A. Pasayat, J.
1. In this appeal under the Letters Patent, legal heirs of one Asma Chandra Mohapatra, who was defendant No. 2 in a suit for partition have assailed correctness of decision rendered by a learned Single Judge of this Court, who dismissed their appeal which was originally filed by Rama Chandra Mohapatra. Judgment and decree of learned Subordinate Judge, Puri in C. S. No. 105 of 1976 I decreeing the suit for partition and allotting 1/3rd share in favour of plaintiff-respondent No. 1 were subject-matter of challenge in this Court in First Appeal No. 212 of 1976.
2. A brief reference to factual controversy and the respective stands of the parties would suffice.
The suit property belonged to Lingaraj Mohapatra, who died in the year 1970 leaving behind his widow Fulla Dibya (defendant Mo. 2)and two daughters Shradhamani Devi(defendant No. 1) and Ashamani Devi (plaintiff). The suit was filed seeking partition of the suit property wherein plaintiff claimed 1/3rd share in her favour conceding. 2/3rd shares in favour of defendants 1 and 2. In the plaint Rama Chandra Satpathy was cited as defendant; No. 3.The said defendant on receipt of notice filed an application to be arrayed as defendant, No. 4 alleging that his description as Rama Chandra Satpathy, son of Chintamani Satpathy was incorrect and erroneous, and he should have-been described as Rama Chandra Mohapatra, son. The application was allowed impleaded as defendant No. 4describing v, Rama Chandra Mohapatra. Defendants 5 to 8 are purcharers of portions of the suit property and defendant Nos. 9 and 10 are sons of the plaintiff in whose favour defendant No. 2 has settled her interest in the Plaintiff put up a claim that after death of Lingaraj in the year 1970 the three heirs, i. e., Lingaraj's widow, and two daughters were entited to 1/3rd share each as Lingarij had no son. Since it was no longer convenient and feasible to possess the property jointly, prayer for partition was made. Defendant No. 1 filed written statement refuting the claim of plaintiff. Her stand was that defendant No. 3 who is her natural son was taken as 'Putrika Putra' of Lingaraj and he is entitied to a share in the property Soft by Lingaraj Defendant No. 2 supported the' case of plaintiff and denied that Lingaraj had taken defendant No 3 as: 'Putrika Putra' at any time. Defendant No. 3 defendant No. 4 pleaded that since his birth he had been trested as 'Putrika Putra'-'by Lingaraj and his wife and therefore, under the Hindu ' Succession Act, -1368 (in short, 'the Succession Act') he is entitled to a share in the property left by Lingaraj, The contest in the suit was mainiy between; the. plaintiff and defendant No.3/defendant No. 4.
3. The primary question which arose for adjudication by the trial Court was whether defendant No. 3/defendant No. 4 .is entitled to a share in the property of Lingaraj as'Putrika Putra'. It was answered, in the negative. The suit was decreed as indicated above.
4. In the First Appeal, it was pleaded that the trial Court was not justified in holding that defendant No. 3/defendant No. 4 was not, entitied to claim share in the property of Lingaraj as his 'Putrika Putra'. The learned Single Judge observed that the concept, of 'Putrika Putra' to claim the property is obsolete one and, does not hold fined any longer. A feeble attempt was made to plead that defendantNo. 3/defendant No. 4 was treated as the son by Lingaraj and at some stages Lingaraj and his wife had stated that he was their adopted son. The said plea was turned down by the learned Single Judge with the view that the adoption of daughter's son was prohibited under Hindu Law prior to enactment ofHindu Adoption and, Maintenance. Act 1956 (In short,'the Act'). Being conscious; of that position, defendant No. 3 based his claim to the property solely on the basis of 'Putrika Putra'.
5. Mr. B.L.N. Swamy, learned counsel appearing for the appellants submitted that the position in Hindu Law has: notbeen properly kept in view by the learned Single Judge. In any event according to him, the plea of adverse possession has not been dealt with and that attached vulnerability' to the impugned judgment.' An application to amend the memorandum of appeal has been filed on 13.11-1936 i. e., on the date when the appeal was taken up for admission.
Mr. N.C. Panigrahi, learned, counsel appearing for the contesting respondent No. 1-plaintiff submitted that the concept of 'Putrika Putra' to claim the property is an obsolete one and the learned Single Judge has rightly rejected the plea.
6. Undisputedly the parties are governed by Mitakshara School of Hindu Law. In order to determine whether the practice of taking a son as 'Putrika-Putra' was prevalent, 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:
'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 4 virtuous resolve.
7. 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 of conflicting texts, sometime 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 Treaties on 'Hindu Law and Usages' (1953 Edition) dp. 20-21.
8. Etymologicaliy, 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 Hamadri, the author of Chaturvarga Chintamani (13th Century), a 'Putrika-putra' can be of four descriptions. The following passage appearing at page 1046 in Vol. II Part (4) of the Collection of Hindu Law Texts-Yajnavalkya-Smriti with the of commentaries of the Mitakshara etc. (translated by J. R. Gharpura) refers to the four kinds of putrika-putras:
'The Puttika-putra is of four descriptions. (1) The first is the daughter appointed to be a son, (See Vasishtha XVII). (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 in a daughter's. 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 grandsir. There is difference between a ' son's son. and a daughter's son in respect of benefits conferred. (3) The third description of 2 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 XVII, 17. He appertains to his maternal grand-father 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 grand-fathers.' . 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 Colebrooke.'
9. Absence of cases before Courts within living memory in which a claim had been preferred on the basis of affiliation in 'putrika-putra' from showed that the said practice had become obsolete.
10. Dr. Naresh Chandra Sen Gupta in his Tagore Law Lectures, 1950 on '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
'In later Smritis, the Putrika has lost all her importance. For already the daughter as such is mentioned by them as heir, irrespective 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 person. In Yajnavalkya the Putrika is barely mentioned, but the inheritance of the daughter after the widow is well-settled.
Obsolescence of Putrika
Now if a daughter and her son inherit as such and if every daughter's son, and not merely the Putrika's son inherits and, as in Baudhayana, offers oblations to the maternal grandfather assuch, all practical utility of Putrika disappears and the institution naturally ceases to exist.
The obsolescence of this custom in the time of Manu and Vishnu and others appears from the absence of further details about this institution in any of these Smritis.
Manu, indeed true to its character as an encyclopaedic sight of all texts gives us several texts relating to the Putrika, which belong to different strata of the history of law. It is singular, however, that in his enumeration of the twelve kinds of secondary sons (IX, 159, 160} he omits any reference to the Putrika or her son. '.. In another place (IX, 123 at seq.) However, he deals with the Putrika's son, but his treatment of the subject is mixed up with that of the daughter's son generally. As already pointed out, he lays down the law made by a contract at the time of marriage (IX, 127), but immediately after that, he follows with a text laying down that a daughter's son as such inherits to a sonless pindas both to the father and the maternal (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 Putrika's son offers pindas to his maternal ancestors, while in IX, 135 he says that on the Putrika dying sonless, her husband inherits to her, thus indicating that a true husband and wife relations 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 composition of all the texts of law which were current at the date of compilation in the name of Manu and that accordingly many texts are incorporated in it which had long become obsolete at that date, we shall be able to assess these texts at their proper value. ' It will then be seen that these texts, so far as the Putrika's son goes, do not lay downany thing which was not already laid down by Gautama, Vasistha and Baudhayana. The other texts, however, which give to the son of the daughter 'akrita va krita va 'pi' 'whether appointed or not' the same status as a Putrika's son, belong to later stratum already indicated in Visnu. These texts practically nullify the provisions about Putrika-putra who had evidently ceased to be an institution of any practical utility, so much so that he finds no place in Manu's enumeration of the twelve secondary sons. Later Smritis; beyond occasionally mentioning the Putrika-putra among the twelve kinds of sons do not speak of them at all.
The seal upon the obsolescence or 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 expurgatorious of laws forbidden in the Kali Age and mentions among others the recognition of sons other than Aurasa and Dattaka. This text, as the Smritichandrika, Parasara Madhava and others observe, makes 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.'
11. We are broadly in agreement with the following passage occurring in Wayne'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 modern law states :
'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 all in his favour. His equality in status with the aurasa son both for spiritual and temporal purposes was established from the earliest times and he had to offer pindas both to his father and to his maternal grand-father and he took the estate of his own father if he left no other son. In many respects, therefore, he was like the son of two fathers and it must have been increasingly felt that his father should not be deprived of the continuance of his own line. The son of the appointed daughter, in offering pindas to his mother, had to recite the gotra of his maternal grand-father, as in the putrikakarana marriage the gift of the girl was not complete. For religious purposes, this anomalous position of a son of two fathers must have been found to be unsatisfactory and, as a consequence, there was the repeated injunction not to marry brotherless maidens, which would make it difficult to secure suitable bridegrooms if the institution of putrika-putra 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 grandfather's property. Besides, the daughters other than the appointed daughter appear to have come into their own by the time of the Arthasastra of Kautilya. This must have led to the gradual recognition as heirs to the maternal grand-father of 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 also on tha 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.'
12. Now that the practice of appointment of a daughter as putrika has Become obsolete, all daughters and their, sons stand in the same position. This perhaps is the reason as to why such practice was given up. The above position was elaborately dealt with in an illuminating judgment of the apex Court in Shyam Sunder Prasad Singh and Ors. v. State of Bihar and Ors. : AIR1981 SC 178.
13. In view of the principles of law analysed above, the irresistible conclusion is correctness of the impugned judgment. The alternative plea relating to adverse possession does not appear to have been raised before the learned Single Judge. In any event the delayed attempt to amend the memorandum; of appeal after one year of filing the appeal without any semblance of explanation for the delayed approach, leads to the only conclusion that it is an afterthought and warrants rejection.
The appeal is devoid of merit' and is dismissed
S.N. Phukan, C.J.
14. I agree.