Schools of Hindu Law

 

Q. 12. There are two main schools of Hindu law, the Mitakshara and Dayabhaga. How do they differ from each other?

Or

What are the different Schools of Hindu Law? What are the differences between them? Discuss.

Or

What are main points of distinction between Mitakshara and Dayabhaga Law? Discuss.

 

Ans.

The Schools of Hindu law emerged as a result of the era of commentaries and digests. As regards the origin of the schools of Hindu Law, the Privy Council observed that "The remoter sources of Hindu Law ie the smritis are common to all the different schools. The process by which these schools have been developed seems to have been of this kind. Works universally or very generally received became the subject of subsequent commentaries. The commentator put his own gloss on the ancient text, and his authority, having been received in one and rejected in another part of India, schools with conflicting doctrines arose".

Schools of Hindu Law.-There are two main Schools of Hindu law, the Mitakshara and the Dayabhaga.

The Mitakshara by Vijnaneshvara or Vijnana Yogin is the most celebrated and authoritative of all the commentaries on the Yajnavalkya Smriti. The age of Vijnanesvara has been fixed by recent research to be the latter part of the 11th century.

 Under the Mitakshara School there sprang up four Schools,

(1) Mithila School,

(2) Banaras School,

 (3) Maharashtra or Bombay School, and

(4) Dravida or Madras School.

 The variance between the sub-divisions of the Mitakshara School are comparatively few and slight Except in respect of the Maharashtra School this division serves no useful purpose: nor does it rest upon any true or scientific basis. It is to a certain extent misleading as it conceals the fundamental identity of doctrine between the so-called Mithila, Banaras, Maharashtra or Dravida Schools and suggests that there are more differences than do really exist.

 

The Mitakshara is of supreme authority throughout India except in Bengal. The Dayabhaga is of supreme authority in Bengal. But even in Bengal the Mitakshara is still regarded as a very high authority on all questions in respect of which there is no express conflict between it and the Dayabhaga and the other work prevalent there.

 

The schools arose on account of different interpretations of Smritis by different authors. In Rutcheputty v. Rajendra, (1839) 2 MIA 132 it has been held by the Privy Council that the different schools of Hindu law have originated due to different local customs prevailing in different provinces of India. The commentators on the Smritis could not ignore the local customs and usages and while interpreting the texts, they incorporated different local customs.

 

Mitakshara is a commentary on Yajnavalkya-Smriti. It was written in the later part of eleventh century, and is prior to Dayabhaga. The Mitakshara brings together numerous smirits passages, explains away contradictions among them by following the rules of interpretation.

 

The Dayabhaga School of Hindu law is based on work "Dayabhaga" written by Jimutavahana. Jimutavahana had written the work in the 12^th  or 13^th   century. The Dayabhaga professes to be a digest of all the smritis.

Difference between Mitakshara and Dayabhaga

 

Any one who compares the Dayabhaga with the Mitakshara will observe that the two works differ in very vital points, and that they do so from the conscious application of completely different principles. The basic differences are:

 

(1) As regards the governing principles of law of inheritance.-The governing principle of law of inheritance and succession in Mitakshara is nearness of blood-relationship whereas in Dayabhaga it is religious benefit.

 

(ii) As regards mode of devolution of property.-The Mitakshra recognized two modes of devolution of property, viz survivorship and succession. The rule' of survivorship applied to the coparcenary property and the rule of succession to separate property. The Hindu Succession (Amendment) Act, 2005 has abolished the rule of survivorship as it existed under the Mitakshara law. Dayabhaga recognizes only one mode of devolution of property, that is succession. It applies to ancestral property and self-acquired property, coparcenary property and separate property.

(ii) As regards acquisition of property. -Mitakshara accepts the doctrine of acquisition of property by birth whereas Dayabhaga recognizes the doctrine of acquisition of ownership upon the death of last owner.

 

As soon as a son or a daughter is born [Section 6, Hindu Succession Act as substituted by Hindu Succession (Amendment) Act, 2005] is born. he or she gets equal right with his father in the Mitakshara coparcenary property. Under Dayabhaga law a son has got no right in the father's property, whether it is ancestral or self-acquired, the son gets the right in the property only on the death of the father. In Dayabhaga, coparcenary is created on father's death and it continues till brothers chose to partition.

 

(iv) As regards concept of Coparcenary. Both schools differ in concept of coparcenership. According to Mitakshara, the ownership of each coparcener in an undivided family property extends over the whole of the joint property, and each part thereof. Each owner is deemed to be owner of the whole, in the same manner as other co-owners are also the owners of the whole, the ownership of the one without excluding the ownership of the others. This view is known as the doctrine of the ownership in the whole.

 

According to Dayabhaga each of the undivided coparcener has ownership, not over the entire joint property but only over particular portions thereof. This doctrine is known as the doctrine of ownership in part.

 

(v) As regards partition.-Under the Mitakshara the share of each coparcener is not definite, and when the share is determined, that becomes partition. In other words, the partition by metes and bounds is not necessary but the fixation of share of each coparcener is enough. In Dayabhaga partition by metes and bounds is necessary.

 

(vi) As regards proprietary rights of females.-The Mitakshara places the woman, in acquisition of property, on equal footing with man, but Jimutavahan (the author of Dayabhaga) is an orthodox in this matter and restricts their acquisition to six sorts of property expressly mentioned by Manu. The word "stridhana" is used in literal sense in Mitakshara and it means the property belonging to a woman. The Dayabhaga uses the term in a technical sense and it means the property which is under her absolute control.

 

(vii) As regards pious obligation of a son.-Under Mitakshara school of law, a son was under legal obligation to pay the debt of his father, father's father, and father's father's father provided the debt is not avyaharika (immoral). The doctrine of pious obligation of the son to pay the father's debt has been abolished by the Hindu Succession (Amendment) Act, 2005 [Section 6(4) as substituted by Hindu Succession (Amendment) Act, 2005] There is no such pious or legal obligation of son under the Dayabhaga school of Law.

 

(vill) As regards Sapinda relationship.-The Mitakshara and the Dayabhaga both recognize the prohibition of marriage on ground of Sapinda relationship. But they differ in meaning of Sapinda relationship. Mitakshara defines Sapinda relationship as particles of the same body. Two persons as Sapindas to each other when they are related through a common ancestor or ancestress. Dayabhaga propounds the "oblation theory". If two persons offer pindas to the same ancestor, then they are Sapindas to cach other.

 

(ix) As regards disposition of undivided property-In Mitakshara members of joint family property cannot dispose of their share while undivided, while under the Dayabhaga system, any member of the joint family can dispose his share even without divided.

Effect of Migration from one school (area) to another school

 

A Hindu is governed by the law of place to which he originally belonged On migration he continues to be governed by the law of the original domicile Adherence to family usage is a strong oriental habit. This is the reason why the law of the place of origin is applies. Where a Hindu Family migrates from one state to another, the presumption is that it carries with it its personal law ie. the laws and customs as to succession and family relations prevailing in the State from which it came. But this presumption may be rebutted by showing that the family has adopted the law and usages of the province to which it has migrated.

 

In Prabati & Jagadish [1902 CAL], the Privy Council decided that the family shall be governed by Dravida School, not by Dayabhaga School as the family was migrated from Madras to Bengal.

 

In Balwant Rao & Baji Rao (1920) 47 IA 2131, the Privy Council said, "Where a Hindu family migrates from one part of India to another part of India - 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 affirmatively be proved to have been adopted. The analogy is that of a change of domicile on settling in a new country rather than the analogy of a change of custom on migration within India".

 

In fact, if nothing is known about a person other than that he/she lived in a certain locality/place, it will be presumed that his/her personal law is that which prevails in that place. Although in such matters domicile is determining factor and plays an important role.

Khojas and Kutchi memons of Kutch and Kathiawad on migration to Chennai and other parts of India retained the Mitakshari rules of Hindu Law in general not only in matters of succession and inheritance but also with regard to their property including the Hindu concept of coparcenary and survivorship.