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

The above six appeals by certificate and Civil Appeals Nos. 494-496 of 1975, arise out of a common judgment dated December 15, 1972, of the High Court of Judicature at Patna passed in First Appeals Nos. 85 to 87, 130, 131 and 134 of 1966. After the above six appeals and Civil Appeals Nos. 494-496 of 1975 were heard together for sometime, we found that the above six appeals i.e. Civil Apps. 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.2. 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 along with 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 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 along with 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.3. It is not disputed that Raja Ugra Sen, the founder of the "Bettiah Raj" was governed by the Banaras 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.4. 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.5. 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 Champarun 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 Bonga Babui, who had married one Roghunath 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 daughters son (Bonga Babuis 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 authority and the Companys 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 Companys 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 zemindari of Majhwa and Simrown Pargunnahs which formed part of Bettiah Raj estate to Raja Jugal Kishore Singh and to leave Babra and Maihsi in possession of Srikishen and Abdhut 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 :Committee of Revenue having approved of the reinstatement of Raja Jugal Kishore, we have now granted to him the zemindari 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 Abdhut 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 maintenance 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 :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 companys dominions, that the late President and Council thought proper to divide the zemindari of Champarun, allotting to Jugal Kishore the districts of Majhwa and Simrown, and to Srikishan Singh and Abdhut Singh those of Maihsi and Babra, we direct that the heirs of the late Raja Jugal Kishore and Srikishen Singh and Abdhut Singh be respectively restored to the possession and management of the above districts (with the exception of such parts thereof as may belong to other zemindars 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 Abdhut 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. Montgomeries 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 bedevil 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 zamindarui. 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 the zamindari up to 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 1780, 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 :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 afterwards given him the tilak he established him upon the rajgy of the whole of the Champaran 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 v. Rajah Anund Kishwar Singh, (1836-37) 1 Moo Ind App 482 by its judgment dated Dec. 5 and 7, 1837. The Judicial Committee affirmed the judgment of the courts below on the sole ground of limitation.9. 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 thusDhrub Singh had no. issue. Therefore according to the provisions of the Hindu law he converted his daughters 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 Honours 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 daughters 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 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 him as his successor.11. 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 Nundun 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 Kishores 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 Nundan Singh i.e. in the Title Suit No. 139 of 1895,12. 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.13. 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 Nundun Singh v. Janki Kuer (1902) ILR 29 Cal 828 : 29 Ind App 178. The Privy Council held that the two pergunnas 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 Abdhut. They held that from the letter of Lord Cornwallis 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 Abdhut 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 lineal 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 i.e. as Putrika Putra and left the question open in the following termsremains only the issue whether Raja Jugal Kishore was adopted by his maternal grandfather Raja Dhrub Singh, or became his son and a member of his family by some customary mode of affiliation. The determination of this issue against the appellant would be fatal to his case, because in that case he would not be able to prove that he was of the same family as the late Sir Harendra. The learned Judges have not found it necessary for the decision of the present case to decide this issue, and their Lordships agree with them in thinking that it is the better course not to do so, because the same issue may hereafter arise for decision between different parties.The other suit i.e. Title Suit No. 108 of 1896 which was filed by Girja Nandan Singh was dismissed by the trial Court and the appeal filed by him before the High Court of Judicature at Fort William in Bengal (Calcutta) was also dismissed on April 14, 1889, the same day on which the High Court had disposed of the appeal in the other suit.15. A few years later, one Bishun Prakash Narain Singh, fifth in descent from Abdhut 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 suvivorship. That suit failed in all the courts including the Privy Council whose judgment is reported in Rajkumar Babu Bishun Prakash Narayan Singh v. Maharani Janki Kuer 24 Cal WN 857 : (AIR 1920 PC 34). The geneology of the family relied on in the above suit which is found at p. 858 in 24 Cal WN is given below to facilitate the understanding of the relationship amongst the parties : -16. 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 daughters son) was decided even though the plaintiff in each of the above suits had raised such a plea.17. 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 Maharaj 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 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.18. 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 along with 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.19. 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 daughters son as alleged subsequently by some others; that the last male holder of the estate was Maharaja Harendra Kishore Singh, the great 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 descendant 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 bona fide 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 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.20. 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 daughters 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 fathers 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 suit 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 :Was Raja Jugal Kishore Singh the Putrika-Putra of Raja Dhrub Singh by appointed daughter and affiliated as such as alleged by the plaintiffs in Title Suit No. 44 of 1955 and Title Suit No. 25 of 1958?(2) Was succession to the Bettiah Estate governed by the Mithila or the Banaras School of Hindu Law?(3) Was the Bettiah Estate the selfacquired 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 byAt 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 putrikka-putra of Raja Dhrub Singh; that the succession to the estate of Maharaja Harendra Kishore Singh was governed by the Banaras School of Hindu Law, that the estate having been acquired by force of arms was the selfacquired 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 the 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.22. 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 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 lifetime 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 the 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 China Ramasubbayya v. Moparthi Chenchuramayya, Minor, (74 Ind App 162) : (AIR 1947 PC 124  ) 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 putrikak-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 China Ramasubbayya v. Moparthi Chenchuramayya, Minor (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 China Ramasubbayya v. Moparthi Chenchuramayya, Minor (supra) was binding on the Indian courts after India became a republic issued a certificate in favour of the plaintiffs in Title Suit No. 25 of 1958 under Article 132 (1) of the Constitution. On the applications filed by the State of Bihar, the High Court issued a certificate under Article 133 of the Constitution certifying that the case involved substantial questions of law of general importance which in the opinion of the High Court needed to be decided by the Supreme Court. On the basis of the above certificates, plaintiffs in Title Suit No. 25 of 1958 filed Civil Appeals Nos. 114-119 of 1976 and the State of Bihar filed Civil Appeals Nos. 494-496 of 1975. After the above appeals were filed, the respondents in Civil Appeals Nos. 114-119 of 1976 who had succeeded in the High Court filed a petition before this Court to revoke the certificate issued by the High Court under Article 132 (1) of the Constitution. When the above appeals were taken up for hearing alongwith the petition for revocation of the certificate, the appellants in Civil Appeals Nos. 114-119 of 1976 filed a Special Leave Petition under Article 136 of the Constitution requesting this Court to grant them leave to canvas 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 1976 and the Special Leave Petition referred to above.

Reasoning: 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.