Theoretical Overview
Due to the emergence of various commentaries on SMRITI and SRUTI, different schools of thought arose. These schools have widened the scope of Hindu law and explicitly contributed to its development. The two major schools of Hindu law are as follows-
a) Mitakshara
b) Dayabhaga.
- Mitakshara School prevails throughout India except in Bengal. It is a running
commentary on the code of Yajnavalkya (Yajnavalkya Smriti).
- Dayabhaga school owes its origin to the Jimutvahana’s digest on leading Smritis. It is the supreme authority in Bengal and Assam.
MITAKSHARA
Mitakshara school is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them. The law of inheritance is principle of propinquity that is nearest to blood relation or consanguinity of blood which means, one who is nearest in blood relation succeeds. However, exclusion of female and preference to cognates.
Mitakshara is further divided into five sub-schools namely:
Benaras school
This school is prevalent in most of North India including Orissa except for Punjab. The school mainly focuses on Civil Law and the Law of Inheritance, including Women’s Inheritance Rights.
Mithila School
This school is prevalent in North Bihar. This school focuses on religious and civil duties. But in a few matters, it differs from Mitakshara School.
Bombay or Maharashtra School
Despite its name, this school is prevalent in the whole of Bombay, Gujarat including the parts where Marathi is spoken. The amazing thing about this school is that it’s one of the most liable ones among women’s Rights.
Dravida or Madras School
This school is prevalent in the entire southern part of India including Kerala, Mysore, and Madras. The famous matrilineal system of Marumakayam and Aliya Santhanam was followed in these regions.
Punjab law School
This school is prevalent in East Punjab and also parts of Rajasthan and J&K. It had established its own customs and traditions. The main commentaries of this school are viramitrodaya and its established customs.
DAYABHAGA
Dayabhaga schools predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of Hindu laws after Mitakshara. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance, and joint family. According to Kane, it was incorporated between 1090-1130 A.D.
Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and the inclusion of many cognates in the list of heirs, which was restricted by the Mitakshara school.
The law of succession under dayabhaga is based on the principle of religious efficacy or spiritual benefit. Person who confers more religious benefits on the deceased is preferred to those who confer less spiritual. It is often linked to the doctrine of linking Pindadan to the deceased
Mitakshara is a traditional school, whereas Dayabhaga is a reformist school
The Mitakshara and Dayabhaga Schools differed on important issues as regards the rules of inheritance. However, this branch of the law is now codified by the Hindu Succession Act, of 1956, which dissolved the differences between the two. Now, the main difference between them is the joint family system.
Mitakshara– Rights in the joint family property are acquired by birth, and as a rule, females have no right of succession to the family property. The right to the property passes by survivorship to the other male members of the family.
Dayabhaga– Rights in the joint family property are acquired by inheritance or by will, and the share of a deceased male member goes to his widow in default of a closed heir.
Important Differences
| Mitakshara | Dayabhaga |
| i) Right of a son by birth in theancestral property equal to the interestof his father. | i) A son is entitled to his ancestralproperty only on the death of hisfather. The father is the absoluteowner of his property in his lifetime |
| ii) A son becomes a coparcener rightafter his birth. His right is applicableto the property of his grandfather andgrand-grandfather. | ii) A son becomes a coparcener bythe death of his father. This right is notavailable within the property of hisfather, grandfather, or grand grandfather. |
| iii) Everyone is entitled to theproperty as a unit. Their shares arenot defined. They have only thecommodity of ownership. There isjoint tenancy. | iii) Everyone’s share is defined. Thereis tenancy-in-common. |
| iv) One cannot transfer his share tothe third party. | iv) One can transfer his share |
| v) The joint property can bepartitioned. In that case, it will bepartitioned as it was in the case of thefather | v) As the shares are defined, one caneasily partition with his share. |
Relevant Sections
1. Section 6 of the Hindu Succession Act, 1956– regulates intestate succession among Hindus. In 2005, Section 6 of the Act was amended to confer legal rights and liabilities upon daughters in the ancestral property by birth in a Hindu Undivided Family (‘HUF’), equivalent to that of a son.
Important Case Laws
1. Abdurahim v. Halimabai (1915) – In this case, the Court observed: “Where a Hindu family migrates from one part of India to another, prima facie, they carry with them their personal law, and if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted.”
2. Thammavenkata Subbamma v Thamma Rattamma (1987) – In this case, the Supreme Court held that Mitakshara Coparcenary is an essential characteristic of unity of ownership and community of interest. The undivided share exists indefinitely, the coparcener has some definite share in the coparcenary property, which increases with the death and decreases with the birth of any coparcener.
3. Poonam Mishra vs. Rajkumari Mishra (1995) – In this case, the court held that the property obtained subsequently has to be considered as self-acquired property however obtained with joint funds and must be exempt from partition.
4. Approvier v. Ram Subba Aiyer (1866) – In this case, the court held that no individual member of the joint family, while the property remains undivided, can predicate that he or any particular member, has a certain definite share of the joint and undivided property.
5. Moro Vishvanath v. Ganesh Vithal (1873) – In this case, the court said that the meaning of a co-parcenary under Mitakshara law is known as a unity of ownership. The coparcenary property’s possession is in the whole family of coparceners. No individual member of that family may predict a definite share of the joint and undivided property of the family, according to the true notion of an undivided family. His interest is a fluctuating interest, capable of being expanded by family deaths and reduced by family births.
Important Legal Maxims
1.Lex Loci – This maxim means “law of the place”. The principle that the law of the place giving rise to particular rights is the law that governs the rights of parties to a legal proceeding.
This maxim simply means the law of the place where an act is done or a transaction takes place. The general rule of Lex Loci is not applicable to Hindu Law. The Hindu Law is not a territorial law. In other words, it is not a “lex-loci” (law of Locality i.e., which applies only to a particular locality or State) but a “personal law”. It means that a Hindu, in whatever country he may be, is governed by Hindu Law in all personal matters. The territorial law of that country would not apply to the personal matters’ of that Hindu.
2. Factum Valet Quod Fieri Non Debuit – This maxim means “what ought not to be done becomes valid when done”.
This maxim means The doctrine of factum valet comes from a Roman Maxim ‘factum valet quod fieri non debuit’ and found its way into the Hindu law through the authors of Dayabhanga and was recognized by the followers of Mitakshara school. Factum valet means that an act that should not have been done becomes valid when it’s done. The idea that it is based on is that even a hundred texts or laws could not change the fact. In India, before the Hindu Marriage Act, of 1955 had come into place there was no specific law or regulation that provided guidelines with regard to the validity, capacity, ceremonial requirements, etc. of Hindu marriages.
Points to Remember
1. Originally there were no schools of Hindu Jurisprudence. Schools of Hindu Law came into being when different commentaries appeared to interpret the Smritis with reference to different local customs in different parts of India.
2. Mitakshara and Dayabhaga are the two important schools of Hindu Law that have given us the required information about the present legislated laws.
3. The Mitakshara has a very wide jurisdiction.
4. Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and the inclusion of many cognates in the list of heirs, which was restricted by the Mitakshara school.
5. The Mitakshara system is Conservative. It provides good security in times of difficulty as a member can rely on the joint family. However, sometimes a member can become a parasite. The Dayabhaga system is more liberal.
6. Among the two the Dayabhaga is more likely to last in modern times with the growth of individualism, individual enterprise, and economic compulsions.
