‘son of a daughter’. Accordingly he is equal to the legitimate son  as described by Vasishtha: "This damsel, who has  no   brother,  I  will  give  unto  thee,  decked  with ornaments: the son who may be born of her shall be my son."; Or that  term may  signify a  daughter becoming  by  special appointment a son. Still she is only similar to a legitimate son; for  she derives  more from  the mother  than from  the father. Accordingly  she is mentioned by Vasishtha as a son, but as  third in rank. "The appointed daughter is considered to be  the third  class of  sons.") (Vide S. S. Setlur on ‘A complete collection  of Hindu  Law Books  on Inheritance’ p. 30).      Proceeding  further   Vijnanesvara  comments   on   the      following text of Yajnavalkya :           Pinddonshaharshchekshang poorvabhawe parah parah      Among these,  the next  in order  is heir  and presents funeral oblations on failure of the preceding) as under :-      Atekshang     poorvoktanang     putranang     poorvasya      poorvasyabhawe  uttrah   pindadhah  shradhdong  shaharo      veditavyaah      (Of these twelve sons abovementioned, on failure of the first, respectively,  the next in order, as enumerated, must be considered  to be  the giver  of the  funeral oblation or performer of obsequies, and taker of a share or successor to the effects.).      Then Vijnanesvara  says with  reference  to  what  Manu Smritis has  stated about  the  right  of  the  primary  and secondary sons to succeed to the estate of a person thus :           "Manu, having  promised  two  sets  of  six  sons,      declares the first six to be heirs and kinsmen; and the      last to be not heirs, but kinsmen :      "the true  legitimate issue,  the son  of a wife, a son      given, and  one made  by adoption,  a son  of concealed      origin, and 24      one rejected  are the six heirs and kinsmen. The son of      an unmarried  woman, the son of a pregnant bride, a son      bought, a  son by  a twice-married  woman, a  son self-      given, and  a son  by a  Sudra woman, are six not heirs      but kinsmen."      Thereafter he  deals with  the  right  of  a  woman  to inherit the estate of one, who leaves no male issue. He says "that sons,  principal and secondary, take the heritage, has been shown.  The order of succession among all on failure of them, is  next declared." And then quotes the following text of Yajnavalkya :-      Patni duhitharaschaiva pithrau bhratarastatha      tata suta gotraja bandhuh shisya sabrahmacharinah      akshamabhawe poorvasya dhanbhaguttarottarah      swaryathsya hyaputrasya sarv varnekshwayan vidhih      (The  wife,  and  the  daughters  also,  both  parents, brothers likewise,  and their  sons, gentiles,  cognates,  a pupil, and  a fellow  student: on failure of the first among these, the next in order is indeed heir to the estate of one who departed  for heaven  leaving no  male issue.  This rule extends to all classes).

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    Commenting on the above text, Vijnanesvara says:           Mkhyagaunsutha   dhay    grihrantitee    nirupitam      tekshambhawe sarwekshang dayadakrama uchyate, poorvokta      dwadash   putra    yasyang   na    santi    asavaputrah      tashyaputrasya swaryatasya  purlokang gatasya ghanbhaka      ghangrahi  akshang   patnayadinamanukrantanang   madhye      poorvasya  poorvashyabhawe  uttara  uttaro  ghanbhagiti      sambandhah      (He, who  has no  son of any of the twelve descriptions above-stated is  one having  ‘no male issue’. Of a man, thus leaving no  male progeny,  and departing  for another world, the heir,  or successor,  is that person, among such as have been here  enumerated (the wife and the rest) who is next in order, on  failure of the first mentioned respectively. Such is the construction of the sentence).      From the foregoing, it is obvious that in the course of the  passages   extracted  above,   Vijnanesvara  was   only commenting upon  the relevant text of Yajnavalkya which laid down the  practice  prevalent  in  ancient  times.  He  also notices that  according to  Manu only six of the twelve sons were entitled to succeed to the estate and the remaining six were not  heirs but  kinsmen. We  have not  been  shown  any Commentary  of  Vijnanesvara  that  at  the  time  when  the Mitakshara  was  written,  all  the  twelve  kinds  of  sons described by Yajnavalkya were in fact entitled to succeed to the estate of the deceased and that the wife of the deceased succeeded to his estate only when none of the 25 twelve kinds  of sons  was existing.  Certainly that has not been the practice for several centuries. In the absence of a son, grandson or great grandson (aurasa or adopted) the wife succeeds to  the estate  of her  husband. The other kinds of sons including  putrika-putra are not shown to have preceded the wife.      Baudhayana who belonged to the Krishna Yajurveda School and who  composed the  Baudhayana Dharma Sutra long prior to the Mitakshara  refers to  the  twelve  kinds  of  sons  and divides them  into two  classes-one being  entitled to share the inheritance  and the  other to  be members of the family only:      Aurasang putrikaputrang kshetrajang dattkritrimau      goodhhajang chapvidhang cha rikthabhajah prachakchate      Kanin cha sahodhang cha kritang pounarbhavang tatha      swayangdatang nikshadang cha Gotrabhajah prachakchte      In regard  to  this  they  quote  also  (the  following verses):-      They call  the legitimate  son, the son of an appointed daughter, the  son begotten  on a wife, the adopted son, the son made,  the son  born secretly,  and the  son  cast  off, entitled to share the inheritance.      The spinster’s son, the son taken with a bride, the son bought, the  son of  a twice-married  woman, the  self-given son, and  the Nishada-(these)  they call  members of  (their father’s  family)   (Vide  West  &  Buhler  on  ‘Hindu  Law- Inheritance’ at p. 317).      That some  of the  secondary sons  were not entitled to succeed according to Baudhayana may be noticed here and this statement does  not agree  with the  Mitakshara’s Commentary that all the principal and secondary sons succeed before the wife. This shows that the statement in the Mitakshara refers partly to historical facts and partly to existing facts.      Vishnu  Dharmasastra   which  according  to  Dr.  Jolly belongs to  the third century A.D. describes ‘putrika-putra’ as follows:-      Putrikaputrasthrithayah

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    yastwasyaah putrah sa me putro bhawediti ya pithra      datta sa puthrika      putrikavidhinaapratipaditapi bhratrivihina puthrikaiv      (The third  is the son of an appointed daughter. She is called an  appointed daughter,  who is  given  away  by  her father with  the words, ‘The son whom she bears, be mine’. A girl who has no brother is 26 considered an  appointed daughter,  though she  be not given away according  to the  rule of an appointed daughter) (Vide West & Buhler on ‘Hindu Law-Inheritance’ at p. 338).      In this  text what  needs  to  be  noticed  is  that  a brotherless daughter  becomes a  putrika even  if she is not given according to the prescribed procedure.      Vasishtha who according to Dr. Jolly must have composed his Dharma  Sutra several  centuries before Christ describes ‘putrika’ as follows :-      Tritya puthrika,  vigyayate, abhratrika pungsah pith-      rinbhyeti pratichhinang gachhati putratwama      Abhrathrikang pradasyami tubhyang kanyamalangkritama      Ashyang yo jayate puthrah sa me puthro bhawediti      (The third  is an  appointed daughter. It is known that "the girl  who has no brother comes back to the males of her own family,  to her  father  and  the  rest,  returning  she becomes their  son." Here  follows the verse to be spoken by the father when appointing a daughter, "I shall give thee to the husband,  a brotherless  damsel, decked  with ornaments; the son  whom she  may bear,  he be  my son."  (Vide West  & Buhler on ‘Hindu Law-Inheritance’ at p. 331).      In the  above text  "the girl  who has no brother comes back to  the males  of her own family, to her father and the rest, returning  she becomes their son" apparently refers to the following Shloka in Rig Veda :-      Abhratew punsa aeti pratichi      Gartarugiv sanye dhnanama      jayew patya ushatee suvasa      Uksha hashtreva nirirnite apshah                           -Rig Veda, I, Sukta 124. Stanza 7.      (She goes  to the West, as (a woman who has) no brother (repairs) to  her male (relatives), and as one ascending the hall (of  justice) for the recovery of property. (She mounts in the  sky to claim her lustre) and like a wife desirous to please her  husband, Ushas  puts  on  becoming  attire,  and smiling as it were, displays her charms).      Apararka or  Aparaditya was  a king  who ruled  in  the twelfth century. His commentary on the Yajnavalkya Smriti is considered to  be of  paramount authority and is referred to with respect in many of the 27 later Digests.  After referring to the primary and secondary sons enumerated by Yajnavalkya, Apararka observes :-      Puthrapratinidhinang madhye dattakah avang kaliyuge      grahyah      Athah    aev     kalou    nivarthantha    ityanuvrittau      shaunkenoktam  "dathoursetarekshang   thu   puthrathwen      parigrahah " ithee.      (Of the  different kinds  of substitutes  for son, only the Dattaka is valid during the Kaliyuga. Therefore Shaunaka says: "the  acceptance of  sons other than Datta and Aurasa" is prohibited  in the  Kaliyuga.) (Vide Ghose on ’Hindu Law’ Vol. II at p. 254.)      The verse  of Shaunaka  quoted by  Apararka is found in the verses  on Kalivarjya collected and printed at page 1013 of Vol.  III of  P. V.  Kane’s History  of Dharmasastra. The 17th verse reads (The acceptance of sons other than datta or

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aurasa) is one of the acts not to be done in Kaliyuga.      We find  the following text in ’Parasara Madhava’ which is believed to have been written by Madhavacharya, the prime minister of  the Vijayanagara  kings in  or about  the  year 1350:      Dattavyatiriktanang gounputrarnang rikthbhaktava      Pratipadakani wakyani yugantaravikshyarni      kalou yuge tekshang putratwen parigrahrnasya      smrityantare nikshidhatwata           " Dattourasetrekshantu puthrathwen parigrahah           devarern sutotpattih wanaprashthashramagrahah           kalou yugotwimana dharmana varjyanahurmanikshinah           ithee      (The texts  establishing the  right to  inherit of  the subsidiary sons  other than  the Dattaka  or the adopted son were applicable in past ages (and have no force now) because in another Smriti their being taken as sons is prohibited in the Kali  Yuga: ’The  acceptance as  sons of  other than the Dattaka and Aurasa sons,’ the procreation of a son by Niyoga by the  husband’s younger  brother and  adopting the life of the Vanaprastha  in old  age are  prohibited by  the  wise.) (Vide Ghose on ’Hindu Law’ Vol. II at p. 626).      The quotation  in the  above Commentary is stated to be from Aditya Purana.      The Smriti  Chandrika of Devannabhatta according to Dr. Julius Jolly  is a remarkable book on Hindu Dharmasastra for its originality  and for  its early  date. Though  following Mitakshara on  most points  of importance,  it introduces  a great deal of new matter as well particularly with regard to the rights of woman over Stridhana, relying upon 28 many Smriti  texts not  referred to in the Mitakshara. It is believed that  the  Smriti  Chandrika  was  written  in  the thirteenth century  for the  author  quotes  Apararka  (12th century) and  he in  his turn  is quoted by Mitramisra (14th century).      In  the   chapter  entitled  ’On  partition  of  wealth received  through   secondary  fathers",   Smriti  Chandrika states:           Awang     nirupitagournputhranang      surwekshang      yugantare     puthratwen     parigrah,     Kalou     tu      dattakasyaikasya  "dattourasetarekshang   tu  putratwen      parigrahah:    itee,    Kaleradou    dharmaguptyarthang      mahatmabhirdattakourse tarekshang  putratwen  parigraha      nivarrnata,   putrika    karanmapyasmadev   wakyatkalou      nivaritama,   Dattoursetratwatputrikayah,   awang   cha      kalavoursaputrapouthrayorabhawe dattak  aev  gounputhro      bhawati nanya ityanusandheyama.      (The  secondary  sons  thus  enumerated  had  all  been recognised as  sons in  former ages;  but, in  the Kali age, adopted son alone is recognized. By the text: "None is to be taken as  a son  except a  son of  the body  or one  who  is adopted." the  learned have, in the early period of the Kali age, prohibited  the recognition  of any  other son than the legitimate and  the adopted,  with the  view of  maintaining virtue in the world.      The appointment  of a daughter to raise up a son to her father must  also be  considered by  the  same  text  to  be prohibited in  the Kali age, such a son not being either one of the body or adopted. The conclusion hence is that, in the Kali age,  in default  of a  legitimate son or grandson, the adopted  son   alone  and  none  else  is  recognised  as  a subsidiary  son.   (Vide  Setlur  on  ’Hindu  Law  Books  on Inheritance’ at page 272).      It is  no doubt  true that in some earlier decisions to

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which a  detailed reference  at this  stage is not necessary some  statements   found  in  Smriti  Chandrika  which  were directly in  conflict with  the Mitakshara were not accepted and the  Mitakshara was  given the  preference but  still as observed by  Mayne there  can, however, be little doubt that its general  authority is  fairly high on points on which it does not  come into conflict with the Mitakshara and that it is a  work which  is referred to throughout India with great respect-by Nilakantha, Mitramisra and others.      Dattaka-Chandrika which is a recognised treatise on the law of  adoption declares  in paragraphs  Nos. 8  and  9  of section 1 thus:           "8.  A   substitute.  Now   such  is   of   eleven      descriptions, the  son of  the wife  and the rest. Thus      Manu (ordains): "Sages declare 29 these eleven  sons (the  son of  the wife  and the  rest) as specified to be substitutes for the real legitimate son; for the sake  of preventing  a failure of obsequies." Vrihaspati also. "Of  the thirteen  sons who  have been  enumerated, by Manu in  their  order,  the  legitimate  son  and  appointed daughter are  the cause of lineage. As oil is substituted by the virtuous  for liquid  butter;  so  are  eleven  sons  by adoption substituted  for the  legitimate son  and appointed daughter."      9. Of  these however  in the  present age,  all are not recognised. For  a text  recites:-"Sons of many descriptions who were  made by  ancient saints  cannot now  be adopted by men,-by reason  of their  deficiency of  power;" and against those other  than the son given, being substitutes, there is a prohibition  in a passage of law wherein after having been promised,- "The  adoption, as  sons of  those other than the legitimate son  and son  given,"-it  is  subjoined,-  "These rules sages pronounce to be avoided in the Kali age." (See ’Hindu  Law Books’  edited by Whitley-Stokes in 1865 at page 630). Dattaka Mimansa  written by  Nanda Pandita between 1595-1630 states.           "64. "Sons  of many  descriptions who were made by      ancient saints  cannot now be adopted by men by reason,      of their  deficiency of power etc.", on account of this      text  of  Vrihaspathi  and  because,  in  this  passage      ("There is  no adoption,  as sons,  of those other than      the son given and the legitimate son etc.") other sons,      are forbidden  by Saunaka,  in the Kali or present age,      amongst the  sons however (who have been mentioned) the      son given, and the legitimate son only are admitted."      (See ’Hindu Law Books’ edited by Whitley-Stokes in 1865 at page 547).      In Bhagwan  Singh v.  Bhagwan Singh  & Ors.(1)  a  Full Bench of  the Allahabad  High  Court  had  to  consider  the authority  of  Dattaka  Chandrika  and  Dattaka  Mimansa  as sources of  Hindu Law.  Since some doubts had been expressed about it  by Mandlik,  Golapchandra Sarkar and Dr. Jolly who were themselves  reputed writers  on  Hindu  Law,  after  an elaborate discussion  about several  earlier  decisions  and treatises on  Hindu Law published by that time, the majority of the Full Bench (Edge, C.J., Knox, Blair and Burkitt, JJ.) expressed the 30 view that  Dattaka Mimansa  was not on questions of adoption an ’infallible  guide’ in  the Benares  School of Hindu Law. But the minority (Banerji and Aikman, JJ.) held that Dattaka Mimansa  and  Dattaka  Chandrika  were  works  of  paramount authority on  questions relating  to adoption in the Benares

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School also.  The Privy  Council in the appeal filed against the judgment  of the  Full Bench observed in Bhagwan Singh & Ors. v. Bhagwan Singh (Minor)(1) & Ors. thus:           "Their  Lordships  have  mentioned  in  the  prior      adoption  cases  the  views  of  Knox,  J.  as  to  the      authority of  the two Dattaka treatises just quoted. In      the present  case the  learned Chief Justice Edge takes      even  more   disparaging  views   of  their  authority;      denying, if  their Lordships  rightly  understand  him,      that these  works have been recognised as any authority      at all  in the  Benares School  of Law.  If these  were      anything to  show that  in the  Benares School  of  Law      these works  had been  excluded or rejected, that would      have to  be considered.  But their  authority has  been      affirmed as  part of  the general Hindu Law, founded on      the Smritis  as the  source from  whence all Schools of      Hindu Law  derive their  precepts.  In  Doctor  Jolly’s      Tagore Lecture  of 1883, that learned writer says: "The      Dattaka Mimansa  and Dattaka  Chandrika have  furnished      almost exclusively the scanty basis on which the modern      law of  adoption has  been based." Both works have been      received in  courts of  law, including  this Board,  as      high authority.  In Rangama  v. Atchama (4 Moore’s Ind.      Ap. Ca.  97) Lord  Kingsdown says:  "They enjoy,  as we      understand, the  highest reputation  throughout India."      In 12  Moore, p.  437, Sir  James Colvile  quotes  with      assent the opinion of Sir William Macnaghten, that both      works are  respected all  over India,  that  when  they      differ the Chandrika is adhered to in Bengal and by the      Southern jurists,  while the  Mimansa is  held to be an      infallible  guide  in  the  Provinces  of  Mithila  and      Benares.  To  call  it  infallible  is  too  strong  an      expression, and  the estimates  of Sutherland,  and  of      West and  Buhler, seem  nearer the true mark; but it is      clear that  both works must be accepted as bearing high      authority for  so long a time that they become embedded      in the general law."      The  writings   of  Sir   William  Macnaghten,  Morley, Colebrooke, Sir  Thomas Strange,  Babu Shyama  Charan Sarkar and J.  S. Siromani  supports the  above view.  In  Rajendra Narain Lahoree  v.  Saroda  Sonduree  Dabee,(2)  Uma  Sunker Moitro v. Kali Komul Mozumdar(3), 31 Lakshmappa v.  Ramava(1), Waman  Raghupati Bova v. Krishnaji Kashiraj Bova(2),  Minakshi v.  Ramanada(3), Tulshi  Ram  v. Behari Lal(4)  & Beni  Prasad v.  Hardai Bibi(5), the Indian High Courts  have accepted  the authority of Dattaka Mimansa and Dattaka  Chandrika. The Privy Council has also taken the same view  in the  Collector of  Madura v. Moottoo Ramalinga Sethupathy(6).      In Abhiraj  Kuer v.  Debendra Singh(7)  this Court  has dealt with the value to be attached to Dattaka Chandrika and Dattaka Mimansa as follows:-           "Learned  Counsel   has  emphasised   that   great      authority attaches  to all statements of law as regards      adoption that are contained in Dattak Mimansa. There is      no doubt  that for  many years now the Dattak Chandrika      of Kuvera  and Dattak Mimansa of Nanda Pandit have been      recognised to be of great authority on all questions of      adoption. It is true that Prof. Jolly in his Tagore Law      Lectures had  in no  uncertain terms  characterised the      latter to be of little value; and eminent scholars like      Dr. Mandlik  and Golap  Chandra Sarkar while writing in      the latter  part of  the last century subjected many of      Nanda Pandit’s views to unfavourable criticism. Inspite

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    of all  this the  Privy Council  in  Bhagwan  Singh  v.      Bhagwan  Singh   (1899)  L.R.  26  I.A.  153,  161  did      recognise that  both  the  Dattak  Mimansa  and  Dattak      Chandrika had  been received in courts of law including      the Privy Council as high authorities and after drawing      attention to  Lord Kingsdown’s  statements  as  regards      these in  Rungama v.  Atchama (1846) I.A. 1, 97 and Sir      James Colvile’s  statement in  Collector of  Madura  v.      Moottoo Ramlinga  Sethupathy (1868) 12 M.I.A. 397, 437,      stated  thus:-"To   call  it   (i.e.  Dattak   Mimansa)      infallible  is   too  strong  an  expression,  and  the      estimates of  Sutherland and  of West  and Buhler, seem      nearer the  true mark;  but it is clear that both works      must be  accepted as bearing high authority for so long      a time  that they  have become  embedded in the general      law." While  saying this  mention must  also be made of      the observations  of the  Privy Council  in Sri  Balusu      Gurulingaswami v.  Shri  Balasu  Ramalakshmamma  (1899)      L.R. 26  I.A. 113,  136 decided on the same date (March      11, 1899) but 32      immediately before  Bhagwan Singh’s  case, was decided,      expressing their concurrence with the view that caution      was  required  in  accepting  the  glosses  in  Dattaka      Mimansa and Dattak Chandrika where they deviate from or      added to the Smrities."      Even when they are read with care it is not possible to disbelieve the  statement of law with which we are concerned since they  are  in  conformity  with  many  other  writings discussed above.      A careful reading of the texts extracted above leads to an inference  that  the  institution  of  putrika-putra  had become obsolete  and not  recognised by  Hindu  society  for several centuries prior to the time when Smriti Chandrika or Dattaka Chandrika  were written  and these two. Commentaries belong to  a period  far behind  the life time of Raja Dhrub Singh.      Some of  the decisions relied on by the parties may now be considered.  The decision  in Nursingh  Narain &  Ors. v. Bhuttun Loll & Ors.(1) (compiled by D. Sutherland) was not a case where the claim of a putrika-putra as it was understood in Hindu  Law was  upheld. In  that case,  the Court  had to decide whether a sister’s daughter could become an appointed daughter and her son a putrika-putra. The claim was rejected with the following observations:-           "There is  no doubt  that, in ancient times, there      were many  legal substitutes  for the  sons of the body      (Auras). Manu  (Chapter 9,  V, 180),  and  Yagnyavalkya      (Mitakshara, Chapter  I, Section  2) enumerate  no less      than twelve  including the  legitimate son of the body;      and the  latter authority ranks the son of an appointed      daughter ("putrika-putra")  next to the legitimate son,      and equal  to him.  It is contended by the appellant in      this case that a sister’s daughter may be adopted under      this authority, and become "an appointed daughter", and      her son  a "putrika-putra",  but  we  do  not  see  the      slightest  resemblance   between  the  two  cases.  The      daughter appointed  to raise  up issue  for her  father      must, according to the old Hindoo Law books, be a man’s      own daughter,  the child  of his  own loins;  and it is      solely on the ground of this near relationship that the      son  of  the  daughter,  viz.  the  "putrika-putra"  is      classed in  the same  rank with  the lawful  son of the      body.           It  is  true  that,  in  default  of  an  "aurasa"

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    daughter,-a daughter of the body, that is,-a man could,      under the  old Hindoo  Law, adopt a subsidiary daughter      as a  substitute for her; but these adoptions were "for      the sake of obtaining the heaven-procured by 33      the daughter’s  son" (vide  Dattaka Mimansa,  page 138,      section 18),  and not  for the  purpose of  obtaining a      "putrika-putra,"  an   adopted  son   by  means  of  an      appointed daughter.......We  think, therefore, that the      appellant in  the present  case is  not  a    "putrika-      putra," that  is, he  is not  the son  of an  appointed      daughter in  the proper  sense of  the term,  and  has,      according to  ancient Hindoo  Law,  no  status  in  the      family of Holas Narayan.           Taking this  view of the case, it is not necessary      for us  to enter  at any  great length  into the second      point. All  the great  authorities on  Hindoo Law admit      that, except  the Dattaka  and Kritrima, no other forms      of adoption are allowable in the present age."      The last  para  of  the  above  quotation  is  of  some significance so far as these appeals are concerned.      In Thakoor  Jeebnath Singh v. The Court of Wards(1) the plaintiff laid claim to an impartible raj, raj of Ramgarh on the ground  that he  being the  father’s sister’s son of the last holder,  Rajah  Trilokenath,  who  died  unmarried  was entitled to  the estate  in preference  to the defendant who was a  distant agnate  of the  last holder.  Ordinarily  the plaintiff being a bandhu could not exclude the defendant who was a  sagotra sapinda of the last holder. He therefore, put forward the  plea that  as  his  mother  was  the  appointed daughter of  Maharaj Sidnath Singh, the paternal grandfather of the  last holder and he as putrikaputra should be treated as a son of Maharaj Sidnath Singh entitled to succeed to the estate. Two questions arose before the Judicial Committee of the Privy  Council in  that case  as in the present appeals- (1) whether  the practice of taking a ’putrika-putra’ was in vogue and  (2) whether  the mother  of the  plaintiff had in fact been  an ’appointed  daughter’. On  the first question, the Privy Council observed that it was not necessary to give a finding  but on  the other  it held that the plaintiff had not  shown  that  his  mother  was  in  fact  an  ’appointed daughter’. Even  so after  referring to the statements found in  the   books  of  Sir  Thomas  Strange  and  Sir  William Macnaghten, the Privy Council observed that it appeared that the practice of having a ’putrikaputra’ had become obsolete. In that connection, it observed thus:-           "It is  not necessary  in this case to decide that      this is so, although there certainly does not appear to      have arisen  in modern times any instance in the courts      where this custom had been considered." 34      Absence of  cases before courts within living memory in which a claim had been preferred on the basis of affiliation in putrika-putra  form showed  that the  said  practice  had become obsolete.      The contention  based on the theory that a person could take a  son as  ’putrika-putra’ was  rejected by  the Madras High Court  in the  year 1908  in Sri Raja Venkata Narasimha Appa Row  Bahadur v. Sri Rajah Saraneni Venkata Purushothama Jaganadha Gopala  Row Bahadur  & Ors.(1)  in  the  following words:-           "Mr. Seshagiri  Ayyar on  behalf of  the appellant      contended, first,  that on a proper construction of the      will the  testator’s daughter  was ’appointed’  by  her      father to  raise a  son for  him in  accordance with  a

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    practice which is now generally reputed to be obsolete.      We need not determine whether in any event the language      of the will could be made to bear this construction; it      clearly could  be so  construed only  if there  were in      existence a  living custom  to which  the words  can be      referred.  It   is  not   such  language  as  could  be      interpreted as  indicating the  testator’s intention to      revive a  dead custom, or create a new kind of heir for      himself,  unknown  to  the  law  of  the  present  day,      supposing him  to have  the power to do either of those      things."      In Nagindas Bhagwandas v. Bachoo Hurkissaondas(2) while rejecting the contention that the position of an adopted son in the  family of  the adoptive  father was  not that  of  a coparcener, the Privy Council observed:-           "It was  endeavoured to establish that proposition      by reference  to the  place which  was assigned by Manu      and other early authorities to the twelve then possible      sons of a Hindu. As to this contention it is sufficient      to say  that, whatever  may have  been the position and      rights between  themselves of  such twelve sons in very      remote times,  all of  those twelve  sons,  except  the      legitimately born  and  the  adopted,  are  long  since      obsolete."      A Division  Bench of the Patna High Court in Babui Rita Kuer v.  Puran Mal(3)  while holding that defendant No. 2 in that case  who was alleged to have been appointed as putrika by her  father had  not in  fact been so appointed, observed (but without actually deciding):           "However, the  case of  Thakoor Jeebnath  Singh v.      Court of  Wards (1874-75)  2 I.A.  163, a Privy Council      case,  is   important  in  this  connexion.  The  whole      argument addressed to us is based 35      upon the  effect  of  this  custom  of  adoption  of  a      daughter as putrika. Now the Privy Council have laid it      down that  all Hindu text-writers unanimously concur in      holding the appointment of a daughter as a son to raise      up issue  to a  sonless father  is now obsolete; and no      recent authority can be found within modern times where      the custom has received judicial sanction. In the Privy      Council case  referred to above a grave doubt is thrown      upon the  validity of  such a  custom, and  it is there      distinctly stated  that if  this custom  is ever  to be      revived, it  can only  be  on  the  clearest  and  most      conclusive evidence.  To a  like effect  is the case of      Sri Rajah  Venkata Narasimha  Appa Row  Bahadur v.  Sri      Raja Suraneni Venkata Purushothama Jaganadha Gopala Rao      Bahadur (1908)  31 Mad 310, where the custom alleged is      considered not to be a living custom. Mr. Mayne says at      p. 93,  Edn. 8,  of his  treatise on Hindu Law that the      usage had become obsolete from time immemorial, and was      so decided by the Civil Courts. However, if this custom      or usage  is relied  on in  any given  case it  must be      conclusively and  undeniably proved.  I should  be slow      indeed  to   hold,  if  this  obsolete  custom  can  be      established,  that   all  the  duties  and  obligations      imposed on  a Hindu  son to  discharge the debts of his      father under  Mitakshara Law would apply or attach to a      daughter appointed  as a  putrika to  raise issue  to a      sonless father the attention of the High Court.      The above  case is  from the  State of Bihar itself. If the practice  of appointment  of a  putrika was in vogue, it would not have missed the attention of the High Court      It is true that some observations made in Lal Tribhawan

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Nath Singh v. Deputy Commissioner, Fyzabad & Ors.(1) support the theory  that the  institution of  putrika-putra  was  in vogue even  now. Two  of the questions involved in that case were whether  Sir Pratap  Narain Singh was the Putrika-putra of Sir  Man Singh who was the former holder of an impartible estate, known  as taluka Ajudhia and whether the practice of appointing a daughter to bear a son to a Hindu was permitted by the  Mitakshara and  was enforceable.  Stuart, A.J.C. who delivered the  leading  judgment  in  that  case  with  whom Kanhaiya Lal,  A.J.C. agreed  held that  Sri  Pratap  Narain Singh was  not the  putrika-putra of  Sir Man Singh although the practice  of appointing a daughter bear a son to a Hindu was permitted  by the  Mitakshara and was enforceable. It is seen that  the above  case had  a history.  Maharaja  Pratap Narain Singh  himself had  earlier instituted  a suit  which ultimately ended up in an appeal before the Privy Council in Maharajah 36 Pertab Narain  Singh v.  Maharanee Sudhao  Kooer(1). In that case, his  plea was  that he  (who was  also known  as Dadwa Sahib) was  the son  of a  daughter of  Maharajah Man Singh; that he  had been  treated by  Maharajah Man  Singh ’in  all respects as  his own  son’ within the meaning of clause 4 of section 22  of Act  I of 1869; that a will made by Maharajah Man Singh  on April  22, 1864  had been  revoked orally on a subsequent date  and that  he had  become  entitled  to  the estate of  Maharajah Man  Singh. The Privy Council held that the will  had been  revoked and Maharajah had died intestate and that  Maharajah Pratap  Singh was  the person  who under clause 4  of section  22 of  Act I  of 1869  was entitled to succeed to  the taluk, and that he had made out his claim to a declaratory  decree to  that  effect.  The  Privy  Council further held  that the  declaration was limited to the taluk and what passed with it but it did not affect the succession to the personal property or property not properly the parcel of the  talukdaree estate which was governed by the ordinary law of  succession. It is significant that no claim had been preferred by Maharaja Pratap Narain Singh on the ground that he was  a putrika-putra  of Maharaja of Man Singh. He merely claimed that  he was  a statutory  heir under  clause  4  of section 22  of Act I of 1869 which was passed at the request of Talukdars  including Maharajah  Man Singh  as can be seen from the  decision of  the Privy Council in Maharajah Pertab Narain Singh’s case (supra) which observed thus:-           "So matters  stood when  the Maharajah,  as one of      the leading members of the British India Association of      Talukdars, went  down to Calcutta in order to take part      in the  discussions and  negotiations which resulted in      the passing  of Act  I of  1869. This must have been in      the latter half of 1868.           Imtiaz Ali,  the vakil  concerned in  the drafting      and  preparation  of  this  Act  on  the  part  of  the      talukdars, has  sworn that clause 4 of the 22nd section      originated with  the Maharajah;  that it was opposed by      some of  the talukdars,  but finally approved of by the      Select Committee  of the Governor-General’s Legislative      Council on  the bill  and passed into law. He also says      that he  was told  by the  Maharajah that his object in      pressing this  clause was  to  provide  for  the  Dadwa      Sahib."      (NOTE :’Maharajah’  referred to  above is Maharajah Man           Singh and ’Dadwa Sahib’ is Maharajah Pratap Narain           Singh).      If the  practice of appointing a daughter to bear a son was in  vogue then  Maharajah Man  Singh need not have taken

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the trouble to 37 request the  British Government  to get Act I of 1869 passed and if Maharajah Pratap Narain Singh was a putrika-putra, he would not  have refrained  from putting  forward that  case. Moreover the  Privy Council  also clarified  the  object  of introducing clause 4 of section 22 of Act I of 1869 thus:-           "Their Lordships  are disposed  to think  that the      clause  must   be  construed   irrespectively  of   the      spiritual and  legal consequences  of an adoption under      the  Hindu   Law.  They   apprehended  that   a   Hindu      grandfather could not, in the ordinary and proper sense      of the  term adopt  his grandson  as a son. Nor do they      suppose that,  in passing  the clause  in question, the      Legislature intended  to point to the practice (almost,      if not wholly, obsolete) of constituting, in the person      of a  daughter’s son,  a "putrika-putra",  or son of an      appointed daughter. Such an act, if it can now be done,      would be  strong evidence  of an intention to bring the      grandson within  the 4th  clause, but  is not therefore      essential in  order to  do so.  Moreover, it  is to  be      observed that  the 4th,  like every other clause in the      22nd section,  applied to all the talukdars whose names      are included  in the  second  or  third  of  the  lists      prepared  under  the  Act,  whether  they  are  Hindus,      Mahommedans, or  of any  other religion;  and it is not      until all  the heirs  defined by  the ten first clauses      are exhausted  that, under  the 11th clause, the person      entitled to  succeed becomes determinable by the law of      his religion and tribe."      Triloki  Nath  who  failed  before  the  Privy  Council thereafter filed  a review petition before it. That petition was dismissed  in Pertab Narain Singh v. Subhao Kooer(1) but he was permitted if he so desired to reopen by suit in India the question whether he had been properly represented in the previous litigation in the Indian Courts. Accordingly a suit was filed  in 1879.  That ultimately  was dismissed  by  the Privy Council  in Perturbarain Singh v. Trilokinath Singh(2) holding  that  the  previous  proceedings  were  binding  on Trilokinath Singh.  Another suit which had been filed in the meanwhile in  the year  1882 for possession of the estate by Trilokinath Singh  was also  dismissed finally  by the Privy Council in Triloki Nath Singh v. Pertab Narain Singh(3) with the following observations:-           "Their  Lordships,   therefore,  merely   declared      Pratap Narain  Singh’s title to the taluks and whatever      descended under Act I of 38      1869. As  to other  property which  was not included in      that Act, Pratap Narain would not have been the heir to      the Maharaja  during the  lifetime of  the  widow.  She      would have  taken the  widow’s estate  in all  property      except that which was governed by Act 1 of 1869."      Thus  ended   the  first   series  of  litigation.  Now reverting to the case of Lal Tribhawan Nath Singh (supra) it should be  stated that the suit out of which the said appeal arose was  instituted after  the death  of  Maharaja  Pratap Narain Singh  in 1906  by Tribhawan  Nath Singh, grandson of Ramadhin, the  eldest brother  of Maharaja  Man Singh in the year 1915  for a  declaration that  he was  entitled to  the estate as  the heir  of Maharaja  Pratap Narain  Singh under clause 11 of section 22 of Act I of 1869 which provided that on the  failure of  persons referred  to in  the  first  ten clauses, the  ordinary heirs  under personal law of the last holder of the taluk was entitled to succeed. He pleaded that

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the widows  of Maharaja Pratap Narain Singh were disentitled to the  estate on  the ground  of unchastity and that he was the nearest  heir living  at that  time. The  above case was filed on  the assumption  that Maharaja Pratap Singh was the putrika-putra of  Maharaja Man Singh and hence the plaintiff being an  agnate of  Maharaja  Man  Singh  was  entitled  to succeed. (Note: The claim was almost similar to the claim in these appeals).  The defendants  in  that  suit  denied  all allegations of  the plaintiff set up in the case and pleaded that one  Dukh Haran  Nath Singh  had been adopted by one of the widows  of Maharaja Pratap Narain Singh and that even if they were  not entitled  to the estate, the estate had to go to the  family of  Narsingh Narain  Singh i.e.  the  natural family of  Maharaja Pratap  Narain Singh.  The  trial  court dismissed  the  suit.  In  the  appeal,  the  oudh  Judicial Commissioner’s Court  after specifically recording a finding that Maharaja  Pratap Narain Singh was not the putrika-putra of Maharaja Man Singh held that the practice of appointing a daughter to  bear a  son to  a Hindu  was permitted  by  the Mitakshara and was enforceable.      Reliance is  now placed before us on the above decision of the  Oudh Court to establish that even now it is possible to have  a son  in the putrika-putra form. We have carefully read the  two  judgments  of  the  two  Additional  Judicial Commissioners, Stuart  and Kanhaiya  Lal. We  feel that  the question whether  the practice  of taking  a son in putrika- putra form  was in  vogue at  the relevant time has not been considered in  detail in  the two judgments. The approach to this question  appears to  be bit  casual  even  though  the judgments on other material issues appear to be quite sound. Since they had held that no ceremony constituting the mother of Maharaja Pratap Narain Singh 39 had been  performed, they  might  not  have  gone  into  the question of  law in  depth. They just proceeded on the basis of some  ancient  texts  including  the  Mitakshara  without devoting attention  to the  practice having become obsolete. All that  Kanhaiya Lal, A.J.C. says on the above question at page 259  is "The case with which a son could be obtained by adoption has  had the  effect in course of time of rendering affiliation in  the  form  of  putrika-putra  more  or  less uncommon, but  it has  by no  means become obsolete, for the Mitakshara gives the putrika-putra the second or predominant position after  the legitimate  son and  treats him in every respect as his substitute."      The learned Additional Judicial Commissioner treats, we feel inappropriately,  the institution of an illatom son-in- law in  vogue in  Malabar or Khanadamad recognised in Punjab as but  relics of  the institution of putrika-putra. We have dealt with elsewhere in this judgment some of the text books referred to by the learned Additional Judicial Commissioner. It is to be noticed that the Oudh Court did not refer to any specific case where a claim based on the putrika-putra title had been upheld. The following remark made by Stuart, A.J.C. at page 230 is significant:-           "What reason then could he have had to be the only      person in Oudh known to history who employed a practice      by which  he set  aside his daughter to bear him a male      heir?"      We feel  for the  reasons given by us elsewhere in this judgment that  the view  expressed by  the Oudh Court on the question of  prevalence of putrika-putra form of affiliation cannot be accepted as correct.      We shall  now advert  to some  of the digests, lectures and treatises  on ’Hindu  Law’. In  Colebrooke’s  Digest  of

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Hindu Law (1874 Edition) Volume II, page 416, preface to the first edition  of which was written in 1796, it was observed thus:           "Among the twelve descriptions of some begotten in      lawful wedlock  and the rest, any others but the son of      the body  and the  son given  are forbidden in the Cali      age. Thus  the Aditya  purana, premising "the filiation      of any but a son lawfully begotten or given in adoption      by his  parents", proceeds: "These parts of ancient law      were abrogated  by wise legislators, as the cases arose      at the beginning of the Cali age........... In the like      manner  sufficient  reasons  may  be  assigned  or  the      prohibition of  appointing a  daughter  and  so  forth.      Again, by  the term  "powers" in the text of Vrihaspati      is meant, not only devotion, but the consequence of it,      namely, command over the senses. 40           Among these  twelve descriptions  of sons, we must      only now  admit the  rules concerning  a son  given  in      adoption and  one legally  begotten. The law concerning      the rest  has been  inserted, to  complete that part of      the Book,  as well  as for  the use  of those  who, not      having seen such prohibitory texts, admit the filiation      of other  sons. Thus, in the country of O’dry (O’risa),      it is  still the  practice with some people to raise up      issue on the wife of a brother."      Sir F.  W. Macnaghten  who was  a judge  of the Supreme Court of  Judicature at Fort William in Bengal writes in his book entitled  Considerations on  the Hindu  Law, as  it  is current in Bengal’ (1824 Edition) at page 129:           "Vrihaspati speaks "of the thirteen sons, who have      been enumerated  by Meru  in  their  order".  And  with      reference to this we find in the Dattaca Chandrika, ’of      these  however,  in  the  present  lage,  all  are  not      recognized.  For   a  text   recites,  ’sons   of  many      descriptions, who  were made  by  the  ancient  Saints,      cannot now  be adopted  by  men,  by  reason  of  their      deficiency of power;’ and against those, other than the      son given, being substitutes, there is a prohibition in      a passage  of law, wherein, after having been premised-      "The  adoption,   as  sons  of  these  other  than  the      legitimate son,  and the  son given,"  it is subjoined.      ’This rule,  sages pronounce  to be avoided in the Kali      age.’ "Upon  the words,  "in a passage of law" there is      the following  note; This  passage, which is frequently      cited, is  attributed to  the Aditya purana, and in its      complete state is thus, ’The adoption, as sons of those      other than  the legitimate  son,  and  son  given;  the      procreation of  issue by a brother-in-law; the assuming      the state  of an anchoret; these rules, sages pronounce      to be avoided in the Kali age.’"      Sir Thomas  Strange, a  former Chief  Justice of Madras observes in  his book  on ’Hindu  Law’ (published  in  1830) Volume I at pages 74-75 as under:           ".....  whence   the  different   sorts  of   sons      enumerated  by  different  authorities,  all  resolving      themselves,  with  Menu,  into  twelve;  that  is,  the      legally begotten, and eleven subsidiary ones,-reckoning      the son  of the  appointed daughter  (putrika-putra) as      the same  in effect  with the one legally begotten, and      therefore not to be separately accounted; all formerly,      in their turn and order, capable of succession, for the      double purpose  of obsequies,  and of  inheritance; six      (reckoning, with Menu, the legally begotton, 41

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    and the son of the appointed daughter as one), deriving      their  pretensions   from  birth,  six,  from  distinct      adoptions; the  first of  the twelve, namely, the issue      male of the body lawfully begotten, being the principal      one of  the whole  as the  son given  in  adoption  was      always  the  preferable  one,  among  those  obtainable      expressly in  this mode. And now, these two, the son by      birth, emphatically  so called, (Aurasa), and (Dattaca)      the son by adoption, meaning always the son given, are,      generally speaking,  the only  subsisting ones, allowed      to be  capable of  answering the  purpose of  sons,-the      rest, and  all concerning  them, being parts of ancient      law, understood  to have  been abrogated,  as the cases      arose, at the beginning of the present, the Cali age."      Sir Ernest  John Trevelyan,  a former Judge of the High Court of  Calcutta  in  his  book  entitled  "Hindu  Law  as administered in  British India"  (Third Edition)  states  at page 107 thus:      "In  ancient   times  the   Hindu  law  recognised  the following descriptions of sons as legitimate sons, viz.      1.   Aurasa,..............      2.   Kshetraja,...........      3.   Putrika-putra, or son of an appointed daughter. In           ancient times  a man could appoint his daughter to           raise up  issue to  him. The practice is obsolete.           Shastri Golap  Chunder Sarkar,  without giving any           instances of  its application, contends that there           is no reason why it should not be now applied.      4.   (to) 13.................           Of these  the only sons that are now recognized by      Hindu law  are the  Aurasa son  and  the  Dattaka  son.      According to  the Mithila  school a Kritrima son can be      taken in adoption. Adoption in this form is based upon,      recent works,  and is  not  referable  to  the  ancient      practice of taking Kritrima sons."      Dr. Jullius  Jolly in his Tagore Law lectures delivered in 1883 entitled "Outlines of an History of the Hindu Law of Partition, Inheritance  and Adoption"  states in his Lecture VII at page 144 thus:           "The early  history of  the Law of Adoption may be      traced in those enumerations of subsidiary or secondary      sons, which occupy such a prominent place in the Indian      Law books.  Nearly all  these substitutes for real sons      are now  long since obsolete, but they are deserving of      attention, not  only from  a  historical,  but  from  a      practical point of view, because the rules regarding 42      them, being  earlier in  time, have in a measure formed      the basis  on which adoption in the proper sense of the      term has been framed by the writers of the medieval and      modern Indian Digests."      That the  enumeration of  twelve or  thirteen and  even fifteen kinds  of sons in ancient Smritis owes its origin to the tendency  of ancient  writers to  deal with exhaustively all possible  sons a  man could  conceive of irrespective of the fact  that all  of them  might not  have received  legal sanction in  the contemporary  society is  obvious from  the inclusion in  the list  of fifteen  sons  of  a  son  called Yatrakvachanotpadita (son  produced in any other manner than the sons  previously enumerated).  Referring to  such a son, Dr. Jolly observes at page 146 thus:           "Beginning with  the son  procreated anywhere, who      comes in  as the  last of  all, I  may observe that the      only other  text in  which this kind of son is referred      to occurs  in the  Vishnusmriti; coming in, as it does,

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    at   the    end   of   the   whole   list,   the   term      Yatrakvachanotpadita seems  to  mean  produced  in  any      other manner  than the sons previously enumerated," and      may owe  its origin  to the  systematizing spirit  of a      later age  which wished to exhaust all sorts of sonship      that might occur anyhow."      After referring  to the  relevant  texts  of  Apararka,      Smriti   Chandrika,    Battaka   Chandrika,    Madhava,      Visvesvara  Bhatta,   Vivada   Chintamani,   Dayabhaga,      Dattaka Mimansa, Nirnaya Sindhu of Kamalakara Vyavahara      Mayukha of  Nilkantha and  the Dharma  Sindhu  of  Kasi      Natha,  Shri   Rajkumar  Sarvadhikari  states  in  ’the      Principles of the Hindu Law of Inheritance’ (Tagore Law      Lectures, 1880) at pages 407-409 as follows:-           "This catena  of texts  will prove to you that the      practice of  affiliating different  kinds of  sons  has      become obsolete  at the present day. The only exception      is the dattaka, or the son given by his parents.           It may be said that the Mitakshara, the Dayabhaga,      and the  Vivada Chintamani  the leading  authorities in      the Benares,  the Bengal,  and the Mithila Schools-seem      still to  countenance the  practice. That these schools      do  not  recognise  such  a  custom  is  proved  beyond      question by  the other  text-writers of  these schools,      who   have   followed   the   lead   of   Vijnanesvara,      Jimutavahana and  Vachaspati Misra.  The  authority  of      Visvesvara Bhatta,  Madhava, Kamalakara, Nanda Pandita,      and Jagannatha is quite enough to 43      show that the ancient practice of affiliating different      kinds of sons has fallen into desuetude in this age.           The dictum  of Jagannatha  of  the  Bengal  School      establishes beyond  question the fact that the practice      of affiliating  daughters in default of male issue, and      the other  forms of  adoption enumerated  by Manu,  has      become wholly obsolete in the present age.           The same  may be  said also of the Benares School,      Visvesvara Bhatta,  Madhava, Nirnaya Sindhu, and Dharma      Sindhu give  plain  and  unequivocal  answers  on  this      point-"the practice is forbidden in the present age".           The  authority  of  Visvesvara  Bhatta  is  highly      respected in  the Mithila  School. The words of Madhava      and Kamalakara  carry  universal  weight.  The  Dattaka      Mimansa and  the Dattaka  Chandrika, the  two  standard      treatises on  adoption, are the reigning authorities in      all the  schools; and  we have  seen that  both of them      strongly denounce the practice.           The Smriti  Chandrika and  the  Vyavahara  Mayukha      have forbidden  the practice  in the  Dravira  and  the      Maharashtra Schools.           It is  plain, therefore,  that the  adopted son is      the only secondary son recognised in the present age.           It may  reasonably be  asked, however, "how is it,      if  the  practice  of  affiliating  secondary  sons  be      obsolete  in   the  present   age,  that  Vijnanesvara,      Vachaspati Misra,  and Jimutavahana devote such a large      space in  their treatises  in discussing  the rights of      subsidiary sons?"           The question  may be  answered  in  the  words  of      Jagannatha: "They  did so  to complete that part of the      book. They  did so  simply to  show the  nature of  the      practice as it existed in former ages. They merely gave      a historical  review of the subject, and did not enjoin      the practice  in the  present age.  The  fact  is,  the      practice was  still lingering  in  some  parts  of  the

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    country when the authors of the Mitakshara, Chintamani,      and  the   Dayabhaga  promulgated   their   laws.   The      discussion of  the rights  of secondary sons, then was,      in the language of Jagannatha, for the benefit of those      who  "not  having  seen  the  prohibitory  texts  still      admitted the  filiation of the subsidiary sons". We can      by  no   means  admit  that  the  practice  universally      prevailed  at  the  time  of  Vijnanesvara,  Vachaspati      Misra, and Jimutavahana. 44      It was strongly denounced by Vrihaspati and others. But      it is  not improbable  that the  custom was at its last      gasp at  the time  of Vijnanesvara. Aprarka, Devandara,      and Madhava, coming after the author of the Mitakshara,      abolished it  altogether. The  custom might have partly      revived  in   some  parts  of  India  at  the  time  of      Vachaspati Misra  and Jimutavahana, and that might have      been partly  the reason  of their discussing the nature      of the  custom in  their works. Apart from the question      whether such  a  practice  prevailed  at  the  time  of      Vijnanesvara, Vachaspati Misra, and Jimutavahana, there      is not  the shadow  of a  doubt that  the  practice  is      obsolete at  the present days. Our authority for making      this statement is the opinion of Devananda, Kamalakara,      Nanda Pandita, Nilakantha and Jagannatha. The last four      authors are the most recent authorities on the subject,      and their  evidence as  to  the  non-existence  of  the      custom at  the present  day cannot be questioned. Their      words authoritatively  settle the point that the custom      has been entirely abrogated in the present age."      After quoting the text of Vrihaspati:      Anekdhaah kritah puthra rikshibhiryeapratanah      na shakyantedhuna karttoo shaktihinairidantanaih      (Sons of  many descriptions  who were  made by  ancient saints cannot  now be  adopted by  men, by  reason of  their deficiency of power).      Jogendra Smarta  Siromani observes in his Commentary on the ’Hindu Law’ (1885 edition) at page 112 thus:           "All the secondary sons, with the exception of the      Dattaka, have  not only  become obsolete, but according      to the  Shastras, they  are not  sons  at  all  in  the      present age."      At page 148 in the same book, he further observes:           "The Kritrima  form of  adoption prevails  only in      Mithila,  Nanda   Pandita  recognizes   it   as   legal      notwithstanding the text of Adita Purana which declares      that in  the present  age all  the secondary  sons have      become obsolete  with the exception of the Dattaka (see      Mimansa, section II, para 65)."      John D. Mayne, the author of ’Mayne’s Treatise on Hindu Law and Usage’ (11th Edition) states at page 114:-           "The truth  is that  there were  only two kinds of      sons, the  aurasa and  the adopted  son.  The  list  of      twelve or thirteen sons 45      was  obviously   due  to  the  systematising  habit  of      Sanskrit writers."      In ’Mulla’s Principles of Hindu Law’ (14th Edition), it is stated at page 115 thus:           "The daughter’s  son occupies  a peculiar position      in the  Hindu law.  He is  a  bhinna-gotra  sapinda  or      bandhu, but  he comes  in before parents and other more      remote gotraja  sapindas. The  reason is that according      to the old practice it was competent to a Hindu who had      no son  to appoint a daughter to raise up issue to him.

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    Such a  daughter, no  doubt was  the lawful wife of her      husband, but her son, called putrika putra, becomes the      son of her father. Such a son was equal to an aurasa or      legitimate son, and took his rank, according to several      authorities, as  the highest  among the secondary sons.      Although the practice of appointing a daughter to raise      up issue for her father became obsolete, the daughter’s      son continued  to occupy the place that was assigned to      him in the order of inheritance and even now he takes a      place practically  next after the male issue, the widow      and the  daughters being simply interposed during their      respective lives."      The portion  underlined in  the above extract is quoted with  approval   by  the  Privy  Council  in  Ghanta  Chinna Ramasubbayya &  Anr. v. Moparthi Chenchuramayya Minor & Ors. (supra).      N.  R.   Raghavachariar  on  ’Hindu  Law  Principles  & Precedents’ (5th Edition) writes at page 78:           "But with  the settlement  of the society to peace      and order  and the  recognition and enforcement by some      superior power  of the mutual rights of the people, the      idea  of   family  relationship   received   a   better      refinement and  definition, and  all the sons excepting      the Aurasa,  the Dattaka  and the  son by a permanently      and exclusively  kept concubine (Dasiputra) have become      obsolete. But  the  Putrika  putra  form  of  adoption,      perfectly natural  and consistent  with the feelings of      affection which a Hindu has towards his daughter’s son,      is still prevalent in Malabar, though in other parts of      India it has become obsolete".      We find  a detailed discussion of the aurasa and eleven or twelve  kinds of  subsidiary sons  mentioned  by  ancient smriti writers in ’History of Dharmasastra’ (Vol. III) by P. V. Kane at pages 643 to 661. At page 657, the learned author writes- 46           "In modern  times the  courts generally  recognize      only two  kinds of  sons, viz.  aurasa and dattaka, the      other kinds  of  sons  being  held  to  be  long  since      obsolete. Vide  Nagindas v.  Bachoo (43  I.A. 56  at p.      67). But two more kinds of sons have been recognized in      modern  times  in  certain  provinces  only,  viz.  the      kritrima  in   Mithila   (modern   Tirhoot)   and   the      putrikaputra among  the Nambudri  brahmanas of Malabar,      both of which will be dealt with below." At page 659 in the same book, Shri P. V. Kane says:           "The putrikaputra is no longer recognised anywhere      in  India   except  among  the  Nambudri  brahmanas  of      Malabar."      All the  above digests,  lectures and treatises support the view  that the  practice of  appointing a  daughter as a putrika and  of treating her son as putrika putra had become obsolete several centuries ago.      Whereas passages  in the  text books  referred to above point out  that the  practice of  appointing a  daughter  to raise an  issue had  become obsolete,  we find the following passage in  ’A Treatise on Hindu Law’ by Golapchandra Sarkar Sastri (Third  Edition) at pages 124-125 striking a slightly different note:-           "Putrika-putra: It  is most  natural that a person      destitude of  male  issue,  should  desire  to  give  a      grandson by  daughter the  position of  male issue. The      appointed daughter’s  son is  not regarded by Manu as a      secondary son,  but is  deemed by him as a kind of real      son. This  form of  adoption appears  to prevail in the

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    North-Western Provinces, and neighbouring district. The      Talukdars of  Oudh submitted  a petition  to Government      for  recognising  the  appointed  daughter’s  son;  and      accordingly in  the Oudh Estates Act "son of a daughter      treated in  all respects  as one’s own son" is declared      to be  heir, in  default of  male issue.  This sort  of      affiliation appears  to be most desirable and perfectly      consistent with Hindu feelings and sentiments; there is      no reason  why  it  should  not  be  held  valid,  when      actually made  by a  Hindu. The Dattaka-Mimansa appears      to have  been written  on  purpose  to  invalidate  the      affiliation of  a daughter’s  son, for  the benefit  of      agnate relations."      We do  not think  that the  above passage  in  any  way supports the case of the appellants. The author of the above book appears  to make  a special  plea for reintroducing the institution of  putrika putra.  He does  not  refer  to  any prevailing practice of affiliation of a putrika putra 47 in accordance  with Hindu  Sastras.  The  reference  to  the passing of  the Oudh  Estates Act  instead of supporting the case of  the appellants  weakens it. We have dealt with this point in detail while dealing with the case of Lal Tribhawan Nath Singh  (supra). Sir  E.  J.  Trevelyan  also  does  not approve of this statement of Golapchandra Sarkar Sastri.      Jogendra  Chunder  Ghose  in  his  book  entitled  ’The Principles of  Hindu Law’  (1903 Edition)  observes at pages 77-78:           "It remains to record the changes in the Hindu Law      brought about  by  the  ingenuity  of  the  Judges  and      lawyers of  our modern Courts. The position of the son,      grandson, and  great-grandson  remains  unchanged.  The      Putrika and  the Putrika-Putra  are not  recognized  in      spite of  all the  Rishis and all the Commentators. The      daughter takes after the widow according to the text of      Yajnavalkya, but  she is  given a life-interest against      all authority,  and for  reasons invented by the Bengal      lawyers. The  daughter’s sons  come next,  and they are      declared to  take per capita against all the Rishis and      all  the   Commentators  who   have  dealt   with  that      question."      From  the   above  passage   it  is   clear  that   the institutions  of   putrika  and  putrika-putra  have  become obsolete.  But   the  tirade   against  Bengal   lawyers  is uncharitable. They  are not  responsible for  the change. In fact it  is Hindu society which brought about such a change. We  shall   presently  deal  with  the  reasons  which  were responsible for such a change.      In the  course of the arguments learned counsel for the appellants   strongly    contended   that   there   was   no justification to  deny the right to a Hindu to take a son in the putrika  putra form  when  it  had  been  sanctioned  by Yajnavalkya  in  his  Smriti  and  by  Vijnanesvara  in  his Commentary, the  Mitakshara. It  was contended  that  merely because there  were no instances where the said practice was followed in the immediate past, it could not be held that it had ceased  to be  a part  of Hindu law. It is seen from the several texts  of commentaries  extracted in  the course  of this judgment  that the practice of taking a son in putrika- putra form had become obsolete in modern times and there are good reasons  in support  of that  view. Before dealing with such reasons,  we  should  keep  in  our  view  one  of  the statements of Vrihaspati which says thus:-      Dharmapi loka vikrikshatang      na kuryata loka virudhang

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    nacharet      (Even if a rule is propounded by the Smritis, it should not be  practised if  it is  rejected by  the people  or  is opposed to their will). A 48 rule of  interpretation lays  down that  if there is a clear usage to the contrary, the Shastra has to yield. If there is divergence of  opinion amongst  the Smritis,  a Judge should consult the  prevailing  practice  among  the  people  while deciding a  case. There  is another injunction of Vrihaspati which is very salutary:      Kewalang shastramashritya      nakartvyo hi nirnayah      yukti hine vicharetu      dharma hanih prajayate      (The decision (in a case) should not be given by merely relying on the Sastras, for in the case of a decision devoid of reasoning loss of dharma results).      We shall  now examine the reason for the abandonment of the practice  of appointing a daughter to raise a son by the Hindu society. Originally according to a vedic text cited by Lakshmidhara, a  daughter was  like a  son, and a daughter’s son was like a son’s son. Manu prescribed that he who had no son might  make his  daughter in  the  following  manner  an appointed daughter  (putrika) saying  to  her  husband  ’The (male) child born of her, shall perform my funeral rites’      Aputronena vidihina      sutang kurvit putrikam      yadapatyang bhawedasyah      tanmasyata swadhakarang      According to  Manu  ’A  son  is  even  as  one’s  self, daughter is  equal to a son, how can another (heir) take the estate, while  (such daughter who is) one’s self, lives. The daughter’s son  shall take  the whole estate of his maternal grand-father who  leaves no  male issue. Between a son’s son and the  son of a daughter, there is no difference according to law.  But if,  after a daughter has been appointed, a son be born  (to her  father) the  division (of the inheritance) must in  that (case)  be equal,  for there  is no  right  of primogeniture for a woman". Apastamba declared ’The daughter may take the inheritance of a sonless man’. Yajnavalkya said ’The son  of a  putrika is  equal to  him (the  son). Narada stated ’in  failure of  a son, the daughter succeeds because she continues the lineage just like a son’.      From the  above texts,  it is  obvious that  in ancient times, the  daughter  and  the  daughter’s  son  were  given preference over  even the widow of a person in the matter of succession. It is said that ancient 49 commentators like  Medha-thi-thi and  Haradatta had declared that the  widow was  no heir and not-withstanding some texts in her  favour, her  right was  not  fully  recognised  till Yajnavalkya stated  that the  widow  would  succeed  to  the estate of a sonless person. In Yajnavalkya Smriti, the order of succession  to a  male was  indicated  in  the  following order: (1)  son, grandson,  great grandson (2) putrika-putra (3) other  subsidiary or  secondary sons,  (4) widow and (5) daughter. After  daughter, it  was not expressly stated that daughter’s son  would succeed, but the parents were shown as the successors.  Vijnanesvara, however, interpreted the word (cha), which  meant ’also’  in (Duhitaraschaiva) in the text of Yajnavalkya  laying down  the compact  series of heirs as referring  to   daughter’s  son.   The  relevant   text   of Yajnavalkya has  been quoted above. Vijnaneswara interpreted the word ’cha’ referred to above as follows:-

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         Cha shavdadaduhitrabhave douhitre dhanbhaka yathah      vishnuh    aputhra     pouthra    santhane    douhithra      dhanmanpuyuh,   poorvekshantu    swadhaakare    pouthra      douhithraka mata"  itee. manurapi  akrita wakrita  wapi      yang vindeta  sadhrisha sutang  pouthri maathamahasthen      dadynat pindang haredhanmiti      (By the  import of the particle, ’also’, the daughter’s son succeeds  to the  estate on  failure of  daughters. Thus Vishnu says "If a man leaves neither son, nor son’s son, nor wife, nor  female issue,  the daughter’s  son shall take his wealth. For  in regard  to the  obsequies of  the ancestors, daughter’s sons  are considered  as son’s son. Manu likewise declares ’By  that  male  child,  whom  a  daughter  whether formally appointed or not shall produce from a husband of an equal class,  the maternal grandfather becomes the grandsire of a  son’s son:  let that son give the funeral oblation and possess the inheritance.) It may be noticed that but for the above interpretation  of the  word ’cha’  a  daughter’s  son would have  come in  as an  heir after  all agnates  as  the daughter’s son  is only  a cognate  (Bandhu). As a result of the above interpretation, the daughter’s son was promoted in rank next  only to  his maternal grand-mother and his mother whose interest  in the estate was only a limited one. Viewed from this  situation, the reason for abandoning the practice of appointing  a daughter as putrika and treating her son as putrika putra  becomes clear.  When a person had two or more daughters, the  appointment of  one of  them would  give her primacy over  the wife  and  the  other  daughters  (not  so appointed) and  her son  (appointed  daughter’s  son)  would succeed to the exclusion of the wife and other daughters and their sons  and also  to the  exclusion of  his own  uterine brothers (i.e.  the other  sons of  the appointed daughter). Whereas in  the case  of plurality  of sons  all sons  would succeed equally,  in the  case of appointment of a daughter, other daughters  and their sons alongwith the wife would get excluded. It is 50 probably to  prevent this  kind of  inequality  which  would arise among  the daughters and daughter’s sons, the practice of appointing  a single  daughter as  a putrika  to raise an issue must  have been  abandoned when  people were satisfied that  their   religious  feelings   were  satisfied  by  the statement  of  Manu  that  all  sons  of  daughters  whether appointed or  not had the right to offer oblations and their filial yearnings  were satisfied  by the  promotion  of  the daughter’s sons  in the order of succession next only to the son as  the wife  and daughters  had been interposed only as limited holders.      In  Ghanta  Chinna  Ramasubbayya  &  Anr.  v.  Moparthi Chenchuramayya, Minor  & Ors.  (supra),  the  Privy  Council after quoting  with approval  a passage in D.F. Mulla’s Book on Hindu  Law (p.  40, 9th Edition) where it had been stated that although  the practice  of appointing daughter to raise up issue  had become  obsolete, the daughter’s son continued to occupy the place that was assigned to him in the order of inheritance observed thus:           "The daughter’s son owes much to Vignaneshwara for      his place  in the scheme of the law of inheritance for,      in the  subjoined important  text of Yajnavalkya, which      forms  the  entire  basis  of  the  Mitakshara  law  of      succession  the   daughter’s  son   is  not   expressly      mentioned. "The  wife, and  the  daughters  also,  both      parents, brothers  likewise and their sons, cognates, a      pupil and  a fellow  student: on  failure of  the first      among these,  the next  in order  is indeed heir to the

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    estate of  one, who departed for heaven leaving no male      issue. This  rule extends  to all persons and classes,"      Colebrook, Mit.  Ch. ii s. 1, v. 2. By interpreting the      particle "also"  in the  above text, Vignaneshwara gave      the daughter’s  son a  place in the law of inheritance.      "By the  import of particle ’also’ (sects. 1 and 2) the      daughter’s son  succeeds to  the estate  on failure  of      daughters. Thus  Vishnu says  ’if a  male leave neither      son, nor  son’s son  nor (wife  nor female)  issue  the      daughter’s son  shall take  his wealth for in regard to      obsequies  daughter’s  sons  are  considered  as  son’s      sons....’", Colebrook,  Mit. Ch.  ii, s. 2, v. 6. It is      interesting to  note the remark of Mandlik on the above      interpretation by  Vignaneshwara. He  says: "After  the      word daughter’s  son  in  the  above  text  occurs  the      particle (Chaiva)  ’also’, to  give some sense to which      Vignaneshwara introduces  here, the  daughter’s son  in      conformity with  a text  of Vishnu, ’the wealth of him’      who has  neither sons  nor grandsons goes to daughter’s      son,  for   .....’,"  Compare  Manu  ch.  IX;  v.  136.      (Mandlik’s translation, p. 221). By the above ingenious      exposition,  the  famous  compiler  of  the  Mitakshara      shaped the  law into  conformity with  the needs of the      day without appearing to make any change and 51      thus gave  the daughter’s  son his present place in the      law of inheritance".      Dr. Nares Chandra Sen-Gupta in his Tagore Law Lectures, 1950 on ’Evolution of Ancient Indian Law’ also subscribes to the view  that the institutions of putrika and putrika-putra had become  obsolete several  centuries ago  and observes at pages 146-148 thus:-           "In later  Smritis, the  Putrika has  lost all her      importance.  For   already  the  daughter  as  such  is      mentioned by  them as heir, irrespective of her being a      Putrika, after  the sons and the widow. Manu too, while      he begins  by giving  the formula by which a girl could      be made a Putrika, in the immediately following slokas,      says that  a daughter  and a  daughter’s  son  as  such      inherit to a sonless person. In Yajnavalkya the Putrika      is  barely   mentioned,  but  the  inheritance  of  the      daughter after the widow is well settled.                    Obsolesence of Putrika           Now if  a daughter and her son inherit as such and      if every  daughter’s son,  and not merely the Putrika’s      son inherits and, as in Baudhayana, offers oblations to      the  maternal   grand-father  as  such,  all  practical      utility of  Putrika  disappears,  and  the  institution      naturally ceases to exist.                The obsolescence  of this  custom in the time      of Manu  and Visnu  and others appears from the absence      of further  details about  this institution  in any  of      these Smritis.           Manu,  indeed,   true  to   its  character  as  an      encyclopedaeic digest  of all  texts gives  us  several      texts  relating   to  the   Putrika,  which  belong  to      different strata of the history of law. It is singular,      however, that in his enumeration of the twelve kinds of      secondary sons  (IX, 159,160) he omits any reference to      the Putrika  or her  son. In  another place (IX, 123 et      seq.) however  he deals with the Putrika’s son, but his      treatment of  the subject  is mixed up with that of the      daughter’s son  generally. As  already pointed  out, he      lays down  the law that a Putrika is made by a contract      at the  time of  marriage (IX,  127), but,  immediately

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    after that,  he follows  with a text laying down that a      daughter’s son as such inherits to a sonless person and      offers pindas  both to  the  father  and  the  maternal      grand-father (IX,  132). This  he emphasizes  by saying      that  the   son’s  son  and  the  daughter’s  son  (not      Putrika’s son  alone) are  equal in  all respects  (IX,      133, 136,  139). In  IX, 140  he lays down the order in      which the  Putrika’s son  offers pindas to his maternal      ancestors, while in IX, 135 he says that on the Putrika      dying  sonless,  her  husband  inherits  to  her,  thus      indicating 52      that a  true husband-wife  relation for  spiritual  and      legal purposes  now exists between her and her husband.      If we remember that the present text of the Manusamhita      was essentially  a compilation  of all the texts of law      which were  current at  the date  of compilation in the      name of  Manu  and  that  accordingly  many  texts  are      incorporated in  it which  had long  become obsolete at      that date,  we shall  be able  to assess these texts at      their proper  value. It  will then  be seen  that these      texts, so  far as  the Putrika’s  son goes,  do not lay      down anything  which  was  not  already  laid  down  by      Gautama, Vasistha  and  Baudhayana.  The  other  texts,      however, which  give to the son of the daughter "akrita      va krita  va’pi"- "whether  appointed or  not" the same      status as  a Putrika’s  son, belong  to a later stratum      already indicated  in Vishnu.  These texts  practically      nullify the  provisions  about  Putrika-putra  who  had      evidently ceased  to be an institution of any practical      utility, so  much so  that he  finds no place in Manu’s      enumeration  of   the  twelve   secondary  sons.  Later      Smritis,    beyond    occasionally    mentioning    the      Putrikaputra among  the twelve  kinds of  sons  do  not      speak of them at all.           The zeal  upon the  obsolescence  of  the  Putrika      along with  the various  other kinds of secondary sons,      except  the  Dattaka,  was  set  by  the  text  of  the      Adityapurana which gives an index expurgatorius of laws      forbidden in the Kali Age and mentions among others the      recognition of sons other than Aurasa and Dattaka. This      text, as  the Smritichandrika,  Parasara,  Madhava  and      others observe,  makes the  institution of Putrika void      in the  Kali Age.  From the historical point of view we      can only look upon this as a record of the contemporary      fact, that this practice had gone out of vogue."      We are  broadly in agreement with the following passage occurring in  Mayne’s Hindu Law (1953 Edition) at pages 181- 182 which  while dealing  with the  reason for putrika-putra losing importance  and the  emergence of  the adopted son as the only other son recognised by modern law states:-           "Apart from  the exceptional  kshetraja  son,  the      prominence of  the  putrika-putra  or  the  son  of  an      appointed daughter  is an  indication of the prevailing      usage which  was all  in his  favour. His  equality  in      status with  the aurasa  son  both  for  spiritual  and      temporal purposes  was established  from  the  earliest      times and he had to offer pindas both to his father and      to his  maternal grandfather  and he took the estate of      his own  father if  he  left  no  other  son.  In  many      respects therefore,  he was like the son of two fathers      and 53      it must  have been  increasingly felt  that his  father      should not  be deprived  of the  continuance of his own

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    line. The  son of  the appointed  daughter, in offering      pindas to  his mother,  had to  recite the gotra of his      maternal grandfather,  as in the putrikakarana marriage      the gift  of the  girl was  not complete. For religious      purpose, this  anomalous  position  of  a  son  of  two      fathers must  have been found to be unsatisfactory and,      as a consequence, there was the repeated injunction not      to marry  brotherless  maidens,  which  would  make  it      difficult  to   secure  suitable   bridegrooms  if  the      institution of  putrikaputra was  insisted upon.  There      was also the injustice to his uterine brothers who were      excluded by  their appointed brother from the enjoyment      of their  maternal grandfather’s property. Besides, the      daughters other  than the  appointed daughter appear to      have come into their own by the time of the Arthasastra      of  Kautilya.   This  must  have  led  to  the  gradual      recognition as  heirs to  the maternal  grandfather  of      sons of daughters without any appointment, while at the      same time the putrikaputra’s duty to offer pinda to the      maternal ancestors  was imposed  also on the daughter’s      son. But  as the  daughter’s son was only a bhinnagotra      sapinda, it  became necessary that an adoption of a son      should be  made whenever  a continuation  of the direct      line was  desired  either  for  spiritual  or  temporal      purposes.  All   these  reasons  must  have  powerfully      operated  to   bring  the   adopted  son   into  a  new      prominence. Accordingly, Manu provided for the identity      of the  adopted son  with the  family into which he was      adopted."      Now that  the practice  of appointment of a daughter as putrika has  become obsolete,  all daughters  and their sons stand in the same position. This perhaps is the reason as to why such practice was given up.      It was  in the  alternative contended that when once it was established  that at  the time of the ancient Smritis, a Hindu had the right to appoint a daughter for the purpose of raising a  son for  him that  right would  continue to be in existence  until   it  was   taken  away   by  a   competent legislature-a law  making body as we understand today. It is also argued that the theory of a practice once recognized by law becoming  obsolete was  unknown. In support of the above submission, strong  reliance was  placed on  the decision of the High  Court of Madras in Pudiava Nadar v. Pavanasa Nadar & Ors.(1)  In that  case, the question before the High Court was  whether   the  rule  of  Hindu  law  which  excluded  a congenitally blind person from inheritance had 54 become obsolete  or not.  The case  was referred  to a  Full Bench as  there was  an earlier  ruling  of  that  Court  in Surayya v.  Subbamma(1) which  had taken  the view  that the said  rule   had  become   obsolete  and   doubts  had  been entertained about the correctness of that view. In Surayya’s case (supra)  Sadasiva Ayyar,  J. observed:  "I need not say that a  rule becomes  obsolete when  the reason  of the rule disappears through  change of circumstances and environments in the  society which  was governed  by  that  rule",  while Napier, J.  who agreed  with him said that owing to improved methods  of  education  there  was  no  reason  why  such  a disqualification should  still continue and that it was open to the  Court to  enunciate that  rule by declaring it to be obsolete. Schwabe,  C.J. who  presided over  the Full  Bench which decided Pudiava Nadar’s case (supra) after observing:           "The next  question is  whether, assuming  a blind      man’s exclusion to have been the law at the date of the      Mitakshara, it  has since  become obsolete. This, in my

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    judgment, is  a question  of fact. A law does not cease      to be  operative because  it is out of keeping with the      times. A  law does not become obsolete because it is an      anachronism or  because it is antiquated or because the      reason why  it originally  became the  law, would be no      reason for  the introduction of such law at the present      time." proceeded to state           "In considering  whether  the  custom  has  become      obsolete in  the sense  of its  having ceased to exist,      the fact  that it  is an  anachronism may  be a  proper      matter to  be taken  into consideration,  if there were      evidence both  ways,  in  weighing  that  evidence  but      otherwise it  is of  no importance. In this case, in my      judgment, the  evidence is  all in favour of the custom      having continued.  There is no oral evidence before the      Court and  no statement  of  any  text  writer  or  any      judgment to  which our  attention has  been called that      this custom  has become  obsolete in  the sense  of its      having been discontinued."      Oldfield, J.  agreed with  the  Chief  Justice.  Courts Trotter, J.,  the  third  Judge  delivered  a  separate  but concurring judgment in which he observed thus:           "To my  mind, before  allowing a mandate such as I      conceive this  to be, to be disregarded, it must either      be proved  by evidence  to be  actually disregarded  in      practice at the present time and as I have already said      there is  no such  evidence in  this case-or it must be      shown by an examination of the smritis and commentaries 55      to have  been obsolete  at the  time they were written,      and that  the authors  thereof merely  repeated parrot-      like the  words of  Manu and  the Mitakshara as a maxim      dignified by  antiquity but  not corresponding  to  the      practice obtaining at the time either of the Mitakshara      or of their own compilations. If it could be shown that      commentators  earlier  than  the  Mitakshara  had  used      language meaning  or implying  that the  rule  in  this      respect was obsolete, that might be a legitimate ground      for the  conclusion  that  the  Mitakshara  was  merely      repeating the  words of  Manu without inquiring whether      the rule  survived in  force when  the  Mitakshara  was      written. If  a commentator  later than  the  Mitakshara      used similar  language, that might lead to a legitimate      inference that,  though in  force at  the date  of  the      Mitakshara, the rule had subsequently become obsolete."      Ultimately the  Full Bench  held that  the  rule  which excluded a  congenitally blind  person from  inheritance had not been  shown to  have become  obsolete and  that  in  the twentieth century  any amendment  to that rule could only be done by  a legislature.  It is stated that the ratio of this decision has been dissented from in two subsequent decisions of the  Madras High  Court  in  Amritammal  v.  Valli  Mayil Ammal(1) and  in Kesava v. Govindan(2). We are not concerned with the said subsequent opinions. But the fact remains that both Schwabe,  C.J. and  Coutts Trotter,  J. who decided the Pudiava Nadar’s  case (supra)  did not  state that a rule of Hindu law  could not become unenforceable on the ground that it had become obsolete.      The rule  of desuetude or obsolescence has been applied by  this  Court  while  interpreting  Hindu  law  texts.  In Shiromani & Ors. v. Hem Kumar & Ors.(3) one of the questions which arose  for consideration  was whether  the practice of allowing a  larger share of property to the eldest son which was known as ’Jethansi’ or ’Jeshtbhagam’ had become obsolete

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and therefore  unenforceable. The  claim of  a party to such larger share  was negatived  by this  Court by  applying the principle that  the rule  though founded  in the Sastras had become obsolete. In doing so, this Court relied on a passage in the  Mitakshara, which  when rendered  into English  read thus:           "Unequal division  though  found  in  the  sastras      (e.g. Manu IX, 105, 112, 116, 117, Yaj. II. 114) should      not be practised because it has come to be condemned by      (or has  become hateful  to) the people, since there is      the prohibition (in Yaj. I. 156) that an 56      action, though prescribed in the sastras, should not be      performed when  it has  come to  be  condemned  by  the      people, since  such an  action does  not  lead  to  the      attainment of  Heaven. For  example, though Yaj. I. 109      prescribes the  offering of  a big  ox or  a goat  to a      learned brahmana guest, it is not now practised because      people have come to hate it; or just as, although there      is a  Vedic text  laying down  the sacrificing of a cow      ’one should  sacrifice a  barren cow  called anubandhya      for Mitra  and Varuna’,  still it  is not  done because      people condemn  it. And  it has  been said "just as the      practice of niyoga or the killing of the anubandhya cow      is not  now in  vogue, so  also division after giving a      special share (to the eldest son) does not now exist".      There  is   another  instance  where  an  ancient  rule regarding a  form of  marriage has  been held to have become obsolete by  courts. Gandhava  form  of  marriage  had  been permitted and  recognised in  ancient times. Apart from Manu and some other Smritis recognising it, we have the following sloka in Kalidasa’s Abhijnana-Sakuntalam:-      Gandhaverven vivahen      bahwayo rajarshi kanyakah      shruyante parirnitashtah      pithrivischabhinanditah      (Many daughters  of royal  sages are heard to have been married by  the ceremony  called Gandharva, and (even) their fathers have approved them).      But in  Bhaoni v.  Maharaj Singh(1)  and Lalit Mohan v. Shyamapada Das(2)  it was  held that  the Gandharva  form of marriage could not be recognized as valid marriage as it had become obsolete.      While interpreting  the ancient  texts of  Smritis  and Commentaries on  Hindu Dharmasastra,  we should bear in mind the dynamic  role played  by learned  commentators who  were like  Roman   Juris  Consults.  The  commentators  tried  to interpret the  texts so  as to bring them in conformity with the prevailing  conditions in the contemporary society. That such was  the role  of a  commentator is clear even from the Mitakshara itself at least in two places-first, on the point of allotment  of a larger share at a partition to the eldest son which is discussed above and secondly on the question of right of  inheritance of  all agnates.  The second  point is elucidated by the Privy Council 57 in the  following passage  in Atmaram  Abhimanji v.  Bajirao Janrao & Ors.(1)           "It was however, recognized in course of time that      the rule  enunciated in  the ancient  texts, giving the      right of  inheritance to  all agnates,  however remote,      and  placing  the  cognates  after  them,  was  not  in      conformity  with   the  feelings  of  the  people;  and      Vijnaneswara, when writing his commentary Mitakshara on      the Smriti  of Yajnavalkya, probably found that a usage

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    had grown  up restricting  the samanodaka relationships      to the fourteenth degree. He accordingly refrained from      endorsing the  all embracing  rule of  Yajnavalkya, and      while mentioning  it in  the  verse  dealing  with  the      subject, he  gave prominence to the restricted scope of      the word,  and supported  it by  citing Vrihad Manu. It      must  be   remembered  that   the  commentators,  while      professing to  interpret the  law as  laid down  in the      Smritis, introduced  changes in  order to bring it into      harmony with  the usage followed by the people governed      by  the  law;  and  that  it  is  the  opinion  of  the      commentators which  prevails  in  the  provinces  where      their authority  is recognized.  As  observed  by  this      Board in  Collector  of  Madura  v.  Moottoo  Ramalinga      Shathupathy (1868) 12 Moo. I.A. 397, 436, the duty of a      judge "is  not so  much to  inquire whether  a disputed      doctrine  is   fairly  deducible   from  the   earliest      authorities  as   to  ascertain  whether  it  has  been      received by  the particular  school which  governs  the      district with  which he has to deal, and has there been      sanctioned by  usage. For  under the  Hindoo system  of      law, clear  proof of  usage will  outweigh the  written      text of  law." Indeed,  the Mitakshara "subordinates in      more than one place the language of texts to custom and      approved usage":  Bhyah Ram  Singh v.  Bhyah Ugur Singh      (1870)13 Moo.  I.A. 373,  390. It  is, therefore, clear      that in  the event  of a  conflict between  the ancient      text writers  and the  commentators, the opinion of the      latter must be accepted."      The importance  of the  role  of  the  commentators  is explained by P.B. Gajendragadkar, J. (as he then was) in his article entitled  "The Historical  Background and  Theoretic basis of  Hindu Law’  in the  ’Cultural Heritage  of  India’ (Vol. II)  at page  427 published by the Ramakrishna Mission Institute of Culture thus:-           "In due  course of time, when the distance between      the letter  of the  Smritis and  the prevailing customs      threatened to  get wider,  commentators appeared on the      scene, and by adopting ingenious interpretations of the      same ancient texts, they achieved 58      the laudable  object of  bringing the provisions of the      law into line with popular usages and customs. The part      played by  Vijnanesvara  in  this  connection  deserves      special mention.  The fiction of interpretation is seen      in the  three systems of jurisprudence known to us, the      Roman, the  English, and  the Hindu  system. But as Mr.      Sankararama Sastri  points out, there is an interesting      distinction among  the three  systems  on  this  point.      Whereas the  authority  of  the  English  case  law  is      derived from  the Bench,  that of  the  Roman  Responsa      Prudentium and  the Sanskrit commentary is derived from      the Bar.  While in  England the  development of  law is      left entirely  to the  exigencies of  disputes actually      arising for  adjudication, in India and at Rome, it was      possible for  the jurist to evolve and homogeneous body      of Laws  without reference to actually contested cases.      In this  connection, it  may be interesting to refer to      the observations  of Bentham  that a legal fiction is a      "willful falsehood  having for  its object the stealing      of legislative  power by  and for hands which could not      and durst  not openly claim it-and but for the delusion      thus produced  could not exercise it. Nevertheless, the      legal fiction  of  interpretation  has  played  a  very      progressive part in the development of Hindu Law. It is

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    because this  process was  arrested during  the British      rule  in  this  country  that  Hindu  Law  came  to  be      fossilized, as judges relied mainly on the commentators      without taking  into account  the changing  customs and      usages in the Hindu community."      It was  next contended  by the  learned counsel for the appellants that  the  rule  against  the  appointment  of  a daughter by  a Hindu  to beget  an issue for himself in Kali age enunciated  by Saunaka  and others  should be treated as only directory  and if  any person  appointed a daughter for that purpose  in contravention  of that  rule still  her son would become putrika-putra of the person so appointing, with all the  privileges of  a putrika-putra.  In support  of the above contention, reliance was placed on the decision of the Privy Council  in Sri  Balusu Gurulingaswami  v. Sri  Balusu Ramalakshmamma &  Ors.(1) in which it had been held that the adoption of  an only  son though  prohibited,  having  taken place in fact was not null and void under Hindu law. In that case, the Privy Council was faced with divergent opinions of the Indian High Courts on the interpretation of the relevant texts and  was also  probably moved  by the  creation  of  a number of  titles which  had been  done on  the basis of the opinions of  some High  Courts which had taken the view that the textual prohibition was only directory and not mandatory by applying a rule of interpretation expound- 59 ed by  Jamini, the author of ’Purva Mimansa’ that all texts, supported by the assigning of a reason were to be deemed not as vidhi  but as  arthavada  or  recommendatory.  The  Privy Council  had   to  reconcile   in  that  case  a  number  of inconsistent commentaries and judicial decisions. Ultimately it upheld the adoption with the following observations which were made with a lot of reservation:-           "But what says authority? Private commentators are      at variance with one another; judicial tribunals are at      variance with  one another;  and it  has come  to this,      that in  one of  the five  great divisions of India the      practice is  established as  a legal custom, and of the      four High  Courts which  preside over  the  other  four      great divisions, two adopt one of the constructions and      two the  other. So  far as mere official authority goes      there is as much in favour of the law of free choice as      of the law of restriction. The final judicial authority      rests with  the  Queen  in  Council.  In  advising  Her      Majesty their  Lordships  have  to  weigh  the  several      judicial ulterances.  They find  three leading  ones in      favour of the restrictive construction. The earliest of      them (in  Bengal,  1868)  is  grounded  on  a  palpably      unsound principle,  and loses its weight. The second in      time (Bombay,  1875) is  grounded in part on the first,      and to that extent shares its infirmity, and in part on      texts  of   the  Mitakshara,  which  are  found  to  be      misleading. So  that it,  too, loses  its  weight.  The      third (Bengal,  1878) is  grounded partly on the first,      and to  that extent  shares its infirmity; but it rests      in great  measure on  more  solid  ground,  namely,  an      examination of  commentators and  of decided  cases. It      fails,   however,    to   meet    the   difficulty   of      distinguishing between  the injunction  not to adopt an      only son  and other  prohibitive injunctions concerning      adoptions which  are received  as only  recommendatory;      the only  discoverable grounds of distinction being the      texts of  the Mitakshara, which are misleading, and the      greater amount  of religious  peril incurred by parting      with an  only son, which is a very uncertain and unsafe

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    subject of comparison. The judicial reasoning, then, in      favour of  the restrictive  construction  is  far  from      convincing. That the earliest Madras decision rested in      part on  a misapprehension  of previous  authority  has      been pointed  out; and the Madras reports do not supply      and  close   examination  of  the  old  texts,  or  any      additional strength  to  the  reasoning  on  them.  The      Allahabad Courts have bestowed the greatest care on the      examination of those texts, and the main lines of their      arguments, not  necessarily all  the by  ways of  them,      command  their   Lordships’  assent.   Upon  their  own      examination of  the Smritis,  their Lordships find them      by 60      no   means    equally   balanced    between   the   two      constructions, but  with  a  decided  preponderance  in      favour of that which treats the disputed injunctions as      only monitory  and as  leaving  individual  freedom  of      choice. They  find themselves  able to say with as much      confidence as is consistent with the consciousness that      able and  learned men  think otherwise,  that the  High      Courts of Allahabad and Madras have rightly interpreted      the law and rightly decided the cases under appeal."           Proceeding further, the Privy Council observed:           "A Court  of Justice,  which only declares the law      and does  not make  it, cannot, as the Legislature can,      declare it  with a reservation of titles acquired under      a different  view of it. But their Lordships are placed      in the  position of being forced to differ with one set      of Courts  or the  other. And  so far  as the  fear  of      disturbance can  affect the question, if it can rightly      affect it  at all,  it inclines  in favour  of the  law      which gives  freedom of choice. People may be disturbed      at finding  themselves deprived  of a  power which they      believed themselves to possess and may want to use. But      they can  hardly be  disturbed at  being told that they      possess a power which they did not suspect and need not      exercise unless  they choose.  And so  with titles.  If      these appeals  were allowed, every adoption made in the      North West  Provinces and  in Madras under the views of      the law  as there  laid down  may be  invalidated,  and      those cases  must be  numerous. Whereas,  in Bengal and      Bombay  the  law  now  pronounced  will  only  tend  to      invalidate those titles which have been acquired by the      setting aside  of completed adoptions of only sons, and      such cases  are probably  very few. Whether they demand      statutory protection  is a  matter for the legislature,      and not for their Lordships to consider. It is a matter      of some  satisfaction to  their  Lordships  that  their      interpretation of  the law results in that course which      causes the least amount of disturbance."      In these  appeals we  are not  faced with the situation with which  the Privy  Council was  confronted. No  judicial decision of  any court  where a title had been upheld on the basis of  putrika-putra form of adoption has been brought to our notice.  If really  such a  practice was  prevailing  in recent centuries,  persons with  only daughters  and no sons being not  uncommon there  should have  arisen a  number  of cases. We may remember that the Privy Council while deciding the case  of Thakoor Jeebnath Singh (supra) observed that it was not  necessary to decide the validity of the practice of appointment of  a daughter to raise an issue ’although there certainly does not appear to have arisen 61 in modern times any instance in the courts where this custom

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has been  considered’. The  only case where such a title was set but  not established  was the case of Lal Tribhuwan Nath Singh (supra)  which has  been dealt  with separately by us. Moreover  we  are  not  concerned  in  this  case  with  the eligibility of  a person  being taken  in adoption  but  the existence of  the very  institution of putrika-putra itself. When  we   have  the  predominant  opinion  of  commentators supporting its  non-existence  in  the  last  few  centuries extending to  a period  prior to the life time of Raja Dhrub Singh and  there are  good reasons  for  the  Hindu  society abandoning it,  it would  be inappropriate  to resurrect the said practice  by placing  reliance on the above argument of the learned  counsel, which  in the circumstances appears to be highly tenuous.      At this  stage, it should be stated that the High Court after considering  in detail  the evidence on record came to the conclusion  that the  family of  Raja  Dhrub  Singh  was governed by  the Benaras  School of Hindu law and not by the Mithila School  (See para 64 of the judgment of G.N. Prasad, J. and  paras 229  and 230  of Madan  Mohan Prasad,  J.). No ground  was   made  out  by  the  learned  counsel  for  the appellants in  these appeals  to take  a different  view. We hold that the family of Raja Dhrub Singh was governed by the Benaras School  of Hindu  Law and  there is  no occasion  to apply principles  of the  Mithila School of Hindu law to the present case.      The question  whether the  family was  governed by  the Benaras School  or by  the Mithila  School  became  relevant before the  High  Court  as  an  attempt  was  made  by  the appellants herein  relying on  some commentaries  which were considered as  having local  application to  show  that  the practice of  appointment of a daughter to raise an issue was in vogue  amongst those  governed by the Mithila School. The said commentaries  on  which  reliance  was  placed  by  the appellants have  been dealt  with in  detail by  Madan Mohan Prasad, J.  in  paragraphs  204  to  215  of  his  judgment. Summarizing his  views  on  them,  Madan  Mohan  Prasad,  J. Observes at paragraphs 214 and 215 of his judgment thus:-           "214. It  will thus  appear that  of all the other      writers of  Mithila School  mentioned  earlier,  Pandit      Amarit Nath  Jha is  the only one who has unequivocally      said that during the Kali age these four kinds of sons,      viz. Aurasa,  Dattaka, Kritrima  and Putrika putra, can      be made  and recognised.  It will, however, appear that      he has  taken no  note of Saunaka and Adityapuran. Even      though he  has referred  to Nanda  Pandit and discarded      the Kshetraj  on account of the interpretation by Nanda      Pandit, he 62      has not  referred to the prohibition of Saunaka and the      acceptance  thereof  by  Nanda  Pandit  and  naturally,      therefore, he  has given  no reasons for differing with      Nanda Pandit  and the  several other  commentators  who      have  been  discussed  earlier  and  who  accepted  the      prohibition of  Saunaka so  as to  include the  Putrika      Putra.           215. The  learned author of this book is a product      of the  19th century.  Whether the  custom  of  Putrika      Putra obtain  in Mithila  is a question which cannot be      answered merely  on the  basis of  the precept  of this      writer that  even during  the Kali age such sons should      be made.  It may  be recalled that the Privy Council in      the case  of Thakur  Jeebnath said that for more than a      century not  a single  case of  adoption in the form of      Putrika Putra  was brought  to their Lordship’s notice.

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    Barring  the   few  cases  of  Narsing  Narain,  Thakur      Jeebnath and  Babui Rita Kuer no other case was brought      to our  notice even  today where  the custom of Putrika      Putra had  been alleged  or decided. Be that as it may,      nobody has  claimed any authority for Pandit Amrit Nath      Jha, except  with respect  to the  Mithila School.  His      authority will,  therefore, lend support, if at all, to      the case  of the  plaintiffs of  Title Suit  No. 25  of      1958, only  if they  are abloe  to establish  that  the      Bettiah Raj  family was  governed by the Mithila School      of Hindu  law. I  may state  here that  the  conclusion      which I  have arrived  at on  this question is that the      evidence in this case does not prove that the aforesaid      family was governed by the Mithila School; on the other      hand it  is clear  that it  was governed by the Benares      School of  Hindu Law  and in view of that the authority      of Pandit  Amrit  Nath  Jha  is  of  no  avail  to  the      plaintiffs."      We are generally in agreement with his views and we add that the material placed before us is not sufficient to hold that the  institution of  putrika-putra was  in vogue during the relevant  time even  amongst  persons  governed  by  the Mithila School.  On a consideration of the entire matter, we hold that  throughout India  including the  area governed by the Mithila School, the practice of appointing a daughter to raise an  issue (putrika-putra)  had become  obsolete by the time Raja  Dhrub Singh  was alleged to have taken Raja Jugal Kishore Singh  as putrika-putra. We, however, do not express any opinion regarding the applicability of the above view to Nambudiris of  Kerala. We  should also  record that the High Court  has   taken  the  view  on  a  careful  analysis  and consideration of  the entire  material before  it that  Raja Dhrub Singh  had in  fact not  appointed his  daughter as  a putrika to beget a putrika-putra for him. Apart from the 63 evidence led  in the  case, the  case of  the appellants has become very  weak by  the inconsistent positions taken up by the parties  from stage  to stage  in the  case  as  can  be gathered from  paragraphs 68  to 73  of the judgment of G.N. Prasad, J. We find it appropriate to quote here paragraph 73 of the judgment of G.N. Prasad, J, which reads thus:-           "73. All  these statements  reveal a strange state      of affairs.  Ambika (plaintiff  No. 1) thought the plea      with regard  to the  Kritrim form  of  adoption  to  be      correct, but  Kamleshwari (plaintiff  No. 6) thought it      to be incorrect. Ambika had no knowledge of any plea of      Dattak form  of adoption  having been  set  up  on  his      behalf. Kamleshwari not only characterised that plea to      be wrong  but even  disclaimed to  have any  such  plea      having been  taken on  his behalf.  In other words, the      plea of  Dattak form  of adoption was taken without the      knowledge or  authority of  either of  the two deposing      plaintiffs, namely  Ambika (D.W.  15)  and  Kamleshwari      (D.W. 27),  and it was evidently done at the initiative      of the Karpardaz of the legal adviser of the plaintiffs      of the  title suit  No. 25, who obviously could have no      personal  knowledge   of  the   real  facts,  although,      however, the  plea of  Dattak form of adoption was also      given up  at a  later stage.  The multiplicity  of  the      various pleas  cannot be  lost sight  of while  dealing      with  the  surviving  plea  of  Putrika-Putra  form  of      adoption, particularly  when this also was not taken in      the first instance. It seems to me that the entire case      of adoption  put forward on behalf of the plaintiffs of      Title Suit  No. 25  is the  product of  imagination  of

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    their legal  advisers, having little relation with true      facts."      After giving  our anxious  consideration to all aspects of the  case, we  hold that  the practice  of  appointing  a daughter as  a putrika  to beget  a son who would become the putrika-putra had  become obsolete long before the life time of Raja  Dhrub Singh and Raja Jugal Kishore Singh could not, therefore, in  law be  considered as  putrika-putra of  Raja Dhrub Singh.  It follows  that the  appellants who claim the estate on  the above  basis cannot  succeed. In  view of the foregoing, it  is not  necessary  for  us  to  go  into  the question whether the decisions of the Privy Council rendered prior to  the abolition  of its jurisdiction over India were binding  on  the  Indian  Courts,  which  is  precisely  the question formulated  in the  certificate issued  by the High Court.      For the  foregoing reasons,  the appeals (Civil Appeals Nos. 114-119  of 1976)  alongwith the Special Leave Petition therefore fail  and are  dismissed. In  the circumstances of the case,  we absolve  the appellants  from the liability to pay costs in all the courts. S.R.                                      Appeals dismissed. 64