SHYAM SUNDER PRASAD SINGH & ORS. v. STATE OF BIHAR & ORS (2)

Citation: [1981] 1 S.C.R. 1

Court: Supreme Court of India

Bench: P.N. BHAGWATI, A.P. SEN, E.S. VENKATARAMIAH

Case summary

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. The Privy Council also held that there was no inconsistency betweeli a custom of impartibility and the rights of females to inherit and...

Judgment text

I ' SHYAM SUNDER PRASAD SINGH & ORS. v. STATE OF BIHAR & ORS. .... , July 22, 1980 (P. N. BHAGWATI, A. P. SEN AND E. S. VENKATARAML4. H, JJ. ] Hindu Law--lnterpretation of ancient texts of Smritis and commentaries on Hi11du Law, care to be taken-"Putrika Putra" (appointed daughter's son who by agreement or adoption becomes the so11 of the father), practice of- Applicability in Benaras and Mithila schools of law during the time of Raja Dhrub Singh-Whether the said practice was permissible by th'e Mitakshara law--Rule of desuetude or obsolescence, explained. 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, Raia 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 Janld 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 Priry 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 ReYenue, Bihar, praying that the estate of Maharaja Narendrn Singh which was held by late Maharnni Janki Kuer as a limited owner hut managed by the Court of Wards be handed over to the State of Bihar by Yirtue 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 direct. ed 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 clairhed 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 / commentato. rs . 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-Mann, Yajnavalkya, (Mitakshara) (Vijnanesvara) and Apararka (Aparaditya) Baudhayana Dharmasutra, Vishnt1 Dharmasastra, Vasishtha Dharmasutra, Parasara Madhava, Smriti Chandrika cf Devannabhatta, Dattaka-Chandrika and Dattaka Mimansa by Nanda Panditaleads 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 case:s 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 J~ebnath Singh v. The Court of Wards, (1875) 2 I. A. 163 (PC), quoted with approval. Sri Raja Venkata Narasimha Appa Row Bahadur v. Sri Rajah Saraneui • Venkata Purushothama Jaganadha Gopala Row Bahadur & Ors. , I. L. R. (1908) 31 Mad 310; Babui Rita Kuer v. Puran Mal, A. I. R. 1916 Patna 8 approved. Tribhawan Nath Singh v. Deputy Commissioner, Fyzabad & Ors. , A. LR. 1918 Oudh 225, overruled. (3) All digests, lectures and treatises SU,Pport the view that the vractice 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 (I) son, grancfson, 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 iresult of this interpretatio~, 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 orie. [48H, 49A-C, E-F] , SHYAM SUNDER V. STATE OF BIHA! t 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 (no\ so appointed) :and her son (appointed daughter's son) would .. succeed to the exclusion of the w;ife and other daughters and their sons and also to the exclusion of his own uterine brothers (i. e. the other sons of the appointed daughter). Whereas in the case of plurality of sons all sons would succeed equally, in the case of :appointment of a daughter, other daughters and their sons alongwith the wife 'would . get excluded.

To prevent this kind of inequality which would arise among the daughters and daughter's sons, the practice of appointing a single daughter as a putrika to raise an issue came to be abandoned in course of time when people were satisfied that their religious feelings were satisfied by the statement of Mann 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. l{49F-H, 50A-C] >- Ghanta Chinna Ramasubbayya & Anr. v. Moparthi Chen~huramayya, 74 ~. A. 162, followed. (4) It is incorrect to suggest that the theory of "a practice once recognised 'by Jaw 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. [53. QJ -Shiromani & Ors. v. Hem Kumar & Ors.

, [1968] 3 S. C. R. 639, applied. (5) The contention that the rule against the appointment of a daughter by a Hindu to beget an issue for himself in Kali age enunciated by Saunaka :and others should be treated as only directory and if any person appointed ·a daughter for that purpose in contravention of that rule still her son would 'become "putrika-putra" of the person so appointing, with all the privileges of ·a putrika putra is highly tenuous. Where there is predominant opinion of 'Commentators supporting its non-existence in the last few centuries extending to a period, in the instant case, prior to the life of Raja Dhrub Singh and there are good reasons for the Hindu Society abandoning it, it would be inappropriate 1o resurrect the practice. [58E-F, 61A·C] Sri Ba/usu Gurulingaswami v. Sri Ba/usu Ramalakshmamma & Ors. [1899] 26 I. A. 113, dissented from.

(6) The evidence on record makes 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, tlie material on record is not sufficient to lead to the conclusion that the institution of putrika putra was in vogue during the rdevant 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 Na'inbuderies of Kerala is however 1JOt decided. [62G~H] [1981] 1 S. C.

R_ CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 114-119 of 1976. From the Judgment and Decree dated 15-12-1972 of the Patna· High Court in F. A. Nos. 130, 85, 86, 87, 131, and 134 of 1966. D. V. Patel, S. S. Johar and S. N. Mishra for the Appellants im CA Nos. 114-119 of 1976. V. M. Tarkunde, U. R. La/it, K. K. Jain, D. Goburdhan and P. P- Singh for Respondents 5-22 in CA Nos. 114-115 /76. L. M. Singhvi (Dr. ), U. P. Singh and S. S. Jha for the Respondents: .. (. in CA 114-119 /76. The Judgment of the Court was delivered by VENKATARAMIAH, J. The above six appeals by certificate and' Civil Appeals Nos. 494-496 of 1975 arise out of a common judgment dated December 15, 1972 of the High Court of Judicature at Patna passed in First Appeals Nos. 85 to 87, 130, 131 and 134 of 1966. After the above six appeals and Civil Appeals Nos. 494-496 of 1975. were heard together for sometime, we found that the above six appeals... 'i. e. Civil Appeals Nos.

114-119 of 1976 could be disposed of by a· separate judgment. We, therefore, proceeded with the consent of thelearned ·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 kitown ·as1 'Bettiah Raj' which was under them~nagement 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 j,ossession 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 ~ limited holder of the estate died on November 27, 1954. On her death'; . ff 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 cl~imants 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 ulti~ mate! y appear to be a simple one but in order to determine the said I>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 estak of 'Bettiah Raj' is situated in Champaran District of the State of Bihar. Some of its properties are situated ju 1he State of Uttar Pradesh also. The principality known as 'Bettiah .

E" 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 F. succeeded by his son, Raja Dhrub Singh in the year 1715. Raja Dhtub Singh died in 1762 without a male issue but leaving a daughter by name Benga Babui, who had married one Raghunath Singh, iBhum_ihar Brahniin 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 c· Brahmin of the Kashyap gotra, his daughter's son (Beriga Babui's son), Raja Jugal Kishore Singh entered into possession of the estate -0f '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 ff' 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 arid placed under the management of the Company's officers. During the absence of . I 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 pa'rt -0f '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 --~ ·C India . Company which was formally announced on July 24, 177l 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, 'Ind 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 :E the two other pergunnahs alone and they were also dispossessed. The entire Sirkar thus passed into the possession of the Government and '1' 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 Jetter 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, a,nd ·G 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 Simr()wn, and to Srikishen Singh and Abdhoct Singh those of Maihsi and Babra, we direct that the heirs of the · late Raja Jugal Kishore and Srikishen Singh and Abdhoot Singh H . be respectively restored to the possession and management of the above districts (with the exception of such parts thereof as may 'A 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 1be 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 Ab. dhoot 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 ~heir 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 'fnd 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 t·hus 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 ~on 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 tpe rajgy of the Sirkar of Champarun to his father, Raja Srikishen Singh, son of Prithi Singh and at the same G: , 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 > on) was decided even though the plaintiff in each of the above suits had. raised such a pl1::a. .

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 1J- - taken over by the C0urt 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 Prade~h. 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 uthers 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 fav. our of any of the claimants and on January 18, 1955 passed an 'order to the effect that the Co:urt of Wards would retain charge ·of the prop~rties 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. I 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 plairitilis 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 appeais 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 great grandson of the said Raja Jugal Kishore Singh and that plaintiff No: 1 in the suit, Ambika P_rasad 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 lmd 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 shou:ld be distributed amongst SHYAM SUNDEii. v. STATE OF BIHAR (Venkataramiah, ]. ) . 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 e>tate and no others. . i' The next suit with which we i;ire concerned in these appeals is Title Suit Nci. 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. f! enga Babui. a·nd Chinga Babui; that Benga Babui was married to Babu Raghunath · Singh of Gautam· Gotra who was, by caste a Bhumihar; that Raja · Dhrub Sing! : 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 c 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 te 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 t© 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 tit];!. 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 196L 'The plaintiffs in .. Title Suit No.

25 of 1958 were impleade sonship was modified and by the time of Manu thirteen kinds of sons were known-aurasa son who was begotten on a legally wi::dded 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 : ~~~ fefer;:rr Wit ~ra- ~;i-, 1 ~ 'lief~: ij"t:f~) '+! ~RIB 11 (He who has no son may make his daughter in the following man· ner 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 ' :! " ,lFfr 1 a-titr;i-rcef. f f~;i-, 'li~i:fi'lfT i;r;i~~a, 11 .

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" son~ including the legitimate sori 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 i£nd others as secondary sons. The relevant text reads thus : . ' af\°l:«l°&i:;fq-;:;f'R tact:. B";i": ~EfiHJ;a": I et~: ~z:r :;rra-. =a- tr! 'fmiiTITTur err 11 "' 'fi ~19Ni 'J"ff'V' 11ar f rfuf;rcrf;rt +re:ii' G~! f> U: 1~ffi'f ITT, 1! ,'llR i! fi'ffgiiifffq. ur: mr (The texts establishing the right to inherit of the subsidiary sow 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 parti· cularly with regard to the rights of woman over Stridhana, relying upon 3-646 S. C. India/80 ··~ 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 tum is quoted ·by Mitramisra (14th century). In ·the chapter entitled 'On partition of wealth received through . secondary fathers", Smriti Chandrika states : ~ f. m' is referred to throughout India with great respect-by Nilakantba, Mitramisra and others. Dattaka-Chandrika which is a recognised treatise on the Jaw 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 ""*' SHYAM SUNDER v. STATE OF BIHAR (Venkataranu'ah, J. ) 19 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 pre· venting 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 ~ons by adoption substituted for the legitimate son and appointed SHYAM SUNDER v. STATE OF BIHAR (Venkatarami'ah, J. ) 43 show that the ancient practice of affiliating different kinds of sons has fallen inJto 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, Nimaya Sindhu, and Dharma Sindhu give plain ahd 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 recogoiSed in the present age. It may reasonably be asked, however, "how is it, if the 'E practice of affiliating secondary sons be obsolete in the present age, that Vijnanesvara, Vachaspati Misra, and Jimutavahana devote such a large space in their tDeatises 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. Thie fact is, the practice was still lingering m 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 havi! ng seen fue . prohibitory texts still admitted the filiation of the subsidiary solllS". We can by no means admit that the practice universally , prevailed at the time of Vijnanesvara, Vachaspati Misra, and Jimutavahana. 4-646 S. C. Indiai/80 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 o·~ the Mitak:shara. _. abolished it altogether.

The custom mrght 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 preseut 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 ! >resent. age. " After quoting the text of Vrihaspati: arif'PITT: wcrr: ~T ~ffl! "f'l1iS'!

utrika's son offers pindas to his maternal ancestors, while in IX, 135 be says 'that on the 'Putrika dying sonless, her husband inherits to her, thus indicating 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 compilatioru 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 Putrikaputra 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, mak~ 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 theemergence of the adopted son as ,the only other son recognised by modem law states :- -G ·~ "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 a]] in· his favour. His equality in status with the aurasa son both for spiritual anct temporal purposes was established· from the earliest· times and he had· to ofj'er pinqas both to his father and to his maternal grandfather and he took the estate ofhis own father if he left no other son. In many respects therefore, he was like the son of two fathers andl it must have been increasingiy 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, th. ere 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 grand- . father'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 9f 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 contihue to be in existence until it· was taken away by a Gcompetent 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 1 of Madras in Pudiava Nadar v. Pavanasa Nadar & Ors. ( ) In that case, the question before th~ High Court was whether the rule of Hindu law which excluded a congenitally blind person from inheritance had (I) (1922) I. LR. 45 Mad. 949: become obsolete or not. The case was referred to a Full Bench as there was an earlier ruling of that Court in Surayya v. Subbamma solete and therefore unenforceable.

The claim of a party to such larger share was negatived by this Court by applying the principle that the rule though founded in the Sastras had become obsolete. In doing so, this Court relied on·a passage in the Mitakshara, which when rendered into English read thus : "Unequal division though found in the sastras (e. g. Mann IX, 105, 112, 116, 117, Yaj. II. 114) should not be practised be· cause 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 (! ) (1942) I. LR. Mad. 807 (F. B. ). (2) (1946) l. L. R. Mad. 452 (F. B. ). (3) [1968] 3 S. C. R. 639. . A 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. Gandharva form of marriage had been permitted and recognised in ancient times. Apart from Manu and some other Smritis re:cognising it, we have the following sloka ·in Kalidasa's Abhijnana-Sakuntalam: - irrrriur mr~;; or~i u:;ffer ~: ~lR'f qf~~<:H: fcrnJ~.

:"fff'l'l~: 11 (Many daughters of royal sages are heard to have been married by the ceremony called Gandharva, and (even) their fathers have approved them): 1 But in Bhaoni v. Maharaj Singh( ) and Lalit Mohan v. Shyamapada Das(2) it was held that the Gandharva form ol[ marriage could not be recognized as valid marriage as it had become obsolete. While interpreting the ancient texts of Smritis aI! ld 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 confonn~ty with the prevailing conditions in the contemporary society. ThaJt 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 oo the question of right of inheritance of all agnates.

The second point is elucidated by the Privy Council (1) (1881) l. L. R. 3 AIL 738. (2) A. I. R. 1952 Cal. 771. SHYAM SUNDER v. STATE OF llIHAR (Venkataramiah, J. ) 5 7 :in the following passage in Atmaram Abhimanji v. Bajirao Janrao . &: Ors. ( ) "It was however,. recognized in course of time that tlie 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 wilth 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 thait the commentators, while professing to interpret the law as laid down in the . Smfitis, 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 0£ the commentators which prevails in the provinces where their authority is recognized. As observed by this Board in Collector . of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 Moo. I. A. 397, 436, the duty of a judge "is not so much to inquire ·whether a disputed doctrine is fairly deducible from the earliest authorities as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For under the Hindoo system of law, clear proof of usage will outweigh the written textJ of law. " Indeed, the Mitakshara "subordinates in more than one place the language of texts ro custom and approved usage": Bhyah Ram Singh v.

Bhyah Ugur Singh (1870) 13 Moo. I. A. 373, 390. It is, therefore, clear that in the event of a confiiat between the ancient text writers and the commentators, the opinion of the latter must be accepted. " The importance of the role of the commentators is explained by P. B. Gajendragadkar, J. (as he then was) in his article entitled ""The Historical Background and Theoretic basis of Hindu Law' in the 'Cultural Heritage of India' (Vol. In 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 (I) 62 I. A. 139 at p. 143. [1981] 1 S. C. R. the laudable object of bringing the provisions of ;the law into line with popular usages and customs. The part played by 1i ,]! ," Vijnanesvara in this connection deserves special mention.

The fiction of interpretation is seen in the three systems of jurispru- . , " dence known to us, the Roman, the English, and the Hindu system. But as Mr. Sankararama Sastri points out, there is an interesting disrtinction among the three systems on this point. Whereas the author1ty orf 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 acutally arising for adjudication, in India and at Rome, it was poosible for the jurist t! o evolve and homogeneous body of Laws without reference to actually contested cases. In this connection, it may be interesting to refer to the observaMons of Bentham that a legal fiction is a "wilful falsehood having for its object rthe 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 rthe commenrtators 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 lby Saunaka and others should be treated as only directory and if any person appointed a daughter fur 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 rthe above contention, reliance was placed on the decision ofthe Privy Council in Sri Batusu 1 Guruling<1$Wami v. Sri Balusu Ramalakshmamma & Ors.

_ ( ) 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 ! aw. In thart 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 creartion 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- (! ) [1899] 26 I. A. 113. SHYAM SUNDER v. STATE OF BIHAR (VenkaJaramiah, J. ) 5 9 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 in£onsistent 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 a_nother; judicial tribunals are at variance with one another; and it has come to this, that in one of the five · great divisions of India tbe 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 f\lto 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 utterances. 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 10 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 partiing" with an only son, which is a very uncertain and unsafe subject of comparison. The judicial reasoning, then, in favour of the restricctive construction is d'ar from convincmg.

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 any close examination of the old texts, or any additional strength to the reasoning on them. The Allahabad Courts have bestowed the greatest care on tihe examination of those texts, and the main lines of their arguments, not necessarily all the by ways of them, command their Loa-dships' assent. Upon their own examination of the Smritis, their Lordships find them by 5-646 S. C. Indiai/80 no means equally balanced between the two constructions, but with a decided preponderance in favour of that which treats the dispute~ injunctions as only monitory and as foaving 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 Court,s 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 the:ir 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 nec. e5sary 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 but not e&tablished 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 ithe life time of Raja Dhrub Singh and there are good reasons ifor the Hindu society abandoning it, it would be inappropriate to wmrrect 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 aiter. considering in detail the evidence on record came to the conclusion ·thaJt the family of Raja Dhrub Singh was governed by the Benaras Sc! hool of Hindu law and not by the Mithila School (See para 64 of the judgment of G. N. Prasad, J. and paras 229 and 230 of Madan Mohan Prasad, J. ). No· ground was made out by the learned counsel' for the appellants in these appeals to take a different view. We hold that .

the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and ithere is no occasion to apply principles of the Mithila School of Hindu law to the present case. Tur 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 ithe 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 deait with in detail by Madan Mohan Prasad, J. in paragraphs 204 to 215 of his judgment. Summarising his views on them, Madan Mohan Prasad, J. obs,erves 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 puttra, 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 rea$ons 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 thi5 wridr thait 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 1ioday where the custom of Putrika Putra had been alleged or decided. Be that as it may, nobody bias claimed any authority for Pandit Arnrit Nath Jha, except with respect to the Mithila School. Hi~ 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 e~tablish 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 oli that the authority of Pandit Arnrit Nath Jha is of no avail to the plaintiffs. " We are generally in agreement with his views and we add that lthe material placed before us is not sufficient to hold t\hat 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 becom1! 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 opinio~ 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 no! appointed his daughter as a putrika to beget a putrika-putra for ! lim- Apart from the SHAYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J. ) 63 evidence led in the case, the case of the appellants has become very weak by the inconsistent positions taken up by the parties from stage to stage in the case as can be gathered from paragraphs 68 to 73 of the judgment of G. N. Prasad, J. We find it appropriate to quote here paragraph 73 of the judgment of G. N. Prasad, J, which reads thus:- "73. All these statements reveal a strange state of affairs. Ambika (plaintiff No. 1) thought the plea with regard to the Kritrim form of adoption to be correct, but Kamleshwari (plaintiff No. 6) thought it to be incorrect.

Ambika had no knowledge of any plea o4' 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 othe. r words, the plea of Dattak form of adoption was taken without the knowledge or authority of either of the two deposing plaintiffs, namely Ambika '(D. W. 15) and Kamleshwari (D. W. 27}, and it was evidently done at . the initiative of the Karpardaz of the legal adviser of the plaintiffs of the title suit No. 25, who obviously could have no personal knowledge of the real facts, although, hoJever, the plea of Dattak form of adoption was aISo 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 li1tle 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 ~he 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. Jn the circumstances of the case, we absolve the appellants· from the liability to pay costs in all the courts. S. R. Appeais dismissed;