Case: Shyam Sunder Prasad Singh &amp; Others Vs. State of Bihar &amp; Others

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 those four kinds of sons, viz. Aurasa, Dattaka, kritrim 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 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 an 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 obtains 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 Lordships 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 able 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 Benaras School of Hindu Law and in view of that the authority of Pandit Amrit Nath Jha is of no. avail to the plaintiffs."115. 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 evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G. N. Prasad, J. We find it appropriate to quote here paragraph 73 of the judgment of G. N. Prasad, J. which reads thus : -"73. All these statements reveal a strange state of affairs. Ambika (plaintiff No. 1) thought the plea with regard to, the Kritrim form of adoption to be correct but Kamleshwari (plaintiff No. 6) thought it to be incorrect. Ambika had no. knowledge of any plea of Dattaka 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 Dattaka form of adoption was taken without the knowledge or authority of either of the two deposing plaintiffs, namely Ambika (D. W. 15) and Kamleshwari (D. W. 27) and it was evidently done at the initiative of the Karpardaz of the legal adviser of the plaintiffs of title Suit N0. 25, who obviously could have no. personal knowledge of the real facts, although however, the plea of Dattaka 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."116. 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 lifetime 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]53. 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.It is true that some observations made in Lal Tribhawan Nath Singh v. Deputy Commissioner, Fyzabad AIR 1918 Oudh 225 support the theory that the institution of putrika-putra was in vogue even now. Two of the questions involved in that case were whether Sir Pratap Narain Singh was the putrika-putra of Sir Man Singh who was the former holder of an impartible estate, known as taluka Ajudhia and whether the practice of appointing a daughter to bear a son to a Hindu was permitted by the Mitakshara and was enforceable. Stuart, A. J. C. who delivered the leading judgment in that case with whom Kanhaiya Lal, A. J. C. agreed held that Sri Pratap Narain Singh was not the putrika-putra of Sir Man Singh although the practice of appointing a daughter to 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 Pertab Narain Singh v. Maharanee Sudhao Kooer (1877) 4 Ind App 228. 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 the 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 cl. 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 declamatory 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 Maharajah Man Singh.Thus ended the first series of litigation. Now reverting to the case of Lal Tribhawan Nath Singh (AIR 1918 Oudh 225) (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 heir 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 i.e. the natural family of Maharaja Pratap Narain Singh. The trial court dismissed the suit. In the appeal, the Oudh Judicial Commissioners 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.73. 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 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.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.According to Manu "A son is even as ones self, daughter is equal to a son, how can another (heir) take the estate, while (such daughter who is) ones self, lives. The daughters son shall take the whole estate of his maternal grand father who leaves no. male issue. Between a 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.98. From the above texts, it is obvious that in ancient times, the daughter and the daughters son were given preference over even the widow of a person in the matter of succession. It is said that ancient commentators like Medhathithi 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. After daughter, it was not expressly stated that daughters 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 daughters son. The relevant text of Yajnavalkya has been quoted above. Vijnanesvara interpreted the word cha referred to above as follows : -(By the import of the particle also, the daughters son succeeds to the estate on failure of daughters. Thus Vishnu says "If a man leaves neither son, nor sons son, nor (wife, nor female) issue, the daughters son shall take his wealth. For in regard to the obsequies of the ancestors, daughters sons are considered as sons sons. 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 sons 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 daughters son would have come in as an heir after all agnates as the daughters son is only a cognate (Bandhu). As a result of the above interpretation, the daughters 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 daughters son) would succeed to the exclusion of the wife and other daughters and their sons and also to the exclusion of his own uterine brothers (i. e. the other sons of the appointed daughter). Whereas in the case of plurality of sons, all sons would succeed equally, in the case of appointment of a daughter, other daughters and their sons alongwith the wife would get excluded. It is probably to prevent this kind of inequality which would arise among the daughters and daughters 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 daughters sons in the order of succession next only to the son as the wife and daughters had been interposed only as limited holders.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.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 (1875) 2 Ind App 163) (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 in modern times any instance in the courts where this custom has been considered. The only case where such a title was set up but not established was the case of Lal Tribhawan Nath Singh (AIR 1918 Oudh 225) (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, 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.113. At this stage, it should be stated that the High Court after considering in detail the evidence on record came to the conclusion that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and not by the Mithila School : See para 64 of the judgment of G. N. Prasad, J. and paras 229 and 230 of Madan Mohan Prasad, J. No. ground was made out by the learned counsel for the appellants in these appeals to take a different view. We held that the family of Raja Dhrub Singh was governed by the Benares School of Hindu Law and there is no. occasion to apply principles of the Mithila School of Hindu Law to the present case.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 evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G. N. Prasad, J.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 lifetime 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.