Shyam Sunder Prasad Singh & Ors Vs. State of Bihar & Ors [1980] INSC 130 (22 July 1980)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S. (J) BHAGWATI, P.N.
SEN, A.P. (J)
CITATION: 1981 AIR 178 1981 SCR (1) 1
ACT:
Hindu Law-Interpretation of ancient texts of Smritis and commentaries on Hindu Law, care to be taken-"Putrika Putra" (appointed daughter's son who by agreement or adoption becomes the son 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 the Mitakshara law-Rule of desuetude or obsolescence, explained.
HEADNOTE:
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 grandson, Raja Dhrub Singh dying issueless in 1762, Raja Jugal Kishore Singh, son of Raja Dhrub Singh's daughter Benga Babui, entered into possession of the estate of "Bettiah Raj". The East India Company officers seized the estate from him and later allotted only the zamindari of Majhwa and Simrown, while those of Maihsi and Babra were allotted to Srikishen Singh and Abdhoot Singh. The last male holder of Raja Jugal Kishore Singh was Maharaja Bahadur Narendra Kishore Singh who died issueless on March 26, 1893, leaving behind him two widows Maharani Sheo Ratna Kuer and Maharani Janki Kuer, who succeeded him one after the other. During the lifetime of Maharani Sheo Ratna Kuer, two suits were filed claiming the estate but they were lost in all courts including the Privy Council. In 1897, the management of the estate was taken over by the court of Wards Bihar and the Government of Uttar Pradesh in respect of the areas falling in these two States. Maharani Janki Kuer died on November 27, 1954. The State of Bihar, therefore, made an application before the Board of Revenue, Bihar, praying that the estate of Maharaja Narendra Singh which was held by late Maharani Janki Kuer as a limited owner but managed by the Court of Wards be handed over to the State of Bihar by virtue of the rule of escheat. The Board of Revenue published a Notification calling upon interested parties to prefer the claim, if any, to the properties comprised in the estate. Since there were several claimants taking inconsistent pleas, the Board of Revenue declined to release the estate in favour of any of the claimants and as per its order dated January 18, 1955 directed that the properties would be retained by the Court of Wards until the dispute as to its succession was determined by competent Civil Court. The title suit having been lost. The appellants have come up in appeals by certificate. The State of Bihar which claimed title by the rule of escheat also preferred appeals.
Dismissing Civil Appeals Nos. 114-119 of 1976, the Court
HELD: (1) While interpreting the ancient texts of Smritis and commentaries on Hindu Dharmasastra, it should be borne in mind the dynamic role played by learned commentators who were like Roman Juris Consults. The 2 commentators tried to interpret the texts so as to bring them in conformity with the prevailing conditions in the contemporary society. That such was the role of a commentator is clear even from the Mitakshara itself at least in two places-first, on the point of allotment of a larger share at a partition to the eldest son and secondly on the question of right of inheritance of all agnates.
[56F-H] (2) Etymologically, the word 'putrika' means a daughter (especially a daughter appointed to raise male issue to be adopted by a father who has no sons), and 'putrika-putra' means a daughter's son who by agreement or adoption becomes the son of her father [20C-D] A careful reading of the ancient texts-Manu, Yajnavalkya, (Mitakshara) (Vijnanesvara) and Apararka (Aparaditya) Baudhayana Dharmasutra, Vishnu Dharmasastra, Vasishtha Dharmasutra, Parasara Madhava, Smriti Chandrika of Devannabhatta, Dattaka-Chandrika and Dattaka Mimansa by Nanda Pandita-leads to the inference that the institution of "Putrika Putra" had become obsolete and not recognised by Hindu society for several centuries prior to the time when Smriti-Chandrika or Dattaka Chandrika were written and these two commentaries belong to a period far behind the life time of Raja Dhrub Singh [32B-C] Further, absence of cases before courts within living memory in which a claim had been preferred on the basis of application in "Putrika-Putra" form showed that the said practice had become obsolete. [34A] Thakoor Jeebnath Singh v. The Court of Wards, (1875) 2 I.A. 163 (PC), quoted with approval.
Sri Raja Venkata Narasimha Appa Row Bahadur v. Sri Rajesh Sraneni Venkata Purushotama 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.I.R. 1918 Oudh 225, overruled.
(3) All digests, lectures and treatises support the view that the practice of appointing a daughter as a putrika and of treating her son as "putrika-putra" had become obsolete several centuries ago. And, the reason for the abandonment of the practice of appointing a daughter to raise a son by the Hindu society is clear from the following situation. [46C, 49F] In ancient times, the daughter and daughter's son were given preference over even the widow of a person in the matter of succession. Ancient commentators like Madhathithi and Haradatta had declared that the widow was no heir and notwithstanding some texts in her favour, her right was not fully recognised till Yajnavalkya stated that the widow would succeed to the estate of a sonless person. In Yajnavalkya Smriti, the order of succession to a male was indicated in the following order (1) son, grandson, great grandson, (2) putrika-putra, (3) other subsidiary or secondary sons, (4) widow and (5) daughter. It was not expressly stated that daughter's son would succeed, but the parents were shown as the successors. Vijnanesvara, however, interpreted the word "cha", which meant "also" in "Duhitaraschaiva" in the text of Yajnavalkya laying down the compact series of heirs as referring to daughter's son. But for this interpretation a daughter's son would have come in as an heir after all agnates (gotrajas), as the daughter's son is only a cognate (Bandhu). As a result of this interpretation, the daughter's son was promoted in rank next only to his maternal grand-mother and his mother whose interest in the estate was only a limited one. [48H, 49A-C, E-F] 3 When a person had two or more daughters, the appointment of one of them would give her primacy over the wife and the other daughters (not so appointed) and her son (appointed daughter's son) would succeed to the exclusion of the wife and other daughters and their sons and also to the exclusion of his own uterine brothers (i.e. the other sons of the appointed daughter). Whereas in the case of plurality of sons all sons would succeed equally, in the case of appointment of a daughter, other daughters and their sons alongwith the wife would get excluded. To prevent this kind of inequality which would arise among the daughters and daughter's sons, the practice of appointing a single daughter as a putrika to raise an issue came to be abandoned in course of time when people were satisfied that their religious feelings were satisfied by the statement of Manu that all sons of daughters whether appointed or not had the right to offer oblations and their filial yearnings were satisfied by the promotion of the daughter's sons in the order of succession next only to the son as the wife and daughters had been interposed only as limited holders. [49F- H, 50A-C] Ghanta Chinna Ramasubbayya & Anr. v. Moparthi Chenchuramayya, 74 I.A. 162, followed.
(4) It is incorrect to suggest that the theory of "a practice once recognised by law becoming obsolete" was unknown and that it would continue to be in existence until it was taken away by a competent legislature. The court can declare it to be so. [53G] Shiromani & Ors. v. Hem Kumar & Ors., [1968] 3 S.C.R. 639, applied.
(5) The contention that the rule against the appointment of a daughter by a Hindu to beget an issue for himself in Kali age enunciated by Saunaka and others should be treated as only directory and if any person appointed a daughter for that purpose in contravention of that rule still her son would become "putrika-putra" of the person so appointing, with all the privileges of a putrika putra is highly tenuous. Where there is predominant opinion of commentators supporting its non-existence in the last few centuries extending to a period, in the instant case, prior to the life of Raja Dhrub Singh and there are good reasons for the Hindu Society abandoning it, it would be inappropriate to resurrect the practice. [58E-F, 61A-C] Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma
(6) The evidence on record makes it clear that the family of Raja Dhrub Singh was governed by the Benaras School of Hindu Law and not by the Mithila School. Further, the material on record is not sufficient to lead to the conclusion that the institution of putrika putra was in vogue during the relevant time even amongst persons governed by the Mithila School. Throughout India including the area governed by the Mithila School, the practice of appointing a daughter to raise an issue (putrika putra) had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika putra. In fact Raja Dhrub Singh as found by the High Court, had not appointed his daughter as a putrika to beget a putrika putra for him. It follows that the appellants who claim the estate on the above basis cannot succeed. [62F-G, 63F] The applicability of the above rule to Nambuderies of Kerala is however not decided. [62G-H] 4 & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 114-119 of 1976.
From the Judgment and Decree dated 15-12-1972 of the Patna High Court in 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 in CA Nos. 114-119 of 1976.
V. M. Tarkunde, U. R. Lalit, K. K. Jain, D. Goburdhan and P. P. Singh for Respondents 5-22 in CA Nos. 114-115/76.
L. M. Singhvi (Dr.), U. P. Singh and S. S. Jha for the Respondents in CA 114-119/76.
The Judgment of the Court was delivered by VENKATARAMIAH, J. The above six appeals by certificate and Civil Appeals Nos. 494-496 of 1975 arise out of a common judgment dated December 15, 1972 of the High Court of Judicature at Patna passed in First Appeals Nos. 85 to 87, 130, 131 and 134 of 1966. After the above six appeals and Civil Appeals Nos. 494-496 of 1975 were heard together for some time, 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 the above six appeals. The further hearing of Civil Appeals Nos. 494-496 of 1975 is deferred.
The question which arises for our consideration in the above Civil Appeals Nos. 114-119 of 1976 is whether the appellants and others either claiming under the appellants or alongwith them are entitled to an estate popularly known as 'Bettiah Raj' which was under the management of the Court of Wards, Bihar. The last male holder of the said estate, Maharaja Harendra Kishore Singh Bahadur died issueless on March 26, 1893 leaving behind him two widows, Maharani Sheo Ratna Kuer and Maharani Janki Kuer. Maharani Sheo Ratna Kuer who succeeded to the estate of Maharaja Harendra Kishore Singh on his death as his senior widow died on March 24, 1896 and on her death Maharani Janki Kuer became entitled to the possession of the estate. Since it was found that Maharani Janki Kuer was not able to administer the estate, its management was taken over by the Court of Wards, Bihar in the year 1897. Maharani Janki Kuer who was a limited holder of the estate died on November 27, 1954. On her death, disputes arose amongst several persons who were parties to the suits 5 out of which the above appeals arise regarding the title to the 'Bettiah Raj' estate. The State of Bihar, however, claimed that none of the claimants was the heir of the last male holder and that since there was no heir at law as such at the time when the limited estate of Maharani Janki Kuer came to an end on her death, the entire estate alongwith the net income which the Court of Wards had realized from it became the property of the State of Bihar by virtue of the rule of escheat. We shall refer to the respective submissions of the parties at a later stage.
It is not disputed that Raja Ugra Sen, the founder of the 'Bettiah Raj' was governed by the Benares School of Mitakshara law as his family had migrated from the South Western part of the present State of Uttar Pradesh to the State of Bihar although in the course of the pleadings, there is a suggestion that the family was also being governed by the Mithila School of Mitakshara which was in force in the State of Bihar.
The question for decision in the instant case may no doubt ultimately appear to be a simple one but in order to determine the said question, it is necessary to relate the facts which spread over nearly three centuries and refer to a number of Smritis, commentaries and decisions.
The major part of the estate of 'Bettiah Raj' is situated in Champaran District of the State of Bihar. Some of its properties are situated in the State of Uttar Pradesh also. The principality known as 'Bettiah Raj' was established by Raja Ugrasen in or about the middle of the 17th century. It was then known as Reasut of Sirkar Champaran consisting of four pergunnahs known as Majhwa, Simrown, Babra and Maihsi. It was an impartible estate. Raja Ugrasen was succeeded by his son, Raja Guz Singh in the year 1659. Raja Dalip Singh, son of Raja Guz Singh came to the gaddi in the year 1694 and he was succeeded by his son, Raja Dhrub Singh in the year 1715. Raja Dhrub Singh died in 1762 without a male issue but leaving a daughter by name Benga Babui, who had married one Raghunath Singh, a Bhumihar Brahmin of Gautam gotra. It is said that he had another daughter also, but it is not necessary to investigate into that fact in these cases. On the death of Raja Dhrub Singh who was a Jethoria Brahmin of the Kashyap gotra, his daughter's son (Benga Babui's son), Raja Jugal Kishore Singh entered into possession of the estate of 'Bettiah Raj' and was in possession thereof at the date when the East India Company assumed the Government of the province. On the assumption of the Government of Bengal by the East India Company, Raja Jugal Kishore Singh offered some resistance to their 6 authority and the Company's troops were despatched to enforce his submission. Raja Jugal Kishore Singh fled into the neighbouring State of Bundelkhand and his estates were seized and placed under the management of the Company's officers. During the absence of Raja Jugal Kishore Singh, Sri Kishen Singh and Abdhoot Singh who were respectively sons of Prithi Singh and Satrajit Singh, younger brothers of Raja Dalip Singh, found favour with the East India Company.
After some negotiations, the Government decided to allot the zamindari of Majhwa and Simrown pergunnahs which formed part of 'Bettiah Raj' estate to Raja Jugal Kishore Singh and to leave Babra and Maihsi in possession of Srikishen and Abdhoot Singh. On his return, Raja Jugal Kishore Singh accepted the decision of the East India Company which was formally announced on July 24, 1771 in the following terms:- "The Committee of Revenue having approved of the reinstatement of Raja Jugal Kishore, we have now granted to him the zamindari of Majhwa and Simrown pergunnahs, and have settled his revenue as follows..." Accordingly, Raja Jugal Kishore Singh executed a kabulyat in accordance with the terms imposed by the Government under the grant and got into possession of pergunnahs Majhwa and Simrown. He was again dispossessed in the following year as he failed to pay the Government revenue. Srikishen and Abdhoot refused to execute a kabulyat for the two other pergunnahs alone and they were also dispossessed. The entire Sirkar thus passed into the possession of the Government and was held by farmers of revenue on temporary settlements until the year 1791. Raja Jugal Kishore Singh received an allowance for main- tenance from the Government and died in or about the year 1783 leaving a son, Bir Kishore Singh. Thereafter on October 10, 1789, Mr. Montgomerie, the then Collector, initiated fresh proceedings regarding the settlement of Sirkar Champarun, the estate in question, and on September 22, 1790, the Governor-General-in-Council (Lord Cornwallis) addressed the following letter to the Board of Revenue:- "It appearing from our proceedings that the late Raja Jugal Kishore was driven out of the country for acts of rebellion, and upon his being allowed to return into the company's dominions, that the late President and Council thought proper to divide the zamindari of Champarun, allotting to Jugal Kishore the districts of Majhwa and Simrown, and to Srikishen Singh and Abdhoot Singh those of Maihsi and Babra, we direct that the heirs of the late Raja Jugal Kishore and Srikishen Singh and Abdhoot Singh be respectively restored to the possession and management of the 7 above districts (with the exception of such parts thereof as may belong to other zamindars or taluqdars, being the proprietors of the soil, who are to pay their revenues immediately to the Collector of the district), and that the decennial settlement be concluded with them agreeably to the General Regulations." All the parties were dissatisfied with the above decision. Bir Kishore Singh who claimed to be entitled to the entire Sirkar Champarun, however, in obedience to the orders of the Governor-General took possession of the two pergunnahs Majhwa and Simrown allotted to him and gave in his agreements for the settlement of them and at the same time prayed that he might be put into possession of the other two pergunnahs also. Srikishen and Abdhoot also claimed the entire estate on the ground that Raja Jugal Kishore Singh was not a member of the family and had no title to the estate as "by the Hindu Shastra the female branch is not entitled to a share of the estate, much less the whole." They accordingly at first refused to give in their kabulyats for the pergunnahs Maihsi and Babra; but on Mr. Montgomerie's advice they ultimately did so under protest and were placed in possession of those two pergunnahs. Separate dowl settlements of Government revenue on the mahals in pergunnahs Majhwa and Simrown and on those in pergunnahs Maihsi and Babra were made with and accepted by Bir Kishore Singh and by Srikishen and Abdhut respectively. The Sirkar Champarun was thus divided de facto into distinct zamindaris to be held by the grantees at revenues allotted to each of them separately. Then started the first phase of judicial proceedings which even now continue to be devil the estate which Raja Bir Kishore Singh acquired pursuant to the orders of Governor-General-in- Council. On the 6th day of May, 1808, Ganga Prasad Singh, the eldest son of Raja Srikishen Singh, who had died by then, instituted a suit in the Zila Court of Saran claiming upon a plea of title by inheritance to recover from Raja Bir Kishore Singh possession of pergunnahs Majhwa and Simrown and certain salt mahals all of which were formerly part of Sirkar Champarun on the following allegations; that in the year 1762 upon due consideration of right to succession as established in the family, Raja Dhrub Singh had made over while he was still alive the rajgy of the Sirkar of Champarun to his father, Raja Srikishen Singh, son of Prithi Singh and at the same time executed in his favour a deed of conveyance of the rajgy and the milkeut of the estate comprising the whole of the Sirkar aforesaid and gave him entry into the zamindari. He further alleged that when in the year 1763 the British Government was established, the lands comprised in the said Sirkar were attached but that Raja Srikishen Singh continued to receive the malikana and other rights annexed to 8 the zamindari upto 1770 and that in the following year, the settlement of the whole Sirkar was made with him and from the year 1772 to 1790 although the business of the Sirkar was conducted by the Amins and Mootahdars appointed for the purpose and Commissioner appointed temporarily for the collection of the revenue and at other times, his father, Raja Srikishen received the malikana. He then proceeded to state the manner in which, upon the formation of the decennial settlement in 1790, Raja Srikishen was deprived of the possession of the pergunnahs which he claimed to recover and alleged certain fraudulent practices whereby possession had been obtained by Raja Bir Kishore Singh. The suit was transferred from the Zillah Court of Saran to the Provincial Court of Patna. The suit was contested by Raja Bir Kishore Singh. In the course of the written statement, his counsel inter alia pleaded:- "The whole of the above statement of plaintiff is both false and fraudulent for the real fact is that the Majhwa, Simrown, Maihsi and Babra pergunnahs forming the Champarun Sirkar were the rajgy, the zamindary, and the milkeut of Raja Dhrub Singh, an ancestor of my client and the said Raja held the sole possession of them without foreign interference or participation. It is necessary to state that he had no son born to him;
but Raja Jugal Kishore Singh, the father of my client was his grandson and the issue of a daughter he had by his senior Rani, Raja Dhrub Singh aforesaid having adopted Raja Jugal Kishore Singh, the father of my client, at the time of his birth, conducted the ceremonies of his adoption and marriage in the usual manner, and having after wards given him the tilak he established him upon the rajgy of the whole of the Champarun Sirkar".
The Provincial Court dismissed the suit by its judgment dated December 29, 1812 solely on the ground of limitation whereupon Raja Dindayal Singh (the legal representative of the original plaintiff, Raja Ganga Prasad Singh, who died in the meanwhile) filed an appeal before the Sadar Diwani Adalat during the pendency of which Raja Bir Kishore Singh died (in 1816) and was succeeded by his elder son, Raja Anand Kishore Singh. The appeal was dismissed on July 9, 1817. In its elaborate judgment, the Sadar Diwani Adalat rejected the case of the plaintiff in that suit relating to the conveyance of the rajgy by Raja Dhrub Singh in favour of Raja Srikishen Singh holding that the document relied upon was a forgery. The above decision of the Sadar Diwani Adalat was affirmed by the Judicial Committee of the Privy Council in Rajah Dundial Singh & Ors. v. Rajah Anand 9 Kishore Singh(1) by its judgment dated December 5 and 7, 1837. The Judicial Committee affirmed the judgment of the courts below on the sole ground of limitation.
Raja Anand Kishore Singh continued on the Gaddi and in 1837, the hereditary title of Maharaja Bahadur was conferred upon him. Upon his death in 1838, without any issue, he was succeeded by his younger brother, Maharaja Bahadur Nawal Kishore Singh. Maharaja Bahadur Nawal Kishore Singh had two sons, Rajendra Kishore Singh and Mahendra Kishore Singh and upon his death in the year 1855, Maharaja Bahadur Rajendra Kishore Singh succeeded to the estate. Maharaja Bahadur Rajendra Kishore Singh died in 1883 and his brother Mahendra Kishore Singh having pre-deceased him, he was succeeded by Maharaja Bahadur Harendra Kishore Singh who as stated earlier was the last male holder of the estate and died issueless on March 26, 1893 leaving behind him two widows, Maharani Sheo Ratna Kuer and Maharani Janki Kuer. So great was the esteem in which Maharaja Harendra Kishore Singh was held by the Government that the Lt. Governor of Bengal came to Bettiah personally to offer his condolence. The occasion was used by Raja Deoki Nandan Singh (one of the great grandsons of Raja Srikishen Singh) to put forward his claim to the Bettiah Raj. On April 11, 1893, he presented a memorial to the Lt. Governor claiming that the late Maharaja was his "Gotra Sapinda". In the memorial, he stated thus:
"Raja Dhrub Singh had no issue. Therefore, according to the provisions of the Hindu Law he converted his daughter's son Jugal Kishore Singh who belonged to the Gautam Gotra to Kashyap Gotra and then adopting him as his son appointed him to be his successor. The Maharaja Bahadur was in the 5th lineal descent from Jugal Kishore Singh, the petitioner is in the 4th lineal descent from Raja Srikishen Singh.. That under the provisions of Kulachar law Your Honour's humble petitioner is the legal heir and successor of the deceased Maharaja and.. fully capable of managing the Raj." A reading of the above extract of the memorial shows that the case put forward by Raja Deoki Nandan Singh was directly contrary to the case put forward by his predecessor in the suit of 1808. Whereas in the earlier suit, his predecessor had pleaded that Raja Jugal Kishore Singh was the daughter's son of Raja Dhrub Singh and was not, therefore a member of the family of Raja Dhrub Singh, Raja Bir Kishore Singh had pleaded that Raja Jugal Kishore Singh having been adopted by 10 Raja Dhrub Singh was a member of the family of Raja Dhrub Singh. In the above said memorial, it was pleaded by the successor of the plaintiff in the suit of 1808 that Raja Jugal Kishore Singh who belonged to Gautam Gotra had been adopted by Raja Dhrub Singh who belonged to Kashyap Gotra and had been appointed by him as his successor.
On the death of Maharaja Harendra Kishore Singh, the estate came into the possession of his senior widow, Maharani Sheo Ratna Kuer. Within about two years from the date of the death of Maharaja Harendra Kishore Singh, a suit was instituted in Title Suit No. 139 of 1895 on the file of the Subordinate Judge of Tirhoot by Ram Nandan Singh, fifth in descent from Raja Ganga Prasad Singh (who was the plaintiff in the suit of 1808) against Maharani Sheo Ratna Kuer claiming the estate of Raja Harendra Kishore Singh. The main pleas raised by him in the suit were that the succession to the Bettiah Raj was governed by the custom of male linear primogeniture; that females were excluded from succeeding to the Raj; that Raja Jugal Kishore Singh had been adopted by Raja Dhrub Singh as his son and that he being an agnate was entitled to the possession of the estate of Maharaja Harendra Kishore Singh. Another suit viz. Title Suit No. 108 of 1896 was filed by Girja Nandan Singh whose father Deo Nandan Singh had submitted the memorial to the Lt. Governor of Bengal on April 11, 1893. This Girja Nandan Singh was fourth in descent from Doostdaman Singh, a younger brother of Raja Ganga Prasad Singh and while supporting the stand of the plaintiff, Ram Nandan Singh in the Title Suit No. 139 of 1895 on the point of Raja Jugal Kishore's adoption by Raja Dhrub Singh and exclusion of females from succession to the Raj, he pleaded that he was entitled to succeed to the Raj by the rule of propinquity, as all the branches of the family were joint in status, there being no custom of male linear primogeniture as put forward in the suit of Ram Nandan Singh i.e. in the Title Suit No. 139 of 1895.
Both the suits were contested by Maharani Sheo Ratna Kuer. During the pendency of the two suits, she died and Maharani Janki Kuer, the second widow of Maharaja Harendra Kishore Singh was brought on record as the defendant in both the suits.
Title Suit No. 139 of 1895 was decreed by the trial Court but on appeal by Maharani Janki Kuer, the said decree was set aside and the suit was dismissed by the High Court of Judicature at Fort William in Bengal by its judgment dated April 14, 1889. Against the decree of the High Court, Ram Nandan Singh filed an appeal before the Privy Council.
The Privy Council affirmed the decree of the High Court in Ram Nandan Singh v. Janki Kuer(1) The Privy 11 Council held that the two pergunnahs Majhwa and Simrown which were granted pursuant to the orders of Lord Cornwallis to Raja Bir Kishore Singh became the separate property of Raja Bir Kishore Singh free from any coparcenery right of succession of the branches of the family then represented by Srikishen and Abdhoot. They held that from the letter of Lord Cornwalis dated September 22, 1790 extracted above, it was clear that Raja Jugal Kishore Singh had been driven out from the country for the acts of rebellion and that the Government was at liberty to divide the Sirkar into two portions and to grant one portion to Raja Bir Kishore Singh and another portion to Srikishen and Abdhoot in direct exercise of sovereign authority. It further held that the grants so made by the Government proceeded from grace and favour alone. It was further held that the estate which was granted in favour of Raja Bir Kishore Singh became his separate and self-acquired property though with all the incidents of the family tenure of the old estate as an impartible Raj Consequently, the plaintiff was not entitled to claim it on the basis of the custom of male linear primogeniture. The Privy Council also held that there was no inconsistency between a custom of impartibility and the rights of females to inherit and therefore, Maharani Sheo Ratna Kuer and after her Maharani Janki Kuer could succeed to the estate of their husband, Maharaja Harendra Kishore Singh and remain in possession thereof. The Privy Council, however, declined to decide the question whether Raja Jugal Kishore Singh had been adopted by his maternal grandfather, Raja Dhrub Singh or became his son and a member of his family by some customary mode of affiliation i.e. as Putrika Putra and left the question open in the following terms:- "There remains only the issue whether Raja Jugal Kishore was adopted by his maternal grandfather Raja Dhrub Singh, or became his son and a member of his family by some customary mode of affiliation. The determination of this issue against the appellant would be fatal to his case, because in that case he would not be able to prove that he was of the same family as the late Sir Harendra. The learned judges have not found it necessary for the decision of the present case to decide this issue, and their Lordships agree with them in thinking that it is the better course not to do so, because the same issue may hereafter arise for decision between different parties." The other suit 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.
12 A few years later, one Bishun Prakash Narain Singh, fifth in descent from Abdhoot Singh also filed a suit in Title Suit No. 34 of 1905 in the court of the Subordinate Judge of Chapra, claiming title to the estate of Maharaja Harendra Kishore Singh on the footing that his branch of the family was joint in status with Maharaja Harendra Kishore Singh and so he was entitled to succeed to him under the rules of survivorship. That suit failed in all the courts including the Privy Council whose judgment is reported in Rajkumar Babu Bishun Prakash Maraain Singh 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 Ugrasen Singh (died 1659) | Raja Gaj Singh (died 1694) | -------------------------------------------------- | | | Raja Daleep Singh Pirthi Singh Satrajit Singh (died 1715) (dead) (dead) | | | | | Bishun Prakash Raja Dhrub Singh Srikishen Singh Narayan Singh (died 1762) (dead) (Plaintiff) | | (Fifth in descent | | from Satrajit | | Singh) Daughter's son --------------------------- (Putrika Putra) | | Raja Jugal Kishore Ram Nandan Girja Nandan Singh (died 1785) Singh Singh | (Defendant (Defendant | No. 2) No. 3) Raja Jugal Kishore (Fifth in (Fourth in Singh (died 1816) descent from descent from | Srikishen Singh) Srikishen Singh) | ---------------------- | | Maharaja Anand Maharaja Nawal Kishore Singh Kishore Singh (died 1838) (died 1855) | -------------------------- | | Maharaja Rajendra Mahendra Kishore Singh Kishore Singh (died 1883) (died before his | brother) | Maharaja Sir Harendra Kishore Singh, who died childless on 26th March, 1893, leaving (1) Rani Sheoratan Koer died (2) Rani Janki Koer Defendant No. 1 13 It should be mentioned here that in none of the suits- Title Suit No. 139 of 1895, Title Suit No. 108 of 1896 and Title Suit No. 34 of 1905 referred to above, the question whether Raja Jugal Kishore Singh had become a member of the family of Raja Dhrub Singh either by virtue of adoption or as Putrika Putra (appointed daughter's son) was decided even though the plaintiff in each of the above suits had raised such a plea.
As mentioned earlier after Maharani Janki Kuer succeeded to the estate of Maharaja Harendra Kishore Singh on the death of Maharani Sheo Ratna Kuer, the management of the estate was taken over by the Court of Wards, Bihar in 1897, a declaration being made that Maharani Janki Kuer was incompetent to manage the estate. Since the properties of the estate were spread over both in the State of Bihar and in the State of Uttar Pradesh, the Bihar properties came to be managed by the Court of Wards, Bihar while those in Uttar Pradesh were being managed by the State of Uttar Pradesh through the Collector of Gorakhpur. Maharani Janki Kuer took up her residence at Allahabad where she eventually died childless and intestate on November 27, 1954. Shortly after her death on December 6, 1954, the State of Bihar made an application before the Board of Revenue, Bihar praying that the estate of Maharaja Harendra Kishore Singh which was held by Maharani Janki Kuer as a limited heir and managed by the Court of Wards and the Government of Uttar Pradesh, as stated above should be released from the management of Court of Wards and handed over to the Bihar State Government since the State of Bihar had become entitled to the estate by virtue of the rule of escheat, as there was no heir of the last male holder who could lay claim to it. Upon this application, the Board of Revenue directed the issue of a Notification which was published in the Official Gazette calling upon interested parties to prefer their claims, if any, to the properties comprised in the estate. In pursuance of this Notification about one dozen persons came forward, some of whom claimed to be entitled to the stridhana and personal properties of late Maharani, such as cash, jewellery etc.; some others claimed to be entitled to maintenance allowance out of the estate while some others claimed the entire estate on the footing that the title to the estate had passed to them by succession which opened upon the death of Maharani Janki Kuer. Amongst the persons who thus claimed title to the estate, mention may be made of Bhagwati Prasad Singh of village Baraini, in the District of Mirzapur (Uttar Pradesh) and Suresh Nandan Singh of Sheohar.
The Board of Revenue, however, declined to release the estate in favour of any of the claimants and on January 18, 1955 passed an order to the effect that the Court of Wards would retain 14 charge of the properties comprised in the estate until the dispute as to its succession was determined by a competent civil court. Thereafter one Ram Bux Singh instituted a suit being Title Suit No. 3 of 1955 on the file of the Civil Judge at Varanasi claiming title to the estate. That suit was, however, allowed to be withdrawn with the permission of the court.
Subsequently came to be instituted Title Suit No. 44 of 1955 on the file of the Subordinate Judge at Patna by Suresh Nandan Singh. On his death, his son, Davendra Nandan Singh and his widow Ram Surat Kuer were brought on record as plaintiffs. That suit was dismissed alongwith two other suits with which alone we are concerned in these appeals reference to which will be made hereafter. Since the plaintiffs in the above suit were also defendants in the said two other suits, the plaintiffs therein filed three First Appeals Nos. 169, 170 and 171 of 1966 before the High Court of Patna against the decrees passed in the three suits. All the aforesaid three appeals were dismissed for non-prosecution by the High Court. We are, therefore, not concerned with the claim of the plaintiffs in that suit in these appeals.
The two other suits that were filed were Title Suit No. 25 of 1958 and Title Suit No. 5 of 1961. Title Suit No. 25 of 1958 was filed by Ambika Prasad Singh and others claiming the estate on the basis that Raja Jugal Kishore Singh succeeded to the gaddi of Sirkar Champarun as the adopted and affiliated son and successor of Raja Dhrub Singh and not as his daughter's son as alleged subsequently by some others; that the last male holder of the estate was Maharaja Harendra Kishore Singh, the great grandson of the said Raja Jugal Kishore Singh and that plaintiff No. 1 in the suit, Ambika Prasad Singh being nearest in degree among the reversioners to the last male holder to Maharaja Harendra Kishore Singh as the descendent of Satrajit Singh, the full brother of Raja Dalip Singh was the legal heir to the estate in question. It was pleaded that plaintiffs Nos. 2 and 4 to 8 and 10 to 13 being next in degree to the plaintiff No. 1 and plaintiff No. 14 being the wife of plaintiff No. 7 and plaintiff No. 9 being the mother of plaintiffs Nos. 10 to 13 had also joined the suit in order to avoid multiplicity of suits and conflict of interest. It was also alleged that there was an agreement amongst some of the plaintiffs entered into on September 22, 1955 to claim the estate jointly and that subsequently the said agreement had been repudiated and a fresh family arrangement had been entered into by the plaintiffs which was bonafide settling their claims to the estate. Under the said family arrangement, it had been agreed that the estate in the event of their succeeding in the suit should be distributed amongst 15 them in accordance with the terms contained therein. They claimed that in any event, the plaintiffs in the said suit alone were entitled to the estate and no others.
The next suit with which we are concerned in these appeals is Title Suit No. 5 of 1961 which was filed by Radha Krishna Singh and others. The case of the plaintiffs in this suit was that Raja Dhrub Singh died leaving behind him two daughters viz. Benga Babui and Chinga Babui; that Benga Babui was married to Babu Raghunath Singh of Gautam Gotra who was by caste a Bhumihar; that Raja Dhrub Singh had become separated from his other agnatic relations, namely the heirs of Prithvi Singh of village Sheohar and Satrajit Singh of village Madhubani; that on his death which took place in 1762, Raja Jugal Kishore Singh succeeded him as his daughter's son and that plaintiffs 1 to 8, sons of Bhagwati Prasad Singh who belonged to the family of Raghunath Singh were the nearest heirs of the last male holder, Maharaja Harendra Kishore Singh. In substance, their case was that Raja Jugal Kishore Singh who succeeded to the estate of Raja Dhrub Singh continued to be a member of his natural father's family and had not become either by adoption or by affiliation a member of the family of Raja Dhrub Singh. It was further alleged that plaintiffs 1 to 8 were men of poor means and could not arrange for money to fight out the litigation and they, therefore, had conveyed one-half of their right in the suit estate under a registered sale deed dated December 12, 1958 in favour of plaintiffs 9 to 15. In view of the said deed, according to the plaintiffs in the said suit, plaintiffs 1 to 8 were entitled to one-half of the estate and the other half belonged to plaintiffs 9 to 15. On the above basis, Title Suit No. 5 of 1961 was filed by the plaintiffs therein for a declaration of their title.
The plaintiffs in Title Suit No. 44 of 1955 were impleaded as defendants in Title Suit No. 25 of 1958 and Title Suit No. 5 of 1961. The plaintiffs in Title Suit No. 25 of 1958 were impleaded as defendants in the other suits. Similarly the plaintiffs in Title Suit. No. 5 of 1961 were impleaded as defendants in the two other suits. The State of Bihar which had preferred its claim on the basis of the rule of escheat was also impleaded as defendant in each of the three suits. The defendants in each of the suits other than the State of Bihar denied the claim of the plaintiffs in that suit. The State of Bihar pleaded in all the three suits that none of the plaintiffs was an heir of the last male holder.
The Additional Subordinate Judge, Patna who tried all the three suits together dismissed all of them by his judgment dated February 15, 1966. The principal issues which arose for decision before the trial court were:
(1) Was Raja Jugal Kishore Singh the Putrika-Putra of Raja Dhrub Singh by appointed daughter and affiliated as such as 16 alleged by the plaintiffs in Title Suit No. 44 of 1955 and Title Suit No. 25 of 1958? (2) Was succession to Bettiah Estate governed by the Mithila or the Benares School of Hindu Law? (3) Was the Bettiah Estate self-acquired or the joint property of Raja Jugal Kishore Singh? (4) Was the succession to the Bettiah estate governed by the rule of primogeniture? (5) Whether any of the plaintiffs was the heir of the last male holder; and (6) Has the Bettiah estate vested in the State of Bihar by escheat? At the conclusion of the trial, the trial court held that the custom of taking a son as Putrika-Putra had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as the Putrika-Putra and, therefore, Raja Jugal Kishore Singh was not the Putrika- putra of Raja Dhrub Singh; that the succession to the estate of Maharaja Harendra Kishore Singh was governed by the Benares School of Hindu law; that the estate having been acquired by force of arms was the self-acquired property of Raja Jugal Kishore Singh; that the succession of the Bettiah estate was not governed by the rule of primogeniture; that in view of the finding that Raja Jugal Kishore Singh was neither putrika-putra nor was he affiliated to of family of Raja Dhrub Singh by adoption in any form, the plaintiffs in Title Suit No. 25 of 1958 and Title Suit No. 44 of 1955 could not claim to be the heirs of the last male holder:
that the plaintiffs in Title Suit No. 5 of 1961 had not established that they were the reversioners to the estate and as none of the plaintiffs in the three suits had established that they were entitled to the estate it had vested in the State of Bihar by virtue of the rule of escheat.
It is already stated that the three First Appeals Nos. 169 to 171 of 1966 filed on the file of the High Court by the plaintiffs in Title Suit No. 44 of 1955 were dismissed for non-prosecution. Aggrieved by the decree of the trial court, the plaintiffs in Title Suit No. 25 of 1958 filed First Appeals Nos. 130, 131 and 134 of 1966 on the file of the High Court of Patna and the plaintiffs in Title Suit No.
5 of 1961 filed First Appeals Nos. 85, 86 and 87 of 1966 on the file of the said Court. The above said six appeals were heard by a Bench of three learned Judges of the High Court viz. G. N. Prasad, J., A. N. Mukherji, J. and Madan Mohan Prasad, J., G. N. Prasad, J. held that the custom of taking a son as Putrika-Putra had become obsolete by the time Raja Dhrub Singh was alleged to have taken Raja Jugal Kishore Singh as putrika-putra and so Raja Jugal Kishore Singh had 17 not become a member of the family of Raja Dhrub Singh and that the plaintiffs in Title Suit No. 25 of 1958 had not therefore established their claim to the estate. He agreed with the finding of A. N. Mukherji, J. that the plaintiffs in Title Suit No. 5 of 1961 had established their title to the estate. A. N. Mukherji, J. held that the plaintiffs in Title Suit No. 5 of 1961 were entitled to succeed in their action and agreed with the finding of G. N. Prasad, J. that Raja Jugal Kishore Singh had not become a member of the family of Raja Dhrub Singh either as a putrika-putra or by adoption for the reasons given by G. N. Prasad, J. Madan Mohan Prasad, J. agreed with the opinions of G. N. Prasad and A. N. Mukherji, JJ. that the institution of putrika- putra had become obsolete during the life-time of Raja Dhrub Singh and that Raja Jugal Kishore Singh had not been taken as putrika-putra or in adoption by Raja Dhrub Singh. He however, did not agree with the opinion expressed by A. N. Mukherji, J. which had the concurrence of G. N. Prasad. J.
that the plaintiffs in Title Suit No. 5 of 1961 had established that the plaintiffs 1 to 8 in Title Suit No. 5 of 1961 were the nearest reversioners entitled to the estate. In view of the aforesaid opinions, the appeals filed by the plaintiffs in Title Suit No. 25 of 1958 were dismissed since all the three Judges were unanimously of opinion that Raja Jugal Kishore Singh had not become a member of the family of Raja Dhrub Singh either as putrika- putra or by adoption and all the appeals filed by the plaintiffs in Title Suit No. 5 of 1961 were allowed. In the result, Title Suit No. 5 of 1961 was decreed as prayed for Consequently the claim of the State of Bihar was negatived.
Aggrieved by the decree passed in the six appeals referred to above, the plaintiffs in Title Suit No. 25 of 1958 applied to the High Court for the issue of a certificate to prefer appeals to this Court. The State of Bihar also made a similar application. It should be mentioned here that in the course of the hearing of the appeals before the High Court, one of the contentions urged by the parties other than the plaintiffs in Title Suit No. 25 of 1958 was that the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr. 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 decision of the Privy Council that the institution of putrika-putra had become obsolete during the relevant period. It was contended by the plaintiffs in Title Suit No. 25 of 1958 that the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr. v. 18 Moparthi Chenchuramayya, Minor & Ors. (supra) was not binding on Indian courts after India became a Republic. The Division Bench which heard the applications for the issue of certificates being of opinion that the case of the plaintiffs in Title Suit No. 25 of 1958 involved a substantial question of law as to the interpretation of the Constitution viz. whether the decision of the Privy Council in Ghanta Chinna Ramasubbayya & Anr. v. Moparthi Chenchuranayya, 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 case involved substantial questions of law of general importance which in the opinion of the High Court needed to be decided by the Supreme Court. On the basis of the above certificates, plaintiffs in Title Suit No. 25 of 1958 filed Civil Appeals Nos. 114-119 of 1976 and the State of Bihar filed Civil Appeals Nos. 494-496 of 1975.
After the above appeals were filed the respondents in Civil Appeals Nos. 114-119 of 1976 who had succeeded in the High Court filed a petition before this Court to revoke the certificate issued by the High Court under Article 132(1) of the Constitution. When the above appeals were taken up for hearing alongwith the petition for revocation of the certificate, the appellants in Civil Appeals Nos. 114-119 of 1976 filed a Special Leave Petition under Article 136 of the Constitution requesting this Court to grant them leave to canvass questions other than those relating to the interpretation of the Constitution in support of their case.
We have heard the parties on the above Special Leave Petition also. As mentioned earlier, we propose to dispose of by this Judgment Civil Appeals Nos. 114-119 of 1975 and the Special Leave Petition referred to above.
At the outset it is to be noted that the appellants in Civil Appeals Nos. 114-119 of 1975 can succeed only if they establish that Raja Jugal Kishore Singh had become the son of Raja Dhrub Singh in a manner known to law. In the instant case even though there was some amount of ambiguity at some early stages of these proceedings in the trial court as to the true case of the appellants, finally they took the position that Raja Jugal Kishore Singh had become the son (putrika-putra) of Raja Dhrub Singh as the latter had appointed his daughter 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 Bihar and the other contesting parties claimed that the practice of appointing a daughter to beget a son who would be putrika-putra had become obsolete by the time such appointment was alleged to 19 have taken place in this case; that even if such a practice was in vogue, Raja Dhrub Singh had in fact not made any such appointment and lastly the appellants who claimed on the above basis were not the nearest reversioners of the last male holder. From the pleadings relevant for the purpose of these appeals, three questions arise for consideration:- (1) Whether the practice of appointing a daughter as putrika for begetting a son who would be putrika- putra was in vogue during the life-time of Raja Dhrub Singh? (2) If the answer to question No. (1) is in the affirmative, whether Raja Dhrub Singh had in fact appointed his daughter (the mother of Raja Jugal Kishore Singh) as his putrika? and (3) If the answers to questions Nos. (1) and (2) are in the affirmative, whether the appellants were the nearest reversioners to the last male holder- Maharaja Harendra Kishore Singh, if he had lived till the date on which the limited estate ceased i.e. till the death of Maharani Janki Kuer which took place on November 27, 1954? From the points formulated above, it is evident that if the appellants in these appeals 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 proposed to dispose of these and the connected appeals in two parts.
In order to determine whether the practice of taking a son as putrika-putra was prevalent at the time when Raja Dhrub Singh is alleged to have taken Raja Jugal Kishore Singh as putrika-putra, we have to examine the several texts and practices prevailing in India at the relevant point of time. According to Yajnavalkya, the sources of Hindu Dharma are those enumerated in the following text:- Shruti smritih sadacharah swasya cha priyamatmanah samyakasankalpajah kamo dharmmoolmidang smrittam.
(The sources of Dharma are described to be (1) the Vedas, (2) the Smritis, (3) the practices of good men, (4) what is acceptable to one's own soul, and (5) the desire produced by a virtuous resolves).
While interpreting the Smritis one difficulty which has to be encountered is the uncertainty about their chronology.
Another difficulty felt by many jurists while interpreting them is the existence 20 of conflicting texts, sometimes in the same Smriti. This appears to be on account of the successive changes in the views of society, which may have taken place over several centuries. Very often the prevailing practices and customs at a given point of time might be quite different from those obtaining some centuries before that time Maxims which have long ceased to correspond with actual life are reproduced in subsequent treatises, as pointed out by John. D. Mayne, either without comment or with a non-natural interpretation.
"Extinct usages are detailed without a suggestion that they have become extinct from an idea that it is sacrilegious to omit anything that has once found a place in the Holy Writ..
Another inference is also legitimate that while some Smritis modified their rules to provide for later usages and altered conditions of society, other Smritis repeated the previous rules which had become obsolete, side by side with the later rules. (See Mayne's Treatise on 'Hindu law and Usage' (1953 Edition) pp 20-21).
Etymologically, the word 'putrika' means a daughter (especially a daughter appointed to raise male issue to be adopted by a father who has no sons), and 'putrika-putra' means a daughter's son who by agreement or adoption becomes the son of her father (Vide Sanskrit-English Dictionary by Sir M. Monier-Williams). According to Hemadri, the author of Chaturvarga Chintamani (13th Century), a 'Putrika-putra' can be of four descriptions. The following passage appearing at page 1046 in Volume II, Part (4) of the Collection of Hindu Law Texts-Yajnavalkya-Smriti with the commentaries of the Mitakshara etc. (translated by J. R. Gharpure) refers to the four kinds of putrika-putras:
"The putrika-putra is of four descriptions. (1) The first is the daughter appointed to be a son. (See Visishtha XVII. 15" Putrikaiveti ) (2) The next is her son. He is called "the son of an appointed daughter", without any special contract. He is, however, 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 like unto a son, as Prachetasa has declared: her offspring is termed a son of an appointed daughter: he offers funeral oblations to the maternal grand-father and to the paternal grandsire. There is no difference between a son's son and a daughter's son in respect of benefits conferred." (3) The third description of a son of an appointed daughter is the child born of a daughter who was given in marriage with an express stipulation as stated by Vasishtha 21 XVII.17. He appertains to his maternal grandfather as an adopted son. (4) The fourth is a child born of a daughter who was given in marriage with a stipulation in this form "the child who shall be born of her, shall perform the obsequies of both." He belongs as a son to both grandfathers. But in the case where she was in thought selected for an appointed daughter, she is so without a compact, and merely by an act of the mind.
(Manu Ch. IX 127 and 136), Hemadri quoted in Colebrocke." It is well known that in the ancient Hindu law, the right of a person to inherit the property of another depended principally on his right to offer pinda and udaka oblations to the other. The first person who was so entitled was the son. As time passed the concept of sonship was modified and by the time of Manu thirteen kinds of sons were known-aurasa son who was begotten on a legally wedded wife and twelve others who were known as secondary sons (putra prathinidhis) and Manu omits any reference to putrika-putra as such although in another place he observes :
Aputroanen vidhina sutang kurvit putrikam Yadpatyam Bhavedasyah Samepoothro bhavedithi (He who has no son may make his daughter in the following manner an appointed daughter (Putrika saying to her husband) `the male child born of her shall be my son').
Another reading of the same sloka gives the second part of the above sloka as `yadupathaya bhavadasthaya thanmasthathu sadhukarma' (The (male) child born of her shall perform my funeral rites).
Yathaivathma thatha puthrah puthren duhithasma Thasyamatmani thishthanthyam kathmanyo dhananghareth Manu IX 130 (A son is even as one's self, a daughter is equal to a son, how can another (heir) take the estate while (such daughter who is) one's self lives).
Yajnavalkya says that twelve sons including the legitimate son who is procreated on the lawfully wedded wife were recognized by law. Of them, it is said, the legitimate son is considered to be the primary son and others as secondary sons. The relevant text reads thus:
Aursodharmmapatnija statsamah putrikasutah Kshetrajah kshetra jatastu sagotrerentaren wa grihe prachanna uttpanno goodhjastu sutah smritah kanin kanyakajato matamah sutomatah 22 Akshatayang kshatayamba jaatah paunarbhavah sutah Dadyanmata pita wa yang sa putro dattako bhaweta Kritashcha tabhyang veekritah kritrimah syataswa- yangkritah dattatma tu swayang Datto garbevinah sahodhajah Utasristho grahyate yastu sopividhho bhawetsutah The above text is translated by S. S. Setlur in his book entitled `A complete Collection of Hindu law Books on Inheritance' thus :- "The legitimate son is one procreated on the lawful wedded wife. Equal to him is the son of an appointed daughter. The son of the wife is one begotten on a wife by a sagotra of her husband, or by some other relative. One, secretly produced in the house, is son of hidden origin. A damsel's child is one born of an unmarried woman : he is considered as son of his maternal grandsire. A child, begotten on a woman whose first marriage had not been consummated, or on one who had been deflowered before marriage, is called the son of a twice-married woman. He whom his father or his mother gives for adoption shall be considered as a son given. A son bought is one who was sold by his father and mother. A son made is one adopted by a man himself.
One, who gives himself, is self given. A child accepted, while yet in the womb, is one received with a bride. He who is taken for adoption having been forsaken by his parents, is a deserted son." `Aurasa' is the son procreated by a man himself on his wife married according to sacramental forms prescribed by Sastra. `Putrikaputra' is the son of an appointed daughter.
`Kshetraja' is the son begotten on the wife of a person by another person-sagotra or any other. `Gudhaja' is the son secretly born in a man's house when it is not certain who the father is. `Kanina' is the son born on an unmarried girl in her father's house before her marriage. `Paunarbhava' is the son of a twice married woman. `Dattaka' is the son given by his father or mother. `Krita' is the son bought from his father and mother or from either of them. `Kritrima' is the son made (adopted) by a person himself with the consent of the adoptee only. `Svayamdatta' is a person who gives himself to a man as his son. `Sahodhaja' is the son born of a woman who was pregnant at the time of his marriage.
`Apavidha' is a person who is received by another as his son after he has been abandoned by his parents or either of them. There is one other kind of son called `Nishada' who is the son of a Brahmin by a Sudra who is not referred to in the above quoted text of Yajnavlkya. While commenting on the above text, Vijnanesvara explains `putrika- 23 putra' in the Mitakshara (composed between 1070-1100 A.D.) as follows :- Tatasamah putrikasutah tatsamah aurasasamah putrikayah sutah ataevoursasamah, yathah vashisthah abhratrikang pradasyami tubhyang kanyamalangkritam asyang yo jayate putrah sah me putro bhawedititee athwa putrikaiv sutah putri kasutah sopyoursasamaev pitravayavanamalpatwata matravayavanang bahulyachha, Yathas vashishthah tritiyah putrah putrikaivetyarthah (The son of an appointed daughter (putrika-putra) is equal to him: that is equal to the legitimate son. The term 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 be my son.";
Or that term may signify a daughter becoming by special appointment a son. Still she is only similar to a legitimate son; for she derives more from the mother than from the father. Accordingly she is mentioned by Vasishtha as a son, but as third in rank. "The appointed daughter is considered to be the third class of sons.") (Vide 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 :
Pinddonshaharshchekshang poorvabhawe parah parah Among these, the next in order is heir and presents funeral oblations on failure of the preceding) as under :- Atekshang poorvoktanang putranang poorvasya poorvasyabhawe uttrah pindadhah shradhdong shaharo veditavyaah (Of these twelve sons abovementioned, on failure of the first, respectively, the next in order, as enumerated, must be considered to be the giver of the funeral oblation or performer of obsequies, and taker of a share or successor to the effects.).
Then Vijnanesvara says with reference to what Manu Smritis has stated about the right of the primary and secondary sons to succeed to the estate of a person thus:
"Manu, having promised two sets of six sons, declares the first six to be heirs and kinsmen; and the last to be not heirs, but kinsmen :
"the true legitimate issue, the son of a wife, a son given, and one made by adoption, a son of concealed origin, and 24 one rejected are the six heirs and kinsmen. The son of an unmarried woman, the son of a pregnant bride, a son bought, a son by a twice-married woman, a son self- given, and a son by a Sudra woman, are six not heirs but kinsmen." Thereafter he deals with the right of a woman to inherit the estate of one, who leaves no male issue. He says "that sons, principal and secondary, take the heritage, has been shown. The order of succession among all on failure of them, is next declared." And then quotes the following text of Yajnavalkya :- Patni duhitharaschaiva pithrau bhratarastatha tata suta gotraja bandhuh shisya sabrahmacharinah akshamabhawe poorvasya dhanbhaguttarottarah swaryathsya hyaputrasya sarv varnekshwayan vidhih (The wife, and the daughters also, both parents, brothers likewise, and their sons, gentiles, cognates, a pupil, and a fellow student: on failure of the first among these, the next in order is indeed heir to the estate of one who departed for heaven leaving no male issue. This rule extends to all classes).
Commenting on the above text, Vijnanesvara says:
Mkhyagaunsutha dhay grihrantitee nirupitam tekshambhawe sarwekshang dayadakrama uchyate, poorvokta dwadash putra yasyang na santi asavaputrah tashyaputrasya swaryatasya purlokang gatasya ghanbhaka ghangrahi akshang patnayadinamanukrantanang madhye poorvasya poorvashyabhawe uttar
