kes it clear that the 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 FA Nos 130 85 86 87 131 and 134 of 1966
D V Patel section section Johar and section 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 11576
L M Singhvi Dr U P Singh and section section Jha for the Respondents in CA 114 11976
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 ie 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 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 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 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 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
vs Rajah Anand 9 Kishore Singh1 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 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 ie 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 vs Janki Kuer1 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 Raja Dhrub Singh or became his son and a member of his family by some customary mode of affiliation ie 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 ie 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 vs Maharani Janki Kuer  Ors1 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 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 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 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 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 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
vs Moparthi Chenchuramayya Minor  Ors1 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
vs 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
vs Moparthi Chenchuranayya Minors  Orssupra 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 1321 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 1321 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 ie 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 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 ie 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 ie 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 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 ie 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 XVII17
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 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 section section 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 AD as follows  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 signifiesson 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 section section 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
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 AD describes putrika putra  as follows Putrikaputrasthrithayah 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 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 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
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 vs Bhagwan Singh  Ors1 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 CJ 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 School also
The Privy Council in the appeal filed against the judgment of the Full Bench observed in Bhagwan Singh  Ors
vs Bhagwan Singh Minor1  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 vs Atchama 4 Moore s Ind Ap
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 section Siromani supports the above view
In Rajendra Narain Lahoree vs Saroda Sonduree Dabee2 Uma Sunker Moitro vs Kali Komul Mozumdar3 31 Lakshmappa vs Ramava1 Waman Raghupati Bova vs Krishnaji Kashiraj Bova2 Minakshi vs Ramanada3 Tulshi Ram vs Behari Lal4  Beni Prasad vs Hardai Bibi5 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 vs Moottoo Ramalinga Sethupathy6
In Abhiraj Kuer vs Debendra Singh7 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 of all this the Privy Council in Bhagwan Singh vs Bhagwan Singh 1899 LR 26 IA 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 vs Atchama 1846 IA 1 97 and Sir James Colvile s statement in Collector of Madura vs Moottoo Ramlinga Sethupathy 1868 12 MIA 397 437 stated thus To call it ie 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 vs Shri Balasu Ramalakshmamma 1899 LR 26 IA 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
vs Bhuttun Loll  Ors1 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 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 vs The Court of Wards1 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 vs Sri Rajah Saraneni Venkata Purushothama Jaganadha Gopala Row Bahadur  Ors1 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 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 vs Bachoo Hurkissaondas2 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 vs Puran Mal3 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 vs Court of Wards 1874 75 2 IA 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 vs Sri Raja Suraneni Venkata Purushothama Jaganadha Gopala Rao Bahadur  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 Nath Singh vs Deputy Commissioner Fyzabad  Ors1 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 AJC who delivered the leading judgment in that case with whom Kanhaiya Lal AJC 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 vs Maharanee Sudhao Kooer1
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 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 vs Subhao Kooer1 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 vs Trilokinath Singh2 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 vs Pertab Narain Singh3 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 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 ie 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 AJC 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 AJC 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 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 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
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 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 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
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
vs 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 vs Bachoo 43 IA 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 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 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 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 ie 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
vs Moparthi Chenchuramayya Minor  Ors
supra the Privy Council after quoting with approval a passage in DF 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 estate of one who departed for heaven leaving no male issue
This rule extends to all persons and classes Colebrook Mit
ii section 1 vs 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
ii section 2 vs 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 vs 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 159160 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 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 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 vs Pavanasa Nadar  Ors1 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 vs Subbamma1 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 CJ 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 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 vs Valli Mayil Ammal1 and in Kesava vs Govindan2
We are not concerned with the said subsequent opinions
But the fact remains that both Schwabe CJ 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
vs Hem Kumar  Ors3 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 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 eg Manu IX 105 112 116 117 Yaj
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 vs Maharaj Singh1 and Lalit Mohan vs Shyamapada Das2 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 vs Bajirao Janrao  Ors1 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 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 vs Moottoo Ramalinga Shathupathy 1868 12 Moo
IA 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 vs Bhyah Ugur Singh 187013 Moo
IA 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 PB 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 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 vs Sri Balusu Ramalakshmamma  Ors1 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 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 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 GN 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
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 GN Prasad J We find it appropriate to quote here paragraph 73 of the judgment of GN 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 DW 15 and Kamleshwari DW 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 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
SR Appeals dismissed


Summary:
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 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 vs The Court of Wards 1875 2 IA 163 PC quoted with approval
Sri Raja Venkata Narasimha Appa Row Bahadur vs Sri Rajesh Sraneni Venkata Purushotama Jaganadha Gopala Row Bahadur  Ors ILR Babui Rita Kuer vs Puran Mal AIR 1916 Patna 8 approved
Tribhawan Nath Singh vs Deputy Commissioner Fyzabad  Ors  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 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 ie 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
vs Moparthi Chenchuramayya 74 IA 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
vs Hem Kumar  Ors 1968 3 SCR 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 vs Sri Balusu Ramalakshmamma