Holding

The practice of putrika‑putra had become obsolete long before Raja Dhrub Singh, so Raja Jugal Kishore Singh was not a putrika‑putra and the appellants could not claim the estate.

Summary

The Supreme Court examined a long‑standing dispute over the Bettiah Raj estate, focusing on whether Raja Jugal Kishore Singh could be treated as a "putrika‑putra" (a daughter’s son appointed as a son) of Raja Dhrub Singh and thus inherit the estate. The Court analyzed ancient Hindu texts, commentaries, and modern treatises, concluding that the practice of appointing a daughter to raise a son had become obsolete centuries before Raja Dhrub Singh’s time. It also held that the family was governed by the Benaras School of Mitakshara law, not the Mithila School, and that the estate could not be claimed on the basis of putrika‑putra status. Consequently, the appellants’ claim failed and the State of Bihar’s title by escheat stood. The appeals and the special leave petition were dismissed.

Issues considered

The practice of appointing a daughter as putrika and treating her son as putrika‑putra was in vogue during the lifetime of Raja Dhrub Singh.
Whether Raja Jugal Kishore Singh was a putrika‑putra of Raja Dhrub Singh.
Which school of Hindu law (Benaras or Mithila) governs the succession of the Bettiah Raj estate.
Whether the Bettiah Raj estate is a self‑acquired property or an impartible joint family estate.
Whether the rule of primogeniture applies to the succession of the estate.
Whether any of the claimants are the legal heirs of the last male holder and whether the estate vested in the State of Bihar by escheat.

Legislation cited

Act I of 1869 (pertaining to taluk estates)s. 22

Subjects

Hindu lawputrika‑putraMitaksharaBenaras schoolMithila schoolescheatsuccessionadoptiondesuetudeobsolescenceinheritance

Judgment

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. c
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 D
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 E
r 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 pub- F
lished 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. G
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 H
2 SUPREME COURT REPORTS [1981] 1 S.C.R.
/
A 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
B 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 Pandita-
c leads to the inference that the institution of "Putrika Putra" had become obsolete
and not recognised by Hindu society for several centuries prior to the time when
Smriti-Chandrika or Dattaka Chandrika were written and these two commentaries ~
belong to a period far behind the life time of Raja Dhrub Singh [32B-C]
Further, absence of 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]
D 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.
E
(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]

F
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
G 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
H 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 A
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
B
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] 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 D
- 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 E
·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
F

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 G
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] H

.l'
4 SUPREME COURT REPORTS [1981] 1 S.C.R_

A 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
B 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.
c
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.
D After the above six appeals and Civil Appeals Nos. 494-496 of 1975.
were heard together for sometime, we found that the above six appeals...
'i.e. Civil Appeals Nos. 114-119 of 1976 could be disposed of by a·
separate judgment. We, therefore, proceeded with the consent of the-
learned ·counsel for the parties to hear fully Civil Appeals Nos. 114-
119 of 1976. By this common judgment,. we propose to dispose of
E 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
F to an estate popularly kitown ·as1 'Bettiah Raj' which was under the-
m~nagement of the Court of Wards, Bihar. The last male holder of
the said estate, Maharaja Harendra Kishore Singh Bahadur died issue-
less 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. ')..-
G 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.,
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 5.

out of which the above appeals arise regarding the title to the 'Bettiah A
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 B
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
c
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 Champa-
ran 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, Ba bra
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, a
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 Com-
pany, Raja Jugal Kishore Singh offered some resistance to their ff'
6 SUPREME COURT REPORTS [1981] 1 S.C.R.

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 . I
the absence of
Raja Jugal Kishore Singh, Sri Kishen Singh and Abdhoot Singh who
were respectively sons of Prithi Singh and Satrajit Singh, younger
B 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, 177 l in
the following terms : -
"The Committee of Revenue having approved of the reinstate-
ment of Raja Jugal Kishore, we have now granted to him the
zamindari of Majhwa and Simrown pergunnahs, 'Ind have settled
his revenue as follows ............. "
D
Accordingly, Raja Jugal Kishore Singh executed a kabulyat in ac-
cordance 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, ~ -
F Mr. Montgomerie; the then Collector, initiated fresh proceedings re-
garding 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 J ugal
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
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 7

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
B
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 c
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 settle- D
ments 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 E
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 F
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
><:omprised in the said, Sirkar were attached but that Raja Srikishen
Singh continued to receive the malikana and other rights annexed to H
8 SUPREME COURT REPORTS [1981] 1 S.C.R.

A the zamindari upto 1770 and that in the following year, the settlement
1
"of the whole Sirk~r 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
..B state ~he manner in which, upon the formation of the decennial setlle-
ment in 1790, Raja Srikishen was deprived of the possession of the
pergunilahs 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
-C Kishore Singh. In the course of the written statement, his counsel
inter alia pleaded : -

"The whole of the above statement of plaintiff is both false
and fraudulent for the real fact is that the Majhwa, Simrown,
Maihsi and Babra pergunnahs forming the Champanm Sirkar were
D 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. h is neces-
sary 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 D)lrub Singh
.E aforesaid having adopted Raja Jugal Kishore Singh, the father of
my client, at the time of his birth, conducted the ceremonies of
his adoption and marriage in the usual manner, and having after-
wards given him the tilak he established him upon the rajgy of
the whole of the Chainparun Sirkar".

.F The Provincial Court dismissed the suit by its judgment dated
December 29, 1812 solely on the ground of limitaHon 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, )--
G Raja Anand Kishore Singh. The appeal was dismissed on July 9,
1817. In its elaborate judgment, the Sadar Diwani Adalat rejected
the ~ase 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 fhe document relied upon was a forgery. The above decision of
the Sadar Diwani Adalat was affirmed by the Judicial Committee of
H the Privy Council in Rajah Dundial Singh & Ors. v. Rajah Anand.
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 9

Kishore Singh(!) by its judgment dated December 5 and 7, 1837. The A
Judicial Committee affirmed the judgment of the courts below on .\he
·sole ground of limitation.

Raja Anand Kishore Singh continued. on the Gaddi and in 1837,
the hereditary title of Maharaja Bahadur was conferred upon him.
Upon his death in 1838, without any issue, he was succeeded by "his B
younger brother, Maharaja Bahadur Nawal Kishore Singh.. Maharaja
Bahadur Nawal Kishore Sillgh 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 J;taving pre-deceased him, he was succeeded c
'by Maharaja Bahadur Hareitdra 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. D
The occasion was used by Raja Deoki Nandan Singh (one of the great
grandsons of Raja Srikishen Singh) to put forward his claim to the
Bettiah Raj. On April 11, 1893, he presented a memorial to the
Lt. Governor claiming that the late Maharaja was his "Gotra Sapinda".
In the memorial, he stated ,thus :
"Raja Dhrub Singh had no issue. Therefore, according to the E
provisions of the Hindu Law he converted his daughter's son Jugal
Kishore Singh who belonged to the Gautam Gotra to Kashyap
Gotra and then adopting him as his son appointed him to be his
successor. The Maharaja Bahadur was in the 5th lineal descent
from Jugal Kishore Singh, the petitioner is in .the 4th lineal descent
from Raja Srikishen Singh............ That under the provisions of F
Kulachar law Your Honour's humble petitioner is the legal heir
and successor of the deceased Maharaja and ........... .fully capable
of managing the Raj."
A reading of the above extract of the memorial shows that the
<:ase put forward by Raja Deoki Nandan Singh was directly contrary
to the case put forward by his predecessor in the suit of1808. Whereas G
in the earlier suit, his predecessor had pleaded that Raja Jugal Kishore
'Singh was the daughter's son of Raja Dhrub Singh and was not, therefore
a member of the family of Raja Dhrub Singh, Raja Bir Kishore Singh
had pleaded that Raja Jugal Kishore Singh having been adopted by
{I) (1936-37) 1 Moo. I.A. 482. H
10 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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 .kaja Jugal Kishore Singh who belonged
to Gautam Gotra had been adopted by Raja Dhrub Singh who belonged'
to Kashyap Gotra and had ·been appointed by him as his successor.
On the death of Maharaja Harendra Kishore Singh, the estate-
B came into the possession of his senior widow, Maharani Sheo Ratna
Kuer. Within about lwo 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 Tirlioot by Ram Nandan
Singh, fifth in descent from Raja Ganga Prasad Singh (who was the-
{ ' .
plaintiff in the suit of 1808) against Maharani Sheo Ratna Kuer claim-
c ing 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 Raj~ 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
D 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
E in the Title Suit No. 139 of 1895 on the point. of Raja Jugal Kishore's
adoption by Raja Dhrub Singh and exclusion of females from succes-
sion to the_ Raj, he pleaded that he was entitled to succeed to the Raf
by the rule of propinquity, as all the branches of the family were joint
in status, there being no custom of male linear primogeniture as put
forward in the suit of Ram Nandan Singh i.e. in the Title Suit No. lW
F of 1895.
Both the suits were contested by Maharani Sheo Ratna Kucr.
Puring the pendency of the two suits, she died .and Maharani Jank!
Kuer, the second widow of Maharaja Harendra Kishore Singh was
brought on record as the defendant in both the suits.
Title Suit No. 139 of 1895 was decreed by the trial Court but
G on appeal by Maharani Janki Kuer, the said decree was set aside
and the suit was dismissed by the High Court of Judicature at Fort
William in Bengal by its judgment dated April 14, 1889. Against
the decree of the High Court, Ram Nandan Singh filed an appeal
before the Privy Council. The Privy Council affirmed the decree
of the High Court in Ram Nandan Singh v. Janki Kuer(I) The Privy
H (1) [1902] I. L. R. 29 Cal. 328-29 I. A. 178.
SHYAM SUNDER v. STATE OF BIHAR. (Venkataramiah, J.) 11

C"'ouncil held that tht: two pergunnahs Majhwa and Simrown which
were granted pursuant to the orders of Lord Cornwallis. to Raja Bir
..
A

.Kishore Singh becam~ the separate property of Raja Bir Kishore
Singh free from any coparcenery right of succes.sion of the branches
of the family then represented by Srikishen and Abdhoot. They held
· that from the letter of Lord Cornwalis dated September 22, 1790
extracted above, it was clear that Raja Jugal Kishore Singh had been B
driven out from the couutry for the acts of rebellion and that the
Government was at liberty' to divide the Sirkar into two portions
and to grant one portion to Raja Bir Kishore Singh and another portion
~·.· to Srikishen and Abdhoot in direct exercise of sovereign authority. It
further held that the grants so made by the Government proceeded
from grace and favour a.lone. It was further held that the estate c
which was granted in favour of Raja Bir Kishore Singh became his
separate and self-acquired property though with all the incidents of
the family tenure of the old estate as an impartible Raj. Consequently,
the plaintiff was not entitled to claim· it on the basis of the custom
of male linear primogeniture. The Privy Council also held that there
was no inconsistency betweeli a custom of impartibility and the rights
D
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 Counc)l, however, declined to decide the question
whether Raja Jugal Kishme 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
P~tra and left the question open in the following terms : - ·
"There rema.ins 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 wou!d 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." .G
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. H
2-646 S.C. India/80
12 SUPREME COURT REPORTS [1981] 1 S.C.R. .

A A few years 1ater, one Bishun Prakash Narain Singh, fifth in
descent from Abdhoot Singh also filed a suit in Title Suit No. 34 of
1905 in the wurt of the Subordinate Judge of Chapra, claiming title
to the estate of Maharaj::i 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
B rules of survivorship. That suit failed in all the· courts inCluding the
Privy Council whose juclgment is reported in Rajkumar Babu Bishun
Prakash Maraain Singh v. Maharani·· Janki Kuer & Ors.( 1) The
genealogy of the family relied on in the above suit which is found
at page 858 in 24 Cal. W. N. is given below to facilitate the understanding
of the relationship amongst the parties : -
Raa U grasen Singh (died l 659)
c ........
Raja Gaj SiJgh (died 1694)
I
Raja Daleep Singh Pirthi Singh .. IS1. ng h
. SatraJit
(died 1715) (dead) (dead}
I I . hun Prakash I
I
Dhr~b
Bis
Raja Singh Srikishen Singh Narayan Singh
D (died 1762) · (dead) (Plaintifi)
(Fifth in descent

I
Daughter's son ·
[ from Satrajit
Singh)
(Putrika Putra)
Raja Jugal Kishore Singh
I
Ram Nandan Girja Nandan
I
(died 1785) Singh Singh
(Defendant (Defendant
E \ No. 2) No. 3)
Raja Bir Kishore Singh (Fifth in (Fourth in
(died 1816) descent from descent from
Srikishen Singh) Srikishen Singh)
\

Maharaja Anand
I .
MaharaJa Nawal
\
Kishore Singh Kishore Singh
F (died 1838) (died 1855)
1
I~
Maharaja kajendra Mahendra
Kishore Singh Kishore Singh
(died 1883) (died before
his brother)
l
Maharaia Sir Harendra
G Kishore Singh, who died
childless on 26th March,
Jim,
leaving
(l) Rani Sheoratan Koer
· died
(2} Rani Janki Koer
Defendant No. 1
------
H (1) 24 Cal. W. N. 857
SHYAM. SUNDER v. 'STATE OF BJHAR (Venkataramiah, J.) 13
I
It should be menti0ned here that in none of the suits-Title A
Suit No. l:W of 1895, Title Suit No. 108 of 1896 and Title Suit No. 34
of 1905 refe~ed to above, the question whether Raja Jugal Kishore
Singh had become a m~mber of the family of Raja Dhrub Singh
either by virtue of adGplion or as Putrika Putra (appointed daughter's
t>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 c
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 D
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
E
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 F
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. G
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 H
SUPREME COURT REPORTS [1981] 1 S.C.R.

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
B 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
c 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
D 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
E 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
F 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.
G 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
H 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<l as
defendants in the other suits. Similarly the plaintiffs in Title Suit p
No. 5 of 1961 were impleaded as defendants in the two other suits.
The Slate of Bibar which had pr~ferred its claim on the basis of the
rule of escheat ·was also impleaded as defendant in each of the three
suit~. 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 G
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
~rose for decision before the trial court were :
(I) Was Raja Jugal Kishore Singh the Putrika-Putra of Raja
Dhrub Singh by appointed daughter and affiliated as such ·as
1~ SUPREME COURT REPORTS [t981] l S.C.R.

A alleged by the plaintiffs in Title Suit No. 44 of 1955 and'
Title Suit No. 25 of 1958?
(2) Was succession to Bettiah Estate governed try Hre .Mithila
or the Benares School of Hindu Law?
(3) Was the Bettiah Estate self-acquired or the joint property of"
Raja Jugal Kishore Singh?
B (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
16) Has the Bettiah estate vested in the State of Bihar by escheat?
c At the conclusion of the trial, the trial court held that the custom
of taking a son as Putrika-Putra had become obsolete by the time
Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore
Singh as the Putrika-Putra and, therefore, Raja Jugal Kishore Singh
was not the Putrika-putra of Raja Dhrub Singh; that the succession:
to the estate of Maharaja Harendra Kishore Singh was governed by'
D the Benares School of Hindu law; that the estate having been acquired
by force of arms was the self-acquired property of Raja Jugal Kishore
Singh; that the succession of the Bettiah estate was not governed
by the rule of primogeniture; that in view of the finding that Raja·
Jugal Kishore Singh was neither putrika·putra nor was he affiliated to'
of family of Raja Dhrub Singh by adoption in any form, the
E 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.
F It is already stated that the three First Appeals Nos. l 69 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
G 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'
H Kishore Singh as putrika-putra and so Raja Jugal Kishore Singh had
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 17

· not become a member of the family of Raja Dhrub Singh and th'at
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 B
Raja Jugal Kishore Singh had not become a member of the family
of Raja Dhrub Singh either as a putrika-putra or by adoption for
the reasons given by G, N. Prasad, J. Madan' Mohan Prasad, J.
agreed with the opinions of G. N. Prasad and A N. 'Mukherji, JJ.
that the institution of putrika-putra had become obsolete during the
life-time of Raja Dhrub Singh and that Raja Jugal Kishore Singh had
not been taken as putrika-putra or in adoption by Raja Dhrub Singh.
He however, did not agree with the opinion expressed by
A. N. Mukherji, J. which had the concurrence of G. N. Prasad. J.
that .the plaintiffs in Title. Suit No. 5. of 1.961 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 D
dismissed since all the three Judges were unanimously of opinion
that Raja Jugal Kishore Singh had not become a member of the
family of Raja Dhrub Singh· either as putrika-putra or by adoption
and all the appeals filed by the plaintiffs in Title Suit No. 5 of 1961
were allowed. In the result, Title Suit No. 5 of 1961 was decreed
as prayed for. Consequently the claim of the State of Bihar was
negatived. Aggrieved by the decree passed in the six appeais E
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. lt
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 F
the decision of the Privy Council in Ghanta Chinna Ramasubbayya &
Anr. v. Moparthi Chenchuramayya, Minor & Ors.( 1). was binding on
the courts in.India and. that it was not open to the plaintiffs in
Title Suit No. 25 of 1958 to urge that Raja Dhrub Singh could take
Raja Jugal Kishore Singh as putrika-putra. G. N. Prasad, J. with
whom ·A. N. Mukherji, J. agreed had held relying on the above G
rlecision of the Privy Council that the institution of putrika-putra
had become obsolete during the relevant period. It was contended
by the plaintiffs in Title Suit No. 25 of 1958 that the decision of
the Privy Council in Ghanta Chinna Ramasubbayya & Anr. v.
{1) 74 I. A. 162.
18 SUPREME COURT REPORTS [1981] 1 S.C.R.

A Moparthi Chenchuramayya, Minor & Ors. (supra) was not binding
on Indian courts after India became a Republic. The Division Bench
which. heard the applications for the issue of certificates being of
opinion that the case of the plaintiffs in Title Suit No. 25 of 1958
involved a substantial question of law as tQ the interpretation of
the Constitution viz. whether the decision qf the Privy Council in
B Ghanta Chinna Ramasubbayya & Anr. v. Moparthi Chenchuramayya,
Minors & Ors. (supra) was binding on the Indian Courts after India
became a Republic issued a certificate in favour of the plaintiffs in
, Title Suit No. 25 'of 1958 under Article 132(1) of the Constitution.
On the applications filed by the State of Bihar, the High Court issued
a certificate under Article 133 of the Constitution certifying that the
c 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. 41}4-496 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
D
before this Court to revoke the certificate issued by· the High Court
under Article 132(1) of the Constitution. When the above appeals
were taken up for hearing alongwith the petition for revocation of
the certificate, the appellants in Civil Appeals Nos. 114-119 of 1976
filed a Special Leave Petition under Article 136 of the Constitution
requesting this Court to grant them leave to canvass questions other
E than those relating to the interpretation of the Constitution in support
'. of their case. We have heard the parties on the above Special Leave
Petition also. As mentioned earlier, we propose to dispose of' by
this Judgment Civil Appeals· Nos. 114-119 of 1975 and the Special
Leave Petition referred to~above.

F At the outset it is to be noted that the appellants in Civil Appeals
Nos. 114-119 of 1975 can succeed only if they establish that Raja
Jugal Kishore Singh had become the son of Raja Dhrub Singh in a
manner known to law. In the instant case even though there was
some amount of ambiguity at some early stages of these proceedings
in the trial court as to the true case of the appellants, finally they
G took the position that Raja Jugal Kishore Singh had become the son
(putrika-putra) of Raja Dhrub Singh as the latter had appointed his
daughter i.e. the mother of the former as his putrika for the purpose
of begetting a son who would be his (latter's) putrika-putra. The State
of Bibar and the other contesting parties claimed. that the practice
of appointing a daughter to beget a son who would be putrika-putra
H had become obsolete by the time such appointment was . alleged to
SHYAM-SUNDER v. STATE OF 'BIHAR (Venkatara!niah, J.) 19.

.have taken place in this case; that even if such a practice was in A
vogue, Raja Dhrub Singh had in fact not made any such appointment
.and lastly the appellants who claimed on the above basis .were ·not
)r- the nearest reversioners of the last male holder. From the pleadings
relevant for the purpose of these appeals, three questions adse for
•consideration : - ·
(1) Whether the practice of appointing a daughter as putrika for B
begetting a son _who would be putrika-putra was in vogue
during the life-time of Raja Dhrub Singh?
(2) If the answer to question No. (l) is in the affirmative,
whether Raja Dhrub Singh had in fact appointed his
daughter (the mother of Raja Jugal Kishore Singh) as his
putrika? and -C
(3) If the answers to questions Nos. (I) and . (2) are in the
-
affirmative, whether the appellants were the nearest
reversioners to the last male holder-Maharaja Harendra
Kishore Singh, if he had lived till the date on which the
limited estate ceased i.e. till the death of Maharani Janki
Kuer which took place on November 27, 1954? D

From the points formulated· above, it is evident that if the
:appellants in these appeals i.e. plaintiffs in Title Suit No. 25 of 1958
-establish that Raja Jugal Kishore Singh was the putrika-putra of
Raja Dhrub Singh, the plaintiffs in Title Suit No. 5 of 1961 have to
fail but if the appellants fail to establish that fact, they fail irrespective
·of the result of the dispute between the plaintiffs in Title Suit No. 5
·Of 1961 and the State of Bihar. It is in these circumstances, we

t
proposed to dispose of these and the connected appeals in two parts.
In order to determfoe whether the practice of taking son as a
· putrika-putra was prevalent at the time when Raja Dhrub Singh is
·alleged to have taken Raja Jugal Kishore Singh as putrika"putra, we
have to examine the several texts and practices prevailing in India at
the relevant point of time. According to Yajnavalkya, the sources.
·of Hindu Dharma are those enumerated in the following text : -
"{fu <'1!fu: tl'"tf"l'T<:: li'Cl'<'ll' 'ii' fi:nprr~: I
~i:lf'ITTl'~'..''fjj: 'Pfl'ff ~-i:i:fi:i;_,<'lfl:r~ li'~~ II
G
(The sources of Dharma are described to be (1) the Vedas, (2)
the Smritis, (3) the practices of good men, (4) what is acceptable to
·one's own soul, and (5) the desire produced by a virtuous resolves) .

•• While interpreting ·the Smritis one difficulty which has to be
·.encountered is the uncertainty about their chronology. Another
.difficulty felt by many jurists while interpreting them is the existence H
-.;

20 SUPREME COURT REPORTS [1981] 1 S.C.R.

A of conflicting texts, sometimes in the same Smriti. This appears to
be on a~count of the successive changes in the views of society, which
may have taken place over several centuries. Very often the
prevailing practices and customs at a given point of time might be
quite different from ·those obtaining some centuries before that time,
Maxims which have long ceased to correspond with actual life are
B reproduced in subsequent treatises, as pointed out by John, D. Mayne,
either without comment or with a non-natural interpretation. "Extinct
usages are detailed without a suggestion that they have become extinct
from an idea that it is sacrilegious to omit anything that has once
found a place in the Holy Writ. ...... Another inference is also legitimate
that while some Smritis modified their rules to provide for later usages
c and altered conditions of society, other Smritis repeated the previous
rules which had. become obsolete, side by side with the later rules.
(See Mayne's Treatise on 'Hindu law and Usage'· (1953 Edition) PP"
20-21).
Etymologically, the word 'putrika' means a daughter (especially
a daughter appointed to raise male issue to be adopted by a father
D who has no sons), and 'putrika-putra' means a daughter's son who
by agreement or adoption becomes the son of her father (Vide Sanskrit-
English Dictionary by Sir M. Monier--Williams). According to
Hemadri, the author of Chaturvarga Chintamani (13th Century), a
'Putrika-putra' can be of four descriptions. The following passage
appearing at page 1046 in Volume II, P11rt (4) of the Collection of
E Hindu Law Texts--Yajnavalkya-Smriti with the commentaries of the
Mitakshara etc. (translated by J. R. Gharpure} refers to the four kinds
of putrika-putras :
"The putrika-putra is of four descriptions. (1) The first is
the daughter appointed to be a son. (See Visishtha XVII. 15"
F ~~fu ) (2) The next is her son. He is called "the son of an
appointed daughter", without any special contract. He is, how·
ever, to be distinguished from the next i.e. the third class. He
is not in the place of a <Son, but in the place of a son's son· and is
· a daughter's son. Accordingly he is described as a daughter's son
in the text of Sankha and Likhita : "An appointed daughter is
G like unto a son, as Prachetasa has declared : her offspring is. ter-
med a, son of an appointed daughter: he offers funeral oblations to
the maternal grand-father and to the paternal grandsire. There is
no difference between a son's son and a daughter's son in respect
of benefits conferred." (3) The third description of a son cf an
appointed daughter is the child b,orn of a daughter who was _given
H in marriage with an express stipulation as stated by Vas1shtha
r
SHYAM SUNDER .v. STATE. OF: BlHAR{Venkataramialr, J.) :2.1

XVII.17. He appertains to ·his maternal grandfather as arr· adopt· A
· ed son. (4) The fourth is a child born of a daughter who was
given in marriage with a stipulation in this form "the child who
shall be born of her, shall perlorm th·e obseqµies of. both." He
belongs as a son to both grandfathers. · But in the case where she
was in thought selected for an appointed daughter, she is so with-
out a compact, and merely by an act of the mind. {Manu Ch. B
IX 127 and 136), Hemadri quoted in Colebrocke."
·It is well known that in the ancient Hindu law, the right of a
person to inherit .the property of another depended principally on his
right to offer pinda and udaka oblations to the other:. The first person
who was so entitled was the son. As time passed the concept ·of
> sonship was modified and by the time of Manu thirteen kinds of sons
were known-aurasa son who was begotten on a legally wi::dded wife
' and twelve others who were known as secondary sons (putra prathini-
dhis) 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 E
above sloka as '<rG:<1'1:1' '+!<!'~ ~+rfi:rm ~·
(The (male) child born of her shall perform my funeral rites). · '
.I ' &,,...
<r~wn a-~r ~z:r: '!\:fllf '{,'>:!" ,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:;f q-;:;f'R tact:.B";i": ~EfiHJ;a": I
et~: ~ z:r :;rra-.=a- tr!'fm iiTITTur err 11
'fi "'
~19Ni 'J"ff'V'<fr 'f~ ;i:r;;; t;i-CT:
c,Q. ... °' ~~· '¢ c.
'fiT;ft;; ~:;rfITT ;i-rcrr~ ~: 11 H
22 SUP1U!MB COURT REPORTS [1981] 1 S.C.R.

.A areml:lt ~T<rl<=GIT ;;mr: 'l"R~<r: ~:
~~1·>11ar f<rar err ~ ~ 9;,~'r ~~r ~~ 11
~ crrillt f'f?lim: iif(Ff: l:llr~a.'!l'~:
~~T i! ~ 00 'T'fff<Ff: ~if~;;;r : 11
:a'~t;5t ~ . ~ mstrfcrit ~('[_~: 11
B
The above text is translated by S. S. Setlur in his book entitled
'A complete Collection of Hindu law Books on Inheritance' thus : -

"The legitim~te son is one procreated on the lawful wedded _
wife. Equal to him is the son of an appointed daughter. The
son of the wife is one begotten on a wife by a sagotra of her hus-
band, or by some other relative. One, secretly produced ]n the
house, is son of hidden origin. A damsel's child is one born of
an unmarried woman: he is considered as son of his. maternal
grandsire. A child, begotten on a woman whose first marriage
had not been consummated, or on one who had been deflowered
before marriage, is called the son of a twice-married woman. He
D whom his father or his mother gives for adoption shall be consi'der-
ed as a son given. A son bought is one who was sold ·by his father
and mother. A son made is one adopted by a man himself. One,
who gives himself, is self given. A child accepted, while yet in the
womb, is one received whh a bride. He wbo is taken for adoption
having been forsaken by his parents, is a deserted son."

'Aurasa' is the son procreated by a man himself on his wife mar-
ried according to sacramental forms prescribed by Sastra. 'Putrika-
putra' 1s the son of an appointed daughter. 'Kshetraja'. is. the son
begotten on the wife of a person by another person-sagotra or any
other. 'Gudhaja' is the son secretly born in a man's house when it
F is not certain who the father is. 'Kanina' is the son born on an un-
married girl in her father's house before her marriage. 'Paunarbhava'
is the son of a twice married woman. 'Dattaka' is1 the son given by his
father or mother. 'Krita' is the son bought from his father and mother
or from either of them. 'Kritrima' is the son made (adopted) by a
person himself witl1 the consent of the adoptee only. 'Svayamdatta'
is a person who gives himself to a man as his son. 'Sahodhaja' is the
son born of a woman who was pregnant at the time of his marriage.
'Apavidha' is a person who is received by another.as his so.n after he
has been abandoned by his parents or either of the~. There is one
other kind of son called 'Nishada' who is the son of a Brahmin by a
Sudra who is not referred to in the above quoted text of Y a.inavlkya.
While commenting on the above text, Vijnanesvara explains .~putrika-
H
SHYAM• SUNDER v. STATE OF BIHAR (Venkataramiah, J.) :za

putra' in the Mitakshara (composed between 1070-1100 A.D.) as A
follows:-

0~~11: ~iwr: er~: ar1"<mri:r: '.l)f<i!'!ii<u: wr: ef;;r 'fi'lWT:
ar-act...;<O""'<~~tr·i:r: 1 lf~~ crf~o: 3f'i::rrcr'fii' SRH'!fT~a-tj !fii'!fT~ iid"Tlf
amrt !ff ;;rrrffi 'l;;;f: \1:. lf '\\;ff <qcff~rfa- afl!l'Cff ~~" wr: ira ~WI'~
IDSC1f1'<trtrl1ctcr fq\:l'Cflf'l'RT~~fd", i:rrnf'Cl'!lCfTrIT <l'Tgt'lfTVCI' I ~ B
<t~: ctd"flf. '.l)f?r ~fd" ctd"flf: '!;,?!': ef~~: I
(The son of an appointed daughter (putrika-putra) is equal to him;
that is equal to the legitimate son.
The term signifies 'son of a
daughter'. Accordingly he is equal to the legitimate son as described
by Vasishtha: "This damsel, who ·has no brother, I will give unto
thee, decked with ornaments : the son who may be born of her shall
c
be my son."; Or that term may signify a daughter becoming by
special appointment a son. Still she is only similar to a legitimate
son; for she. derives more from the mother than from the father. Ac·
·cordingly she is mentioned by Vasishtha as a son, but as third in rank.
"The appointed daughter is considered to be the third class of sons.")
D
(Vide S. ·S. Setlur on 'A complete collection of Hindu Law Books 'on
Inheritance' p. 30).
Proceeding further Vijnanesvara comments on the following text
of Yajnavalkya:
~~~qt 'J;orT'lll'l If(: If<: E
Among these, the next in order is heir and presents funeral obla·
tions on failure of the preceding) as under : -
~ 1rfFFdT'fi' '!;,~rurt GR111T1Jfi' 'J;'f~ ~rn'lll'l ~~'(: ~;
~'{TS !lT~'(f <ffurotr : I
(Of these twelve sons.~bovementioned, on failure of the first, res- F
pectively, .the next in order, as enumerated, must be considered to be
the giver of the funeral oblation or performer of obsequies, and taker
of a share or successor to the effects.).
Then vijnanesvara say~ with reference to what Mann Smritis hag
stated about the right of the primary and secondary sons to succeed
G
to the estate of. a person thus :
"Mann, having promised two sets of six sons, declart's the
first six to be heirs and kinsmen; and the last to be not heirs, but
kinsmen:
"the true legitimate i1ssue, the son of a wife, a son
~iven, and one made by adoption, a son of concealed origin, and ff
I
. 24 SUPREME COURT REPORTS [1981] 1 S.C.R•

A r· one rejected are the six heirs and kinsh:ien. The son of an un-
married woman, the son of a pregnant brfde, a son bought, a
son by a_ twice_-marri~_d woman, a son. self-given, and a son by
a .s.udra wopiari, are six not heirs but kinsmen." ·
Thereafter he deals with the right of a woman to inherit the estate·
of one, ;-vJ:io leav<rs no male issue. He says ~'that sons,. principal and
B secondary, take the heritage, has been shown. The order of succession
among all on failure of them, is next declared." And then quotes the
following text of Yajnavalkya :- ·
rwrr ~fij'mcr fcra<:r ma~cr~r 1
Cf(\ WfT lflq~T <1'1!: fl!l~l:l' '1'~f<:UT: 11
c ~'llr<l ~~ 'q.:f'l'lT1.J5Hffir<:: I
~l:T~ ~'!q\'l:l' '1'cf<luf!5'Cfl:i fcrfcr: 11
(The wife, and the daughters also, both parents, brothers likewise,
and their sons, gentiles, cognates, a pupil, and a fellow student : on
failure of the first among these, the next in order is indeed heir to the
D estate of one who departed for heaven leaving no male issue. This
rule extends to all classes).
Commenting on the above text, Vijnanesvara says :
~]'UJ<J?T G'Tl:l' 11 ~Tfu f~!ffil\ a-Qi+f'llr<l ri°qt G'Tl:l'TG?fi'l'
"3"'6tffi I ~crffilT [TG'l/1' '!ITT l:l'l.'i:f ;r m.-cr ~T'Cf'I,q; Cfl.'l:l'l'I,i;'!\=lf l.'CfiffiR:'l'
~ ~ 'q.:f'l'lT'!!, ~·nmrr iJ;qT '1C'll'TifH1•Ft"lir~r;:rt i:ri;~ ~~
~l.'l:l'T'll~ ~ ~ITT) 'q.:f'l'lrflffcr l.'l'~CT:
(He, who has no son of any of the twelve descriptions above-
stated kone having 'no male issu'e•. Of a man, thus leaving no male
progeny, and departing for another world, the heir, or successor, is
that person, among such as have been here enumerated (the wife and
the rest) who is next in order, on failure of the first mentioned res•
. pectively. Such is the construction of the sentence).
From the foregoing, it is obvious that in the course of the pas-
. sages extracted ·above, Vijnanesvara was only co=enting upon the
relevant text of Yajnavalkya which Iaid down the practice prevalent · \ ....
G in ancient times. He also notices that according to Manu only six ofl
the twelve sons were entitled to succeed to the estate and the remain·
, ing six were not heirs but kinsmen. We have not been shown any
Commentary of Vijnanesvara that at the time when the Mitakshara
was written, all the twelve kinds of sons described by Yajnavalkya
were in fact entitled to succeed to the estate of the deceased and that
·ff · the wife of the deceased succeeded to his estate only when none of the
\

'
'\
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.)

twelve kinds of sons was existing. Certainly that has. not been the
practice for several centuries. In the absence of a son, grandson or
~eat grandson (aurasa or adopted) the wife succeeds to the estate of
her husband. The other kinds of sons including putrika-putra are not
2S

A

·shown to have preceded the wife.
Baudhayana who belonged to the Krishna Yajurveda School and
who composed the Baudhayana Dharma Sutra long prior to the Mitak~ 8
.ghara refers to the twelve kinds of sons and divides them into two
·classes-one being entitled to share the inheritance and the other to
.be members ?f the family only:
a:fmi ~T~ iffiR a:~~"f
lTi'E;;f 'lT~ '<£ f~~~T;;r: srqeicf II ~c
"'
<fiT;:f\;:r '<£ tl'![lt '<£ "fi'ffi q"f;:r'lf<f ci-~T l
~'!'~~ fifl!fT<:' '<£ m·•H'O!: sr<i~i? II.
In regard to this they quote also (the following verses):-
They call the legitimate son.• the son of an appointed daughter, D
the son begotten on a wife, the adopted son, the son made, the son
.uom secretly, and the son .cast off, entitled to share the inheritance.
The spinster's son, the son taken with a bride, the son bought,
the son of a twice-married woman, the self-given son, and the Nishada,_.
·{\these) they call members of (their father's family) (Vide West &
Subler on 'Hindu Law-Inheritance' at p. 317}. E
That some of the secondary sons were not entitled to succeed
.according to. Baudhayana may be noticed here and this statement does
not agree with the Mitakshara's Commentary that all. the principal and
'.Secondary sons succeed before the wife. This shows that.the statement
in the Mitakshara refers partly to historical facts and partly .to existing
F
facts.
Vishnu Dharmasastra which according to Dr. Jolly belongs to the
third century AD.. describes 'putrika-putra' as follows: -
ef<ir'fi'T~~q'flr:
~r: ~: ti' ii' ');.i'l'T ~Rfo in fqm G
~ m ');,fu<liT
efwi;rm~rssrfcmf<rarfCT 'm'q:f~'A-r efri'l' 11
(The third is the son of an appointed daughter. She is called an
appointed daughter, who is given away by her father with the words,
'The son whom she bears, be mine'. A girl who has no brother is H
'26 .SUPREME COURT REPORTS

considered an appointed daughter, though she be not given away ac-
cording to the rule of ari appointed daughter) (Vide West & Buhler
[1981] 1 S.C.R.
'
on 'Hindu Law-Inheritance' at p. 338).
In this text what needs to be noticed is that a brotherless daughter
becomes a putrika even if she is not given according to the prescribed
procedure.
B
Vasishtha who according to Dr. Jolly must have composed his
Dh.arma Sutra several centuries before Christ describes 'putrika' as
follows:__,
ClCl°'P:r '!fuotir I fcr.ifr11'(f I 3l''m0,;'ii'T '(~: f~ilfa
c i:rcfrq"r;f q~fa' ~<fl\ I
ar-mq_'fii'· SRIBTTPi ii<i ~~rii:., I
amt ll"T ;;rr11(f ~: ~ ii '!~T 'lT<fRfu 11
(The third is an appointed daughter. It is known that "the girl
who has no brother comes back to the males of her, own family, to her
father and the rest, returning she becomes their son." Here follows
the verse to be spoken by the father when appointing a daughter, "I
shall give thee to the husband, a brotherless damsel, decked with
ornaments; the son whom she may bear, he be my son." (Vide West
& Buhler on 'Hindu Law-Inheritance' at p. 331).

In the above text "the girl who has no brother comes back to·
E the males of her own family, to her father and the rest, returning she'
b~.comes their son" apparently refers to the following Shloka in Rig-
Veda :-
ar~ffi<f 'l' ~ i:t[cr srcrf:tft
"'
<TCrf'!Jflr<r m !:1 "TT'ffli, '

F ;;rr~cr WT \3111ITT wrrm
~QT ~~Cf fef<:Urm arc~:
~Rig Veda, I, Sukta 124. Stanza 7.
(She goes to the West, as (a woman who has) no brother (repairs)
to her male (relatives), and as one ascending the hall (of justice) for
G the recovery of property. (She mounts in the sky to claim her lustre)
and like a wife desirous. to please her husband, Ushas puts on becom-
ing attire, and smiling as it were, displays her charms).

Apararka or Aparaditya was a king who ruled in the twelfth cen-
tury: His commentary on the Yajnavalkya Smriti is considered to be
H of paramount authority and is referred to with respect in many of the
SHYAM SUNDER v. STATE OF BJJIAR (Venkataramz"ah, J.) 27

later Digests. After referring to the primary and secondary sons enu· A
merated by Yajnavalkya, Apararka observes:-
~>rfuf;rcrf;rt +re:ii' G~!f> U:<f 'fif<1°1{,i1" 'AlW:
31<'1: <!;'I" 'fi<TI°, f<i<i\1\=c:r ~~'f'!'\.fcl1 111i";r~;;fflil\
''.G~'\'mcRQT a"
"' --
m;;
ef~: " ~fa I
(Of the different kinds of substitutes for son, only the Dattaka is B
valid during the Kaliyuga. Therefore Shaunaka says: "the acceptance
of sons other than Datta and Aurasa" is prohibited in the Kaliyuga.)
(Vide Ghose on 'Hindu Law' Vol. II at· p. 254).
The verse of Shaunaka quoted by Apararka is found in the verses
on Kalivarjya collected and printed at page 1013 of Vol. III of P. V.
Kane's History of Dharmasastra. The 17th verse reads "G.'ffi'Rij-ITTqt <:r c
J. '.!\:!~ 'ifu;r6:" {The acceptance of. sons other than datta or aurasa) i;
one of the acts not to be done in Kaliyuga.
We find the following text iri 'Parasara Madhava' which is believ·
ed to have been written by Madhavacharya, the prime minister of the
Vijayanagara kings in or about the year 1350: D
. efcrorifuf<:'f;TT;;f ll"'t!JfCTITTort 'it'fl>1~ffi'f<f
i;rf<:FHG'fi"Tf"f <t"T<f!l'TR "'~m;:cref<r!fl:TTfUr '
ip<'fr '1!.lf ;[qt ~ q f<:il~O(l?OJ ~i:t;Clf"~~
~ra,.1.
" qi~ .... .... qf.
<:cd\<tkl~~ ~;r "(l;f6: I E
, 'if<t~ lj;d'i~ f~: <fT;:fSR'~""lll1J6: 11
, i'l>ITT, 1!,'llR<l°lfT'l !:Tlfi<T., <f>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 F
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
.,, ··~ G
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 H
3-646 S.C. India/80
··~

28 SUPREME .COURT REPORTS [1981] 1 S.C.R.

A 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 :
B
~ f.m'<ra~ITTU!t mt .
l!;lfTrct'~ ~~'!' qfU!~: I 'li<iT ~
~~ "GnTU'ra~qt ~ ~ ~:" 1 ~'T aif- m-
~~ ~T~'+ll?n<1ilctf ~qt ~'!' ~ f.l<ff<11rra, 1 ~!ti'T-
ifi (Oi'"illlflfT~<f <fFflfT~ f.Mf'('Cflf' I GnT~T~'TfuoiirlfT: I
~

~. '<!" ifimlfl'mq;,q-q-R;ii:r~ l;'ffi!fi' t;<r ir1urq;,c;it '+19fa ;wi:r
c
~cTlfll I
(The secondary sons thus enumerated had all been recognised as
sons in former ages; but, in the Kali age, adopted son alone is recog-
nized. By the text : "None is to' be taken as a son except a son of
the body or one who is adopted." the learned have, in the early period .
D of the Kali age, prohibited the recognition of any other son than the
legitimate and. the adopted, with the view of maintaining virtue in
the world.
The appointment of a daughter to raise up a son to her ·father
must also be considered by the same text to be prohibited in the
Kali age, such a son not being either one of the body or adopted.
E
The conclusion hence is that, in the Kali age, in default of a legitimate
son or grandson, the adopted son alone and none else is recognised
a& a subsidiary son. (Vide Setlur on 'Hindu Law Books on Inheritance'
at page 272).
It is no doubt true that in some earlier decisions to which a
F 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
G 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.
H 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 A
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 B
<laughter."
9. Of _these however in the present age, all are not recognised.
For a text recites : - "Sons of many descriptions who were made
by ancient saints cannot now be adopted by men,-by reason of
their deficiency of power;" and against 'those other than the SOI}
given, being substitutes, there is a prohibition in a passage of law
c
wherein after having been promised,- "The adoption, as sons
of those other than the legitimate son. and son given,"-it is sub-
joined,- "These rules sages pronounce to be avoided in the
Kali age."
(See 'Hindu Law Books' edited by. Whitley-Stokes in 1865 at page D
630).
Dattaka Mimansa written by' Nanda Pandita between 1595-1630
states '.
"64. "Sons of many descriptions who were made by ancient
saints cannot now be adopted by men by reason, of their deficiency E'
of power etc.", on account of this text of Vrihaspathi and because,

,_ in this passage ("There is no adoption, as sons, of those other than
the son given and the legitimate son etc.") other sons, are forbidden
by Saunaka, in the Kali or present age, amongst the sons however
(who have been mentioned) the son given, and the legitimate son
only are admitted."
F
(See 'Hindu Law Books' edited by Whitley-Stokes in 1865 at
page 54i).
In Bhagwan Singh v. Bhagwan Singh & Ors.( 1) a Full Bench of
the Allahabad High Court had to consider the authority of Dattaka
Ohandrika and Dattaka Mimansa as sources of Hindu Law. . Since
G
some doubts had been expressed about it by Mandlik, Golapchandra
Sarkar and Dr. Jolly who were themselves reputed writers on Hindu
Law, after an elaborate. discussion about several earlier decisions and
treatises on Hindu Law published by that time, the majority of the
Full Bench (Edge, C.J., Knox, Blair and Burkitt, JJ.) expressed the
(1) [1895] I.L.R. 17 All. 294. H
30 SUPREME COURT REPORTS [1981] 1 .S.C.R.

A view that Dattaka Mlmansa was not on questions of adoption an
'infallible guide' in the Benares School of Hindu Law. But the
minority (Banerji• and Aikman, JJ.) held that Dattaka Mimansa and
Dattaka Chandrika were works of paramount authority on questions
relating to adoption in the Benares School also. The. Privy Council in
thf' appeal filed against the judgment of the Full Bench observed in
B · Bhagwa_n Singh & Ors. v. Bhagwan Singh (MinorX1) & Ors. thus :
"Their Lordships have mentioned in the prior adoption cases
the views o~ Knox, J. as to the authority of the two Dattaka
treatises just quoted. In the present case the learned Chief Justice· ..
Edge takes even more disparaging views of their authority; denying, _,.,.
if their Lordships rightly understand him, that these works have
c been recognised as any authority at all in the Benares School of
Law. If these were anything to show that in the Benares School ...-.4..
of Law these works had been excluded or rejected, that would
have to b_e considered. But their authority has been affirmed as
part of the general Hindu Law, founded on the Smritis as the-
source from whence all Schools of Hindu Law derive their precepts.
D In Doctor Jolly's Tagore Lecture of 1883, that learned writer says:.
"The Dattaka Mimansa and Dattaka .Chandrika have furnished
almost exclusively the scanty basis on which the modern law of
adoption has been based." Both works have been received in
courts of law, including this Board, as high authority. In Rangama
v. Atchama (4 Moore's Ind. Ap. Ca. 97) Lord Kingsdown says :
E "They enjoy, as we understand, the highest reputation throughout ,.,-
India." In 12 Moore, p. 437, Sir James Colvile quotes with
assent the opillion of Sir William Macnaghten, that both works
are respected all over India, that when they differ the Chandrika ~-
is adhered to in Bengal and by the Southern jurists, while the
Mimansa is held to be an infallible guide in the Provinces of
F Mithila and Benares. To call it infallible is too strong an expres-
sion, and the estimates of Sutherland, and of West and Buhle:i:~
seem nearer the true mark; but it is clear that both works must
be accepted. as bearing high authority for so long a time that .
they become embedded in the general law."
The writings of Sir William Macnaghten, Morley, Colebrooke, Sir )-
G
Thomas Strange, Babu Shyama Charan Sarkar and J. S. Siromani
supports the above view. In Rajendra Narain Lahoree v. Saroda
Sonduree Dabee,(2 ) Uma Sunker Moitro v. Kali Komul Mozumdar(3),
(1) [1898] 26 I.A. 153 at p. 161.
(2) 15 W.R. 54S.
(3) I.LR. 6 Cal. 256 at p. ::l6S.
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) ·31

Lakshmappa v. Ramava(I), Waman Raghupad Bova v. Krishnaji Kashi- A
.raj BoFa(2), Minakshi v. Ramananda(3), Tulshi Ram v. Behari Lal(4), &
Beni Prasad. v. Hardai Bibi(5), the Indian High 'Courts have accepted
·I
the authority of Dattaka Mimansa and Dattaka Chandrika. The Privy
Council has also taken the same view in the Collector of Madura v.
Moottoo Ramalinga Sethupathy(6).
B
In Abhiraj Kuer v. Debendra Stngh(7) ·this Court has dealt with
the value to be attached to Dattaka Chandrika ·and Dattaka Mimansa
:as follows : -
"Learned Counsel has emphasised that great authority attaches
to all statements oJ; law as regards adoption that are contained in
Datfak Mimansa. There is no doubt that for many years now c
the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda
Pandit have been recognised to be of great authority on all ques-
tions of adoption. It is true that Prof. Jolly in his Tagore Law
Lectures had in no uncertain terms characterised the latter to be of
little value; and eminent scholars like Dr. Mandlik and Golap
Chandra Sarkar while writing in the latter part of the last century D
subjected many of Nanda Pandifs views to unfavourable criticism.
Inspite of all this the Privy Council in· Bhagwan Singh v. Bhagwan
Singh (1899) L.R. 26 I.A. 153, 161 did recognise that both the
Dattak Mimansa and Dattak Chandrika had been received in courts
of law including the Privy Council as high authorities and after
drawing attention to Lord Kingsdown's ·statements as regards these
E
in Rungama v. Atchama (1846) I.A. 1, 97 and Sir James Colvile's
·statement in Collector of Madura v. Moottoo Ramlinga Seth11pathy
(1868) 12 M.I.A. 397, 437, stated thus:-"To call it (i.e. Dattak
Mimansa) infallible is too strong an expression, and the estimates
of Sutherland and of West and Buhler, seem nearer the true mark;
b1,1t it is clear that both works must be accepted as bearing high
F
authority for so long a time that they have bec.ome embedded
in the general law." While saying this mention must also be
made of the observations of the Privy Council in Sri .Balusu . i.
Gurulingaswami v. Shri Balasu Ramalakshmamma (1899) L.R. 26
I.A. 113, 136 decided on the same date (March 11, 1899) but
(I) 12 Born. H.C. Rep. 364. G
(2) l.L.R. 14 Born. 249.
(3) I.L.R. 11 Mad. 49.
(4) I.LR. 12 ,All. 3.28 (342).
(5) i.L.R. 14 All. 67 at 10.8.
{6) i2 Moo. I.A. 397.
(7) [1962] 3 S.C.R. 627 at P. 630·631.
. '
32 ·SUPREME COURT REPORTS [1981] 1 S.C.R.

immediately before Bhagwan Singh's case, was decided, expressing
their concurrence with the view that caution was required in
accepting the glosses in .Dattaka Mimansa and Dattak Chandrika ·"'-
where they deviate from or added to the Smrities."
Even when they are read with care it is no't possible to disbelieve
the statement of law with which we are concerned since they are in
B
conformity with many other writings discussed above .
.!
A careful reading of the texts extracted above leads to an inference
that the institution of putrika-putra had become obsolete and not
recognised by Hindu, society for several centuries prior to the time when
Smriti Chandrika or Dattaka Chandrika were written and these two-
c Commentaries belong to a period far behind the life time of, Raja
D~rub Singh.

Some of the decisions _relied on by' the parties may now be
considered . .The decision in Nursingh Narain & Ors. v. Bhuttun Loll &
Ors,( 1) (compiled by D. Sutherland) was not a case where the claim
D of a putrika-putra as it was understood in Hindu Law was upheld.
In that case, the Court liad t6 decide whether a sister's daughter could
become an appointed daughter and her son a putrika-putra. The claim
was rejected with the following observations : -

"There is no doubt that, in ancient times, there were many
legal substitutes for the sons of the body (Auras). Manu (Chapler
E 9, V, 180), and Yagnyavalkya (Mitakshara, Chapter I, Section 2)
· enumerate no le~s than twelve including the legitimate son of the
body; and t_he latter. authority .ranks the son of an appointed
daughter ("putrika-putra") next to the legitimate son, and equal
to him. It is contended by the appellant in this case that a sister's·
daughter may be adopted under this authority, and become "an
F appointed daughter", and her son a "putrika-putra", but we 'do'
not see the slightest resemblance between the two cases. The
daughter appointed to raise up issue for her father must, according
to the old Hindoo Law books, be a man's own daughter, the
\
child of his own loins; and it is solely on the ground of this near 7-
relationship that the son of the daughter, viz. the. "putrika-putra"
G is classed in the same rank with the lawful son of the body.
It is true that, in default of an "aurasa" daughter,-a daughter
of the body, that is,-a man could, under the old Hindoo Law,
adopt a subsidiary daughter as a substitute for her; but these
adoptions were "for the sake of obtaining the heaven-procured by
H (1) (1864 Weekly Reporter 194).
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, l.) 33

the daughter's son" (vide Dattaka Mimansa. page 138, section 18), A
, and not for the purpose of obtaining a ."putrika-putra," an adopted
son by means of an appointed daughter.......... We think, there-
fore, that the appellant in the present case is not a "putrika-putra,"
that is, he is not the son of an appointed daughter in tile proper
sense of the term, and has, according to ancient Hindoo Law,
no status in the family of Holas Narayan. B
Taking . this view of the case, it is not necessary for us to
enter at any great 'length into the second point. All the great
authorities on Hindoo Law admit that, except the Dattaka and
Kritrima, no· other forms of adoption are allowable in the present
age." c
The last para of the above quotation is of some significance so far
as these appeals are concerned.
In Thakoor Jeebnath Singh v. The Court of Wards( 1) the plaintiff
laid claim to an impartible raj, raj of Ramgarh on the gro~nd that
he being the father's sister's son of the last holder, Rajah Trilokenath, D
who died unmarried .was entitled to the estate i!li preference to the
defendant who was a distant agnate of the last holder. Ordinarily the
plaintiff being a bandhu could not exclude the defendant who was a
sagotra sapinda of the last holder.· He therefore, put forward the
plea that as his mother was. the appointed daughter of Maharaj Sidnath
Singh,- the paternal grandfather of the last holder and he as putrika- E
putra should be. treated as a son of Maharaj Sidnath Singh entitled
to succeed to the estate. Two l{uestions arose before the Judicial
Committee of the Privy Council in that case as in the present appeals-
(!) whether the practice of taking a 'putrika-putra' was in vogue and
(2) whether the mother of the plaintiff had in fact been an 'appointed
daughter'. On the first .question, the Privy Council observed that it F
was not necessary to give a finding but on the other .it held that the
plaintiff had not shown that his mother was in fact an 'appointed
daughter'. Even so. after referring to the statements found in the
books of Sir Thomas Strange and Sir William Macnaghten, the Privy
Council obsei;ved that it appeared that the practice of having a 'putrika-
putra' had become obsolete. In that connection, it observed thus : - G
"It is not necessa.rY in this case to decide that this is so,
although there certainly does not appear to have arisen in modern
times any instance in the courts where this custom had been
considered."
(1) [1875] 2 I.A. 163. H
34 SUPREME COURT REPORTS [1981] 1 S.C.R.

Absence of cases before courts within living memory in which
a claim had been preferred on the basis of affiliation in putrika-putra
form showed that the said practice had become obsolete.
The contention based on the· theory that a. person could take a
son as 'putrika-putra' was rejected by the Madras High Court in the
year 1908 in Sri Raja Venkata Narasimha Appa Row Bahadur v:
B Sri Rajah Saraneni Venkata Purushothama Jaganadha Gopala Row
Bahadur & Ors.( 1) in the following wo:ds : -
"Mr. Seshagiri Ayyar on behalf of the appellant contendlld, _J
first, that on a proper construction of the will the testator's d0ught€r
was 'appointed' by her father to raise a son for him in accordance
with a practice which is now generally reputed to be obsolete. We
c need not determine whether in any event the language of the will
could be made· to bear this construction; it clearly could be so
construed only if 'there were in existence a living custom to which
the words can be referred. It is not such language as could be·
interpreted as indicating the testator's intention to revive a dead
custom, or create a new kind of heir for himself, unknown to
D
the law of the present day, supposing him to have the power to
do either of those things."
In Nagindas Bhagwandas v. Bachoo Hurkissaondas( 2) while reject-
ing the contention that the position of an adopted son in the family
of the adoptive father was not that of a. coparcener, the Privy
E Council observed : -
"It was endeavoured to establish that proposition by reference
to the place which was assigned by Manu and other early autho-
rities to the twelve then ·possible sons of a\ Hindu. As to this
contention it is sufficient to say that, whatever may have been
the position and rights between themselves of such twelve sons
F in very remote. times, all of those twelve sons, except the legiti-
mat~ly born and the adopted, are long since obsolete." ,

A Division Bench of the Patna High Court in Babui Rita Kuer v.
Puran Mal(3) while holding that defendant No. 2 in that case who
was alleged to have been appointed as putrika by her father had not
in fact been so appointed, observed (but without actually deciding) :
G · "However, the case of Thakoor Jeebnath Singh v. Court of
Wards (1874-75) 2 I.A. 163, a Privy Council case, is important
in this connexion. The whole argument addressed to ,us is based
(I) I.LR. 31 Mad. 310.
(2) 43 I.A. 56 at p. 67.
H (3) A.LR. 1916 Patna 8.
"SHYAM SUNDER v. STATE OF BIHAR (Venkatarami'ah, ].) 35

-upon the effect of this custom of adoption of a daughter as putrika. A
Now the, Privy Council have laid it down that all Hindu text-
'Writers unanimously concur in holding the appointment of a daugh-
ter as a son to raise up issue to a sonless father is now obsolete;
and no recent authority can be found within modern _times where
the custom has received judicial sanction. In the Privy Council
·Case referred to above a grave doubt is thrown upon the validity of B
such a custom, and it is there distinctly stated that if this custom
'is ever to be revived, it can only be on the clearest and most
·conclusive evidence. To a like effect is the case of Sri Rajah
Venkata Narasimha Appa Row Bahadur v. Sri Raja Suraneni
Venkata Purushiothama Jaganadha Gopala Rao Bahadur (1908)
31 Mad 310, where the custom alleged is considered not to be c
a living custom. Mr. Mayne says at p. 93, Edn. 8, of his treatise
·on Hindu Law that the usage had become obsolete from time
immemorial, and was so decided by the Civil Courts. However,
if this custom or usage is relied on in any given case it must be
.conciusively and undeniably proved. I should be slow indeed to
hold, if this obsolete custom can be established, that all the duties D
and obligations imposed on a Hindu son to discharge the debts
of his father under Mitakshara Law would apply or attach to a
daughter appointed as a putrika to raise issue to a sonless father
the attention of the High Court.
The above case is from the State of Bihar itself. If the practice
<Of appointment of a putrika was in vogue, it would not have missed E
ihe attention of the High Court
lt is true that some observations made in Lal Tribhawan Nath
Singh v. Deputy Commissiloner, Fyzabad & Ors.(1) support· the theory
-that the institution of putrika-putra was in vogue even now. Two
-of the questions involved in that case were whether Sir Pratap Narain F
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-
G
putra of Sir Man Singh although tlie practice of appointing a daughter
·1to bear a son tb a Hindu was permitted by the Mitakshara and was
1
enforceable. It is seen that the above case had a history. Maharaja
Pratap Narain Singh himself had eailier instituted a suit which ulti-
:mately ended up in an appeal before the Privy Council in Mahara;ah
(I) A.LR. 1918 Oudh 225. H
36 SUPREME COURT REPORTS [19811 1 s.c.R_

A Pertab Narain Singh v. Maharanee Sudhao Kaoer( 1). In that case, his-.
plea was that· he (who was also known as Dadwa Sahib) was. the
son of a daughter of Maharajah Man Singh; that he had been treated
by Maharajah Man Singh 'in all respects as his own son' within the
meaning of clause 4 of section 22 of Act I of 1869; that a will
made by Maharajah Man Singh on April 22, 1864 had been revoked
orally on a s~bsequent date and that he had become entitled to the·
estate of Maharajah Man Singh. The Privy Council· held that the·
will had been revoked and Maharajah had died intestate and that
Maharajah Pratap Singh was the person who under clause 4 of section 22
.of Act I of 1869 was entitled to succeed 11Q the taluk, and that he
had made out his claim to a declaratory decree to that effect. The·
c !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 taluk-
'daree estate which was governed by the ordinary law of succession.
It is significant that no claim had been preferred by Maharaja Pratap·
Narain Singh 6n the ground that he was a putrika-putra of Maharajah
D )Man Singh. He merely claimed that he was a statutory heir under
.clause 4 of section. 22 of Act I of 1869 which was passed at the
rrequest of Talukdars including Maharajah Man Singh as. can be seen
from the decision of the Privy Council in Maharajah Pertab Narain-
Singh' s case (supra) which observed thus : -
"So matters stood when the Maharajah, as one of the leading·
E members of the British India Association of Talukdars, went down.
to Calcutta in order to take part in the discussions. and negotia-·
tions which resulted in the passing of Act I of 1869. This must
have been in the latter half of 1868.
Imtiaz Ali; the vakil concerned in the drafting and preparatiorr
of this Aot on the part of the talukdars, has sworn that clause ~
F of the 22nd section originated with the Maharajah; that it was:
opposed by some of the talukdars, but finally approved of by
the Select Committee of the Governor-General's Legislative Council'
on the bill and passed into law. He also says that he was told
by the Maharajah that his object in pressing this clause was to·
provide for the Dadwa Sahib."
G
(NOTE : 'Maharajah' referred
to above is Maharajah Man ·Singh·.·
and 'Dadwa Sahib' is Maharajah Pratap. Narain Singh).
If the practice of appointing a daughter to bear a. son was in.
vogue then Maharajah Man Singh need not have taken the trouble. t<l".
H (1) (1877] 4 I.A. 228.
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 37

request the British Government to get Act I of 1869 passed and if
Maharajah Pratap Narain Singh was a putrika-putr_a, he would not
have refrained from putting forward that case. Moreover the Privy
Council also clarified the object of introducing clause 4 of section 22
of Act I of 1869 thus : _:_ '
"Their Lordships are disposed to think that the clause must
0

be construed irrespectively of the spiritual and legal consequences of
an adoption under the Hindu Law. They apprehended that a Hindu
grandfather could not, ill the ordinary and proper sense of the
term adopt his grandson as a son. Nor do they suppose that,
in passing the clause in question, the Legislature intended to point
to the practice (almost, if not wholly, obsolete) of constituting, in
the person of a daughter's son, a "putrika-putra", or son of an
appointed daughter. Such an act, if it can now be done, would
be strong evidence of an intention to bring ··the grandson within
the 4th clause, but is not therefore essentiaf in order to do so. More-
. over, it is to be observed that the. 4th, like every other clause
in the 22nd section, applied to all the ·talukdars whose names are
included in the second or _third of the lists prepared under the
Act, whether they are Hindus, Mahommedans, or of. any other
religion; and it is not until all ,the heirs defined by the ten first
clauses are exhausted t~at, under the 11th clause, the person
. entitled to succeed becomes determinable by .the law of his religion
and tribe."
E.
Triloki Na,th who failed before the Privy Council thereafter Jlled
a review petition before it. That' petition was dismissed in Pertab Narain
Singh v. Subhao Kooer(I) but he was permitted if he so desired to
reopen by suit in India the question whether he had been properly
represented in the previous litigation in the Indian Courts. Accordingly
a suit was filed in 1879. That ultimately was dismissed by the Privy F'
Council in Perturbarain Singh v. Trilokinath Singh(2) holding that the
previous . proceedings were binding on Trilokinath Singh. Another
suit which had been filed in the meanwhile in the year 1882 for posses-
sion of ,the estate by Trilokinath Singh was also dismissed finally by
the Privy Council in Triloki Nath Singh v. Pertab Narain Singh(3) with
the following observations : - · G
"Their Lordships, therefore, merely declared Pratap Narain
Singh's title to the taluks and whatever descended under Act I of
(I) [1879] S I.A. 171.
(2) [1885] 11 I.A. 197.
(3) [1888] 15 I.A. 113.
H
38 SUPREME COURT REPORTS [1981) 1 S.C.R.

A 1869. As ,to other property which was not included in that Act,
Pratap Naraill would not have been the heir to the Maharaja
during the lifetime of the widow. She would have taken the
widow's estate in all property except that which was governed
by Act 1 of 1869."

B Thus ended the first series of litigation. Now reverting to the case
of Lal Tribhawan Nath Singh (supra) it should be stated that the suit
out of which the said appeal arose was instituted after the death of
Maharaja Pratap Narain Singh in 1906 by Tribhawan Nath Singh,
grandson of Ramadhin, the eldest brother of Maharaja Man Singh in
the year 1915 for a declaration that he was entitled to. the estate as the
heir of Maharaja Pratap Narain Singh under clause 11 of section 22
of_ Act I of 1869 which provided that on the failure of persons referred
to in the first ten clauses, the ordinary heirs under personnal Jaw 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
D 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
.E
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 fainily of Maharaja Pratap Narain Singh. The trial
court dismissed the suit. In the appeal, the Oudh Judicial Commis-
sioner's Court after specifically recording a finding that Mahar,aja
Pratap Narain Singh was not the putrika-putra of Maharaja Man Singh
F held that the practice of appointing a daughter to bear a son to a
Hindu was permitted by the Mitakshara and was enforceable.

Reliance is now placed before us on the above decision of the
Oudh Court to establish that even now 1t is possible to have a son
in the putrika-putra form. We have carefully read the two jm;lgments
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 th~ judgments on other
material issues appear to be quite sound. Sin2e they· had held that
no ceremony constituting the mother of Mahara)a 'pfatap Narain Singh
SHYAM SUNDER :v. STATE OF BIHAR (Venkataramiah, J.) 39

had been performed, they might not have gone into the question of A
law in depth. They just proceeded on the basis of some ancient texts
including the Mitakshara without devoting attention to the practice
having become obsolete. All that Kanhaiya Lal, A.J.C. says on the
abov.e question at page .259 is "The case with which a son could be
obtained by adoption has had the effect in course of time of rendering
affiliation in ·the form of putrika-putra more or less uncommon, but it
has by no means become obsolete, for the Mitakshara gives the putrika-
putra the second or predominant position after the legitimate son and
treats him in every respect as his substitute."
The learned Additional Judicial Commissioner treats, we feel in-
appropriately, the institution of an illatom son-in-law in vogue in
Malabar or Khanadamad recognised in Punjab as but relics of the c
institution of putrika-putra. We have dealt with elsewhere in this
judgment some of the text books referred to by the learned Additional
Judicial Comtnissioner. It is to be noticed that the Oudh Court did
not refer to any specific case where a claim based· on the putrik~-putra
title had been upheld; The following remark made by Stuart, A.J.C.
at page 230 is significant : -
"What reason then could. he have had to be the only person
in Oudh icnown to history who employed a practice by which
he set aside his daughter to bear him a male heir?"
We feel for the reasons given by us elsewhere in this jud~ent
that the view expressed by the Oudb Court on the question of K
prevalence of putrika-putra form of affilfa.tion cannot be accepted as
correct.
We shall now advert to some of the digests, lectures and treatises
on''Hindu Law'. In Colebrooke's Digest of Hindu Law (1874 Edition)
Volume II, page 416, preface to the first ed1tion of which was written F"
in 1796, it was observed thus:
"Among the twelve descriptions of some begotten in lawful
wedlock and the rest, any others but the son oifl the body and the
son given are forbidden in the Cali age. . Thus the Aditya purana,
premising "the filiatiqn of any but a son lawfully begotten or
given in adoption by his paren:ts", proceeds: "These parts of G·
anciemt law were abrogated by wise legislators, as the cases arose
at. the begmn·ing of the Cali a.,.,..
- . . . . . . . . . . . I n t he l"k
1 e mann.er
sufficient reasons may be assigned or the prohibition of appoin:ting
a daughter and so forth. Again, by the term "powers" in the
text of Vrihaspati is meant, not only devotion, but the consequence
of it, namely, command over the senses. , H
SUPREME COURT REPORTS [1981] 1 S.C.R.

AmO'llg these twelve descriptions of sons, we must only now
admit. the· rules concerning a som given in adoption and· one
legally begotten. The law concerning the rest has beea inserted,
to complete that part of the Book, as well as for the use of
those who, not having seen such prohibitory texts, admit the
filiation of orher sons. Thus, in the country of O'dry (O'risa), it
is still the practice with some people to raise up issue on the
wife. of a brother:"
Sir F. W. MacnaghtCn who was a judge of the Supreme Court
of Judicature at Fort William in Bengal writes in his book entitled
'Considerations on the Hindu Law, as it is current in Bengal' (1824
Edition) at page 129:
·c
"Vrihaspati speaks "of the thirteen sons, who have been
enumerated by Meru in their order". And with reference to
this we find in. the Dattaca. Chandrika, 'of these however, in the
present age, all are not recognized. Fm.i a text recites,
'soos of many descriptions, who were made by the ancient Saints,
D camot now be adopted by men, by rea8on of their deficiency of
power;' and against those, other than the son given, being substi-
tutes, there is a prohibition in a passage of law, wherein, after
having been premised-"The adoption, as sons of these other
than the legitimate son, and the son given," it is subjoined. 'This
rule, sages pronounce to be avoided in the Kali age.' "Upon the
"E words, "in· a passage of law" there is the following note; This
passage, which is frequently cited, is attributed to the Aditya
purana, and in its complete state is thus, 'The adoption, as sons
of those other than the legitimate son, and son given; the procrea-
tion of issue: by a brother-in-law; the assuming the state of an
anchoret; these rules, sages pronounce to be avoided in the
·F Kali age.' '.'
Sir Thomas Strange, a former Chief Justice of Madras observes
in his book on 'Hindu Law' (!Published in 1830) Volume I at pages
74-75 as under:
" ..... ;whe'nce the different sorts of sons enumerated by di:tfu-
G rent authorities, all resolving themselves, with Menu, into twelve;
that is, the legally begotten, and eleven subsidiary ones;-reckon-
ing the son of the appointed daughter (putrika-putra) as the same
in effect with the one legally begotten, and therefore not to be
separately accounted; all formerly, in their turn and order,
capable of succession, for the double purpose of obsequies, and
H of inheritance; six (reckoning, with Menu, ,the legally begotton,
SHYAM SUNDER v. STATE OF mHAR (Venkataramiah, J.) 41

and the son of the appointed daughter as one), deriving their A
pretensions from birth, six. from distinct adoptions ; the fi.r~t of
the twelve, namely, the issue male of the body lawfully begotten.
being the principal one of the whole, as the son give& in !ldoption
was always the prellerable one, among those obtainable expressly
in this mode. And now, these two, the son by birth, emphatically
so called, (Aurasa), and (Dattaca) tl:te son by adoption, meaning B
always the son given, are, generally speaking, the only subsisting
OlllleS, allowed to be capable of answering the purpose of. sons,~
the rest, and all concerning them, being parts of ancient law,
understood to have been abrogated, as the cases arose, at the
beginning of the present, the Cali age."
Sir Ernest John Trevelyan, a former Judge of the High C9urt
c
.of .Calcutta in his book entitled "Hindu lLaw as administered in
.British India" (Third Edition) states at page 107 thus:
"In ancient
I
times the Hindu law recognised the following
descriptions of sons as legitimate sons, viz.
1. Aurasa, ........ . D
2. Kshetraja......... .
3. Putrika-putra, or son of an appointed daughter. In ancient
times a man could appoint his daughter to raise up issue
tb him. The practice is obsolete. Shastri Golap 'Chunder
Sarkar, .without giving any instances of its application, con- E
tends that there is no reason why it should not be now applied.
4. (to) 13..................... .
Of these the only sons that are now recognized by Hindu
law are the Aurasa son and the Dattaka son. According to the
Mithila school a Kritrima son can be taken in adoption. Adoption F
in this form is based upon, recent works, and is not referable to
the ancient practice of taking Kritrima sons." '
Dr. Jullius Jolly in hi.s Tagore Law lectures delivered in. 1883
entitled "Outlines of an History of, the Hindu Law of Partition,
In4eritance and Adoption" states in his Lecture VII at page 144 thus:
G
"The early history of the Law of Adoption may be traced
in. those enumerations of subsidiary or secondary SO'llS, which
occupy such a prominent place in the Indian Law books. Nearly
all these substitutes for real ,sons are now long since obsolete,
but they are deserving of attention, not only from a hist;orical,
but from a practieal point of View, because the rules regarding H
42 SUPREME COURT REPORTS [1981].1 S.C.R~

A them, being earlier in time, have in a measur~ formed the basis
on which adoption in the proper sense of the term has: been
framed by the writers of the medieval and modem Indian
. Digest\."
That the enumeration of twelve or thirteen and even fifteen
B kinds of sons in ancient Smritis owes its origin to the tendency ol1
ancient writers to deal with exhaustively all possible sons a ma~
could conceive of irrespective of the fact that all of them might not
have received legal sanction in the contemporary society is obvious
from the inclusiocq in the list of fifteen sons of a son called ir~T'9-
'1l~trrf<::cr (Yatrakvachanotpadita) (son produced in any other manner
c than the sons previously enumerated).· Referring to su.ch a son.
Dr. Jolly observes at page 146 thus:
'
"Beginning with the son procreated anywhere, who comes
in as the last of all, I may observe that the on,!y other text in
which this kind of son is referred to occurs in the Vishnu-
smriti; coming in, as it does, at the end of the whole list, the
D term Yatrakvachanotpadita seems to mean produced in any
other manner than the sons previously enumerated," and may
owe its origin to the systematizing sprit of a later ,age which
wished to exhaust all sorts of sonship that might occur anyhow.''
After referring to the relevant texts of Apararka, Smriti1 Chandrika.
Battaka Chandrika, Madhava, Visvesvara Bhatta, Vivada
E
Chintamani, Dayabhaga, Dattaka Mimansa, Nirnaya Sindhu of
Kamalakara Vyavahara Mayukha of Nilkantha and the Dharma
Sindhu of Kasi Natha, Shri Rajkumar Sarvadhikari states in 'the
Principles of the Hindu Law of Inheritance' (Tagore Law
·' Lectures, 1880) at pages 407-409 as follows:-
F "This catena of texts will prove to you that the practice
of affiliating different kinds of sons has become obsolete at the
present day. The only exception is the dattaka, or the soru
given by his parents.

It may be said that the Mitakshara, the Dayabhaga, and the
G Vivada Chintamani the leading authorities in tlie Benares, the
Bengal, and the Mithila Schools-seem still to countenance the
practice. That these schools do not recognise such a custom' is
proved beyond question by the other text-writers of these schools,.
who Juve followed the lead of Vijnanesvara. Jimutavahana and
Vachaspe.ti Misra. The authority of Visvesvara Bhatta, Madhava,.
H Kamalakara, Nanda Pandita, and ~agannatha is quite enough t0>
SHYAM SUNDER v. STATE OF BIHAR (Venkatarami'ah, J.) 43

show that the ancient practice of affiliating different kinds of sons A
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 enume-
rated by Manu, has become wholly obsolete' in the present age.
B
The same may be said also of the Benares School, Visves-
vara 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
c
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 D
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 : F
"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 G
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. H
4-646 S.C. Indiai/80
44 SUPREME COURT REPORTS f 1981] 1 S.C.R.

A 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
B 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, Kamala-
c kara, 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."
D
After quoting the text of Vrihaspati:
arif'PITT: wcrr: ~T ~ffl!"f'l1iS'!<:Tarr: I
~~S~'IT 'fic~ ~f'fci~Afwa-if: 11
'1"
(Sons of many descriptions who were made by ancient saints
canoot now be adopted by men, by reason of their deficiency of
E power).
Jogendra Smarta Siromani observes in hi1s Commentary on the
'Hindu Law' (1885 edition) at page 112 thus:
"All the secondary sons, with the exception 0£ the Dattaka,
have not only become obsolete, but according to the Shastras,
F they .are not sons at all in the preserit age."
At page 148 in the same book, he further observes :
"The Kritrima form of adoption p11evai1s only in Mithila,
Nanda Pandita recognizes it as legal notwithstanding the text of
Adita Purana which declares that in the present age all the ~-
(

G secondary sons have become obsolete with the exception of the
Dattaka (see Mimansa, section II, para 65)."
John D. Mayne, the author of 'Mayne's Treatise on Hindu Law
and Usage' (11th Edition) states at page 114.:~
"The truth is that there were only two kinds of sons, the
H
aurasa and the adopted son. The list of twelve or thirteen sons
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 45

was obviously due to the systematising habit of Sanskrit A
Writers."
Jn 'Mulla's Principles of Hindu Law' (14th Edition), it is stated at
+ page 115 thus:
"The daughter's son occupies a peculiar pqsitiun in the
Hindu law. He is a bhinna-gotra sapinda or . bandhu, but \he B
comes in before parents and other more ren;iote gotraja sapindas.
The reason is that according to the old practice it was competent
to a Hindu who had no son to appoint a daughter to raise up
issue to him. Such a daughter, no doubt was the lawful wife of
her husband, but her son, called putrika putra, becomes the
son of her father. Such a son was equal to an aurasa or c
legitimate son, and took his rank, according to seve~al authori-
ties, as the highest among the secondary sons. Although the
practice of appointing a daughter to rai'o'Je up io'JsUe for her father
became obsolete, the daug!Ner's son continued to occupy the
place that was assigned to him in the order of inheritance and
even now he takes a place practically next after the male issue, D
the widow and t/:ie daughters bei111g simply interposed during their
respective lives."

The portion underlined in the above extract is quoted with
:approval by the Privy Council in Ghanta Chinna Ramasubbayya &
Anr. v. Moparthi Chenchuramayya Minor & Ors. (supra). E

N. R. Raghavachariar on 'Hindu Law Principles & Precedents'
· (5th Edition) writes at.' page 78:

"But with the settlement of the society to peace and order
and the recognition and enforcement by some superior power
of the mutual rights of the people, the idea of family relatton- · F
ship received a better refinement and definition, and all the
sons excepting the Aurasa, the Dattaka and the
son by a permanently and exclusively kept concubine (Dasiputra)
have become obsolete. But the Putrika putra form of adoption,
perfectly natural and consistent with the feelings of affection
which a Hindu has towards his daughter's son, is still prevalent G
in Malabar, though in other parts of India it has become obsolete''.

We find a detailed discussion of the aurasa and eleven or twelve
"kinds of subsidiary sons mentioned by ancient smriti writers in
~History of Dharmasastra' (Vol. III) by P. V. Kane at pages 643 to
'661. At page 657, the learned author writes- H
46 SUPREME COURT REPORTS [1981] 1 S.C.R.

A "In modern tilnes the courts generally recognize only two
kinds of sons, viz. aurasa and dattaka, the other kinds of sons
being held to be long since obsolete. Vide Nagindas v. Bachoo
(43 I. A. 56 at p. 67). But two more kinds of sons have been
recognized in modem times in certain provinces only, viz. the
kritrima in Mithila (modem Tirhoot) and the putrikaputra among
B the Nambudri brahmanas of Malabar, both of which will be
dealt with below."
At page 659 in the same book, Shri P. V. Kane says:
"The putrikaputra is no longer recognised anywhere in India
except among the Nambudri brahmanas of Malabar."
c
All the above digests, lectures and treatises support the view that
the practice of appointing a daughter as a putrika and of treating --4-
her son as putrika putra had become obsolete several centuries ago.

Whereas passages in the text books referred ro above point out
D that the practice of appointing a daughter to raise an: issue had become
obsolete, we find the following passage in 'A Treatise on Hindu Law•
by Golapchandra Sarkar Sastri (Third Edition) at pages 124-125
striking a slightly different note : -

"Putrika-putra: It is most natural that a person destitude
E of male issue, should desire to give a grandson .by daughter the
position of male issue. The appointed daughter's son is not
regarded by Manu as a secondary son, but is deemed by him
as a kind of real son. This form of adoption appears to
prevail in the North-Westem Provinces, and neighbouring district.
F The Talukdars of Oudh submitted a petition to Government for
recognising the appointed daughter's son; and accordingly in the
Oudh Estates Act "son of a daughtev treated in all respects as ·
O'lle's own son" is declared to be heir, in default of male issue.
This sort of affiliation appears to be most desirable and perfectly
consistent with Hindu feelings and sentiments; there is no reason
G why it should oot be held valid, when actually made by a Hindu.
The Dattaka-Mimansa appears to have been written on purpose
to invalidate the affiliation of a daughter's son, for the benefit
of agnate relation,s."

We do not think that the above passage in any way supports the
H case of the appellants. The author of the above book appears to make
a special plea for reintroducing the institution of putrika putra. · He
does not refer to any prevailing practice of affiliat.ion of a putrika putra
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 47

.in accordance with Hindu Sastras. The reference to the passing of A
the Oudh Estates Act instead of supporting the case of the appellants
weakens it. We have dealt with this point in detail while dealing with
the case of Lal Tribhawan Nath Singh (supra). Sir E. J. Trevelyan
also does not approve of this statement of Golapchandra Sarkar Sastri.
Jogendra Chunder Ghose in his book entitled 'The Principles of
Hindu Law' (1903 Edition) observes at pages 77-78 : B
"It remains to record the changes in the Hindu Law brought
about by the ingenuity of the Judges and lawyers of our modern
Courts·. The position of the son, grandson, and great-grandson
remains unchanged. The Putrika and the Putrika-Putra are not
recognized in spite of all the Rishis and all the Commentators. c
The daught~r takes after the widow according to the text/of Yaj-
navalkya, but she is given a life-interest against all auth6rity, and
for reasons invented by the Bengal lawyers. The daughter's sons
come next, and they are declared to take per capita against all the
Rishis and all the Commentators who have dealt with that
question." D
From the above passage it is clear that the institutions of putrika
and putrika-putra have become obsoleie. 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
E
change.
In the course of the arguments learned counsel for the appellants
strongly contended that there was no. justification to deny the right
to a Hindu to take a son in the putrika putra form when it had been
sanctioned by Yajnavalkya in his Smriti and by Vijnanesvara in his
Commentary, the Mitakshara. It was contended that merely because F
there were no instances where the said practice was followed in the
immediate past, it could not be held that it had ceased to be a part
of Hindu law. It is seen from the several texts of commentaries
extracted in the course of this judgment that the practice of taking a
son in putrika-putra form had become obsolete in modern times and
there are good reasons in support of that view. , Before dealing with G
such reasons, we should keep in our view one of the statements of
Vrihaspati which says thus: -
a-i:hrf'l' <il"fi f<rfi.r;i
'!' 'll' <rrcr <'l'fi!i fcrll;i
~ '
'i'f"f~CI', H
(Even if a rule is pro19ounded by the Smritis, it should not be
practised if it is rejected by the people or is opposed to their will). A
48 SUPREME COURT REPORTS [1981] 1 S.C.R.

A. rule of interpretation lays down that if there is a clear usage to the
contrary, the Shastra has to yield. (l11ffimf, ·mirfti:rn'T ). If there
is divergence of opinion amongst the Smritis, a Judge should consult
the prevailing practice among the people while deciding a case.
(~ciitfin:hr i'lfl"lffif, <r<'f<fl"if ~~=) There is another injunction of
Vrihaspati which is very salutary :
B
~ !11Tf?l:i:rTf~
~ol:TT ft! fifl!ftT: 11
'-!;f<m ~A' fcrqr~q: 1
"1l1• ~Tf'f: ~(f 11

c (The decision (in a case) should not be given by merely relying
a
on the Sastras, for in the case of decision devoid of reasoning loss.
of dharma results) .
.We shall now examine the reason for the abandonment of the
practice of appointing a daughter to raise a son by the Hindu society.
D Originally according to a vedic text cited by Lakshmidhara, a daughter
was like a son, and a daughter's son was like a son's son. (o- : <
'!,i'f~'H "f '1Ti'fT: q-1f~·'li ~aT:) Manu prescribed that he who·
had no son might make his daughter in the following manner an
appointed daughter (putrika) saying to her husband 'The (male) child
bopi of her, shall perform my funeral rites'
E 3i""'!i'fTRif f<rf!;"f<fr
wit ~crm '\fu"<ITT~
~lf ~l:fT:
a•1111 f4 ia, f<r!:TT'li~
According to Manu 'A son is even as one's self, daughter is equal
F to a son. how can another (heir) take the estate, while (such daughter
who is) one's self, lives. The daughter's son shall take the. whole estate
of his maternal grand-father who leaves no male issue. Between a
son's son and the son of a daughter, there is no difference according
to law. But if, after a daughter has been appointed, a son be born
(to her father) the division (of the inheritance) must in that (case) be
G
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'.
H · From the above texts, it is obvious that in ancient times, the
daughter and the daughter's son were given preference over even the
widow of a person in the matter of succession. It is said that ancient
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, ].) 49

commentators like Medha-thi-thi and Haradatta had declared that the A
widow was no heir and not-withstanding some texts in her favour. her
right was not fully recoguised till Yajnavalkya stated that the widow
would succeed to the ~state 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 B
daughter, it was not expressly stated that daughter's son would succeed,
· but the parents were shown as the successors. Vijrtanesvara, however,
interpreted the word ''f' (cha), which meant 'also' in G:~cr
(Duhitaraschaiva) in the text of Yajnavalkya laying down the ~ompact
series of heirs as referring to daughter's son. The relevant text of
Yajnavalkya has been quoted above. , Vijnaneswara interpreted the c
word 'cha' ('Of) referred to above as follows: -
"1' m;;;~r~'!f~'+TT!f G:i'~ Ci'f'+lPli, ll"i:rm: fcrsur ar~<.:f 'TT~HRH~
G:i'~~r tR+rf"'!it: I 'lcfQT•~ ~Cl'CT!'!iT~ ' '11'<.:ir G:Tf~q;r irm" ~fa" I
~ ai'1ia'T err~r 'irf'r 'Q' t1rr~q_ tJ'1mr wt '11'<.:ir irrm~~;:r
D
~ fq-ui ~~fer I .
(By the import of the particle, 'also', the daughter's son succeeds
to the estate on failure of daughters. Thus Vishnu says "If a man
leaves neither son, nor son's son, nor wife, nor female issue, the
daughter's son shall take his wealth. For in regard to the obsequies
of the ancestors, daughter's sons are considered as son's son. Manu
E
likewise declares 'By that male child,. whom a daughter whether for-
mally appointed or not shall produce from a husband of an equal class,
the maternal grandfather becomes the grandsire of a son's son: let
that son give the funeral oblation and possess the inheritance.) . It may
be noticed that but for the above interpretation of the word 'cha' ( '<!')
a daughter's son would have come in as an heir after all agnates ( ~
as the daughter's son is only a coguate (Bandhu). As a result of the T
above interpretation, the daughter's son was promoted in rank next
only to his maternal grand-mother and his mother whose interest in
the estate was only a limited one. Viewed from this situation, the
reason for abandoning the practice of appointing a daughter as putrika
and treating her son as putrika putra becomes clear. When a person
bad two or more daughters, the appointment of one of them would G
give her primacy over the wife and the other daughters (not so
appointed) and her son (appointed daughter's son) would succeed to
the exclusion of the wife and other daughters and their sons and also
to the exclusion of his own uterine brothers (i.e. the other sons of the
appointed daughter). Whereas in the case of plurality of sons all sons
would succeed equally, in the case of appointment of a daughter, other H
daughters and their soils alongwith the wife would get excluded. It is
50 SUPREME COURT REPORTS [1981] 1 S.C.R.

A probably to prevent this kind of inequality which would arise among
the daughters and daughter's sons, the practice of appointing a single
daughter as a putrika to raise an issue must have been abandoned when
people were satisfied that their religious feelings were satisfied by the
statement of Manu that alt sons of daughters whether appointed or
not had the right to offer oblations and their filial yearnings were
B satisfied by the promotion of the daughter's sons in the order of succe~
sion next only to the son as the wife and daughters had been interposed
only as limited holders.
In Ghanta Chinna Ramasubbayya & Anr. v. Moparthi Chenchura-
mayya, Minor & Ors. (supra), the Privy Council after quoting with
c approval a passage in D. F. Mulla's Book on Hindu Law (p. 40, 9th
Edition) where it had been stated that although the practice of appoint-
ing daughter to raise up issue had become obsolete, the daughter's
son continued to occupy the place that was assigned to ·him in the·
order of inheritance observed thus:
"'fhe daughter's son owes much to Vignaneshwara for his
D
place in the scheme of the law of inheritance for, in the sub-
joined important text of Yajnavalkya, wl:li;ah forms the entire
basis of the Mitakshara law of succession the daughter's son is not
expressly mentioned. "The wife, and the daughters also, both·
parents, brothers likewise and their sons, cognates, a pupil and a
E fellow student : on failure of the first among these, the next in
order is indeed heir to the estate of one, who departed for heaven
leaving no male issue. This rule extends to all persons and
classes," Colebrook, Mit. Ch. ii s. 1, v. 2. By interpreting the
particle "also" in the above text, Vignaneshwara gave the daugh-
ter's son a place in the law of inheritance. "By the import of
F particle 'also' (sects. 1 and 2) the daughter's son succeeds to the
estate on failure of daughters. Thus Vishnu says 'if a male leave
neither son, nor son's son nor (wife nor female) issue the daughter's
son shall take his wealth for in regard to obsequies daughter's
sons are considered as son's sons .......... '," Colebro0k, Mit. Ch. ii,
s. 2, v. 6. It is interesting to note the remark of Mandlik on the
G above interpretation by Vignaneshwara. He says: "After the
word daughter's son in the above text occurs the particle (Chaiva)
'aiso', to give some sense to which Vignaneshwara introduces here,
the daughter's son in conformity with a text of Vishnu, 'the wealth
of him' who has neither sons nor grandsons goes to daughter's
son, for ...... '" Compare Manu ch. IX; v. 136. (Mandlik's trans-
H lation, p. 221). By the above ingenious exposition, the famous
compiler of the Mitakshara shaped the law into conformity with
the needs of the day without appearing to make any change and
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 51

thus gave the daughter's son his present place in the law of A
inheritance".
\
Dr. Nares Chandra Sen-Gupta in his Tagore Law Lectures, 1950
-0n 'Evolution of Ancient Indian Law' also subscribes to the view that
the institutions of putrika and putrika-putra had become obsolete
.several. centuries ago and observes at pages 146-148 thus:- B
"In later Smritis, the Putrika has lost all her importance. For
already the daughter as such is mentioned by them as heir, irres-
pective of her being a Putrika, after the sons and the widow. Manu
too, while he begins by giving the formula by which a girl could
be made a Putrika, in the immediately following slokas, says that
a daughter and a daughter's son as such inherit to a sonless c
person. In Yajnavalkya the Putrika is barely mentioned, but the
inheritance of the daughter after the widow is well settled. ·
Obsoles~nce of Putrika

Now if a daughter and her son inherit as such and if every D
daughter's son, and not merely the Putrika's son inherits and, as
in Baudhayana, offers oblations to the maternal grand-father as
such; all practical utility of Putrika disappears, and the institution
naturally ceases to exist.
The obsolescence of this custom in the time of Manu and
Visnu and others appears from the absence of further details about E
this institution in any of these Smritis.
Manu, indeed, true to its character as an encyclopedaeic
digest. of all texts gives us several texts relating to the Putrika,
which belong to different strata of the history of Jaw. It is
singular, however, that in his enumeration of the twelve kinds of F
secondary sons (IX, 159, 160) he omits any reference to the Putrika
or her son. In another place (IX, 123 et seq.) however he deals
with the Putrika's son, but bis treatment of the subject is mixed
up with that of the daughter's son generally. As already pointed
out, be lays down the law that a Putrika is made by a contract
at the time of marriage (IX, 127), but, immediately after that, he G
follows with a text laying down that a daughter's son as such
inherits to a sonless person and offers pindas both to the father
and the maternal grand-father (IX, 132). This he emphasizes by
saying that the son's son and the daughter's son (not Putrika's son
alone) are equal in all respects (IX, 133, 136, 139). In IX, 140
he lays down the order in which the i,>utrika's son offers pindas H
to his maternal ancestors, while in IX, 135 be says 'that on the
'Putrika dying sonless, her husband inherits to her, thus indicating
52 SUPREME COURT REPORTS [1981] 1 S.C.R-

A 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,.
B 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,_
--~
c 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
D 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:
E 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."
F
We are broadly in agreement with the following passage occurring·
in Mayne's Hindu Law (1953 Edition) at pages 181-182 which while
dealing with the reason for putrika-putra losing importance and the-
emergence of the adopted son as ,the only other son recognised by
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 tem-
poral purposes was established· from the earliest· times and he had·
H 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
SHYAM SUNDER v. STATE OF .BIHAR (Venkataramiah, J.) 53

it must have been increasingiy felt that his father should not be A
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 B
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 c
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 putrika-
putra's duty to offer pinda to the maternal ancestors was imposed
D
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 F
given up.

It was in the alternative contended that when once it was estab-
lished 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 G-
competent legislature-a law making body as we understand today.
It is also argued that the theory of a practice once recognized by law
becoming obsolete was unknown. In support of the above submis-
sion, strong reliance was placed on the decision ·of the High Court
of Madras in Pudiava Nadar v. Pavanasa Nadar & Ors.(1) In that
case, the question before th~ High Court was whether the rule of Hindu H
law which excluded a congenitally blind person from inheritance had
(I) (1922) I.LR. 45 Mad. 949:
54 SUPREME COURT REPORTS [1981] 1 S.GR.

A 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<_I)
which had taken the view that the said rule had become obsolete and
doubts had been entertained about the correctness of that view. In
Surayya's case (supra) Sadasiva Ayyar, J. observed: "I need not say
that a rule becomes obsolete when the reason of the rule disappears
B through change of'circumstances and environments in the society which
was governed by that rule", while Napier, J. who agr,eed with him
said that owing to improved methods of education there was no reason
why such a disqualification should still continue and that it was open
to the Court to enunciate that rule by declaring it to be obsolete.
Sc!1wabe, C. J. who presided over the Full Bench which decided
Pudiava Nadar's case (supra) after observing:
"The next question is whether, assuming a blind man's exclu-
sion to have been the law at .the date of the Mitakshara, it has
since become obsolete. This, in my judgment, is a question of
fact. A law does not cease to be operative because it is out of
D keeping with the times. A law does not become obsolete because
it is an anachronism or because it is antiquated or because the
reason why it originally became the law, would be no reason for
the introduction of such a law at the present time."
proceeded to state
E "In considering whether the custom has becom1: obsolete in
the sense of its having ceased to exist, the fact that it is an anach-
ronism may be a proper matter to be taken into consideration,
if there were evidence both ways, in weighing that evidence but
otherwise it is of no importance. In this case, in my judgment,
the evidence is all in favour of the custom having continued. There
F is no oral evidence before the Court and no statement of any
text writer or any judgment to which our attention has been called
that this custom has become obsolete in the sense of its having
been discontinued."
Oldfield, J. agreed with the Chief Justice. Coutts Trotter, J., the
G third Judge delivered a separ~te but concurring judgment in which he
observed thus:
"To my mind, before allowing a mandate such as I conceive
. this to be, to be disregarded, it must either be proved by evidence
\
to be actually disregarded in practice at the present time and as
H I have already said there is no such evidence in this case-or it
must be shown by an examination of the smritis and commentaries
(I) (1920) I.LR. 43 Mad. 4. ,
SHYAM SUNDER v. STATE OF BIHAR (Venkataramiah, J.) 55

to have been obsolete at the time they were written, and that the A
authors thereof merely repeated parrot-like the words of Manu
and the Mitakshara as a maxim dignified by antiquity but not
·corresponding to the practice obtaining at the time either. of the
Mitakshara or of their own compilations. If it could be shown
that commentators earlier than the Mitakshara had used language
meaning or implying that the rule in this respect was obsolete, B
that might be a legitimate ground for the conclusion that the
Mitakshara was merely repeating the words of Manu without
inquiring whether the rule survived in force when the Mitakshara
was written. If a commentator later than the Mitakshara used
similar language, that might lead to a legitimate inference that,
though in force at the date of the Mitakshara, the rule had sub- c
seqflently become obsolete."
Ultimately the Full Bench held that the rule which excluded a
congenitally blind person from inheritance had not been shown. to
have become obsolete and that in the twentieth century any amendment
to that rule could only be done by a legislature. It is stated that the D
ratio of this decision has been dissented from in two subsequent deci-
sions of the Madras High Court in Amritammal v. Valli Mayil Am•
ina/(1) and in Kesava v. Govindan(2). We are not concerned with the
said subsequent opinions. But the fact remains that both Schwabe,
C.J. and Coutts Trotter, J. who decided the Pudiava Nadar's case
(supra) did not state that a rule of Hindu law could not become un- E
enforceable on the ground that it bad become obsolete.
The rule of desuetude or obsolescence has been applied by this
Court while interpreting Hindu law texts. In Shiromani & Ors. v. Hem
Kumar & Ors.(3) one of the questions which arose for consideration
was whether the practice of allowing a larger share of property to the F
eldest son which was known as 'Jethansi' or 'Jeshtbhagam' had become
Gl>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 : G

"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
H
(!) (1942) I.LR. Mad. 807 (F.B.).
(2) (1946) l.L.R. Mad. 452 (F.B.).
(3) [1968] 3 S.C.R. 639.
56 SUPREME COURT REPORTS [198lj 1 S.C.R.

.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. Gan-
dharva 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: -
D
irrrriur mr~;;
or~i u:;ffer ~:
~lR'f qf~~<:H:
fcrnJ~.:"fff'l'l~: 11
E (Many daughters of royal sages are heard to have been married
by the ceremony called Gandharva, and (even) their fathers have
approved them):
But in Bhaoni v. Maharaj Singh( 1) and Lalit Mohan v. Shyama-
pada 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
H
(1) (1881) l.L.R. 3 AIL 738.
(2) A.I.R. 1952 Cal. 771.
SHYAM SUNDER v. STATE OF llIHAR (Venkataramiah, J.) 57

:in the following passage in Atmaram Abhimanji v. Bajirao Janrao A
.&: Ors.( 1)
"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 B
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 embrac-
ing rule of Yajnavalkya, and while mentioning it in the verse
.dealing with .the subject, he gave prominence to the restricted c
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 D
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 E
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 approv-
ed usage": Bhyah Ram Singh v. Bhyah Ugur Singh (1870) 13 F
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 G
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 H
ingenious interpretations of the same ancient texts, they achieved
(I) 62 I.A. 139 at p. 143.
58 SUPREME COURT REPORTS [1981] 1 S.C.R.
A the laudable object of bringing the provisions of ;the law into
1i
line with popular usages and customs. The part played by
"
,]!, Vijnanesvara in this connection deserves special mention. The
fiction of interpretation is seen in the three systems of jurispru-
"., dence known to us, the Roman, the English, and the Hindu
system. But as Mr. Sankararama Sastri points out, there is an
B
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
c 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 commen-
E rtators 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
F 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 of the Privy Council in Sri Batusu
Guruling<1$Wami v. Sri Balusu Ramalakshmamma & Ors._ (1) in which -
G 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
H which had taken the view that the textual prohibition was only direc-
tory and not mandatory by applying a rule of interpretation expound-
(!) [1899] 26 I.A. 113.
SHYAM SUNDER v. STATE OF BIHAR (VenkaJaramiah, J.) 59

ed by Jamini, the author of 'Purva Mimansa' that all texts, supported A
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: -
B
"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 c
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 restric-
tion. 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 D
Bengal, 1868) is grounded on a palpably unsound principle, and
loses its weight. The second in time (Bombay, 1875) is ground-
ed 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 mis-
leading. So that it, too, loses its weight. The third (Bengal,
E
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 F
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 com-
parison. The judicial reasoning, then, in favour of the restric-
ctive construction is d'ar from convincmg. That the earliest G
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 H
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
60 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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
B 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
c not make it, cannot, as the Legislature can, declare it with a reser-
vation 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.
D 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
E 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
F 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
G 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
H 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
;.

SHYAM SUNDER v. STATE OF BIHAR (V enkataramiah, J.) 61

in modern times any instance in the· courts where this custom has A
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 con-
cerned 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 B
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 argu-
ment of the learned counsel, which in the circumstances appears to
be highly tenuous.
c
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 D
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.
E
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. F
The said commentaries on which reliance was placed by the appellants
have been deait with in detail by Madan Mohan Prasad, J. in para-
graphs 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 : -
G
"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. H
Even though he has referred to Nanda Pandit and discarded the
Kshetraj on account of the interpretation by Nanda Pandit, he
!!

I
if
l~
i;
A
62 SUPREME COURT REPORTS [1981] 1 S.C.R.

has not referred to the prohibition of Saunaka and the accept-
ance 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
+
j. accepted the prohibition of Saunaka so as to include the Putrika
Putra.
B
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
c 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
D 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
E 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."
F
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 institu-
tion 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
G 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
H 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 A
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. B
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 c
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 D
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 E
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 F
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 G
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
H
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;