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1996 Supreme(Ori) 228
IN THE HIGH COURT OF ORISSA
S.N. Phukan, A. Pasayat, JJ.
SMT. JAYANTI MOHAPATRA AND OTHERS - APPELLANT
Versus
SRIMATI ASHAMANI DEBI AND OTHERS - RESPONDENT
A.H.O. No. 62 of 1995
Decided On : 19-12-1996
B.L.N. Swamy, A.K. Rath, M.K. Sahoo and S. Dash, for the Appellant; N.C. Panigrahi, R.K. Rath and Debasis Misra for respondent No. 1, S.P. Misra, for respondent No. 2, M.R. Panda, G.R. Nai and S.K. Das for respondent 2/b, S.K. Padhi and B. Rath for respondent 2(a-1) to 2(a-7), Ramanath Panda, for respondent 2-C/5 to C/7 and S.C. Das for respondents 3, 5 and 10, for the Respondent
The practice of taking a son as "Putrika-Putra" to claim property is obsolete and not recognized under Hindu Law.
Headnote:
PUTRIKA-PUTRA - HINDU SUCCESSION ACT, 1956 - SECTION 15 - OBSOLETE PRACTICE - ADOPTION OF DAUGHTER'S SON - NOT RECOGNIZED UNDER HINDU LAW - CLAIM TO PROPERTY AS PUTRIKA-PUTRA REJECTED.
Fact of the Case:
The appellants, legal heirs of Asma Chandra Mohapatra, challenged the decision of a Single Judge of the Orissa High Court, who dismissed their appeal against a decree for partition of the suit property, allotting 1/3rd share in favor of the plaintiff-respondent. The primary issue was whether defendant No. 3/defendant No. 4, the natural son of Lingaraj Mohapatra, was entitled to a share in the property as "Putrika Putra".
Finding of the Court:
The Court held that the concept of "Putrika Putra" to claim property is an obsolete one and does not hold good any longer. The practice of taking a son as "Putrika-Putra" had become obsolete several centuries ago. The institution of "Putrika" along with various other kinds of secondary sons, except the "Dattaka", was void in the Kali Age.
Issues: 1. Whether the practice of taking a son as "Putrika-Putra" was prevalent in Hindu Law? 2. Whether defendant No. 3/defendant No. 4 was entitled to a share in the property of Lingaraj as his "Putrika Putra"?
Ratio Decidendi: 1. The Court relied on various texts and practices prevailing in India to conclude that the practice of taking a son as "Putrika-Putra" had become obsolete. 2. The Court observed that the absence of cases before Courts within living memory in which a claim had been preferred on the basis of affiliation in "putrika-putra" showed that the said practice had become obsolete.
Final Decision: The Court dismissed the appeal, upholding the decision of the Single Judge. The alternative plea relating to adverse possession was not considered as it was not raised before the Single Judge and the attempt to amend the memorandum of appeal after one year of filing the appeal was rejected as an afterthought.
JUDGMENT :
A. Pasayat, J. - 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 defendant No. 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 of Hindu 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: not been pro
