HINDU JURISPRUDENCE

PROJECT

TOPIC
COMPAIRATIVE STUDY OF SCHOOLS OF
HINDU LAW

UNDER SUPERVISON Mr. ENAM FIRDOS

SUBMITTED BY-
SYED SUBOOR HUSSAIN
LLM- 1ST Year
 INDEX

Introduction

Mitakshara School

Dayabhaga School

Difference between Mitakshara and Dayabhaga School

Female as Coparcener

Effect of Migration

Bibliography
 Introduction

The modern Hindu law is divided into two parts one is codified Hindu law and other
is uncodified Hindu law. Codified Hindu law applies to every Hindu. In codified
part of Hindu law, there is no relevance of Schools of Hindu Law. But according to
Mayne the schools of Hindu laws are still relevant more or less the same way as they
were before codification. We all know that Vedas and Smritis are the most reliable
source for laws in India but they are not easy to understand. So many scholars
throughout India wrote commentaries on Vedas and Smritis by including local
customs. So this an number of commentaries led to the development of these
schools1. There are two main schools of Hindu Law:

1. Mitakshara School : It has four sub schools-

(a) Benaras School
(b) Mithila School
(c) Maharashtra School or Bombay School
(d) Dravida School
2. Dayabhaga School

1
Collector of Madrai v/s Mottaramlingam
 Mitakshara School

The Mitakshara School got its name from the Commentary called Mitakshara written
by Vijnaneshwara on Yajnavalkya Smriti. The Mitakshara in its turn has been the
subject of several commentaries. Amongst them the best known are Subodhini and
Balambhatti written by Balakrishna alias Balabhatta in name of his mother
Lakshmidevi towards the end of 18th Century A.D. By this time caste system was
fully entrenched. He classifies all society into four classes, the Brahmin, the
Kshatriya, the Vaishya and the Shudra. He lays down minute rules regarding
pregnancy and the rites to be performed from time to time till the sacred thread
ceremony. He forbids marriage between a Shudra and Brahmins and advocated
limited polygamy. He recites eight types of marriage and out of the four were the
acceptable. Inter caste marriage was limited to upper castes. The second part of his
work deals with vyavhar and embraces the rules of common morality. His work on
partition and inheritance is in great detail and is the basis of the present day law on
partition. The rest of the work deals with boundary disputes, bailments, mortgage,
rule of evidence, duties of kings etc.

Mitakshara Sub Schools

The four sub schools of Mitakshara to a large extent follow same fundamental
principles of Mitakshara, though on some matters they differ among themselves.
There were some differences on succession and adoption but they are removed by
The Hindu Succession Act, 1956 and Hindu Adoption and Maintenance Act, 1956.

1. Banaras School
 It extends to the whole of the Northern India except in rural Punjab where its
authority has been considerably modified by customary law. The main
authorities of the school are the Viramitrodaya and Nirnaya Sindhu.

The following commentaries besides the Mitakshara are accepted in this school:

1. Virmitrodaya 2. Dattaka Mimansa 3. Nimaya Sindhu 4. Vivada-Tandava 5.

Balambhatti, and 6. Subodhini.

2. Mithila School
It operates in Tirhut and certain districts of Northen Bihar. The main
authorities are Vivada Chintamani and Vivada Ratnakara.

Besides Mitakshara, the following commentaries are acceptable to this school:—

1. Vivad Ratrakar, 2. Vivad Chintamani 3. Smriti-sara or Smriti Tattvasara 4.

Madan Parijata.

3. Bombay School
It extends to western India western India including the states of Gujarat and
Bombay. The main authorities are the Vyavahar Mayukha, the Viramitrodaya
and the Nirnaya Sindhu.
The authority of following commentaries besides Mitakshara was accepted in
this school: — 1. Virmitrodaya, 2. Nirnayasindhu, 3. Parasara Madhavya, 4.
Vivada Tandava

4. Madras School
 The Dravida or Madras school covers southern India including the States of
Tamil Nadu, Karnataka, AndhraPradesh and Kerala. The main authoriries of
this school are Smriri Chandrika, Saraswati Vilasa and Vyavahara Nirnaya.

The following commentaries are held in high esteem in this school:—

1. Smriti Chandrika, 2. Parasara Madhavya, 3. Saras wati Vilas, 4.

Virmitrodaya, 5. Vyavhara Nirnaya, 6. Dattaka Chandrika, 7. Dayavibhag, 8.
Kesava Vaijayanti
 Dayabhaga School

The Dayabhaga School which find its following mainly in Bengal and Assam is not
a commentary on any particular code but is a digest of all the codes. It has been
written by Jimtavahana who lived sometimes in 12th century. Dayabhaga is not
divided into any sub-schools. Jimutvahan professes to base his views on the
Manusmriti which he says have not been fully comprehended. He propounds the
theory of spiritual benefit fot he governance of the rules of succession. The
immediate benefit of this new theory was the inclusion of many cognates in the list
of heirs, excluded by the Mitakshara which was mainly agnatic2. Without accepting
the set of propositions laid down by other commentators, he deals with the subject
of inheritance, partition and succession as an objective science with a fortnight and
direct approach. He appeals to reason and logic and not merely to precepts,
precedents or postulations. Examining the roots by digging up various stand points,
he plunges into the heart of the subject to come up with doctrines that were close to
practically and rationally.

2
Prof. V.C. Sarkar Hindu Law p.48
 Difference between the two schools

Mitakshara and dayabhaga differ in certain matters. Basic differences are-

1. On the basis of Succession

The Mitakshara school bases its law of inheritance on principle of
Proponquity(nearness) while Dayabhaga school bases its law of succession on
principle of religious efficacy.
The principle of propinquity means that one who is nearer in blood
relationship succeeds. It means sons and daughters will get the property
equally because they are the nearest to their father. But Mitakshara did not
give full effect to the principle. It is limited by two subsidiary Princles
(i) Exclusion of females from inheritance
(ii) Preference of agnates over cognates

Thus a Hindu dies leaving behind a son and a daughter, the daughter will be excluded
from the property by following the first principle. Similarly if Hindu dies leaving a
son’s son and daughter’s son, the son’s son will succeed to the entire property by
application of second principle.

The principle of religious efficacy means that the one who perform after death rituals
of the deceased will be entitled to inheritance. The conferment of religious benefit
is based on the doctrine of offering of oblations or Pindadana to deceased. Although
the principle is based on the religious doctrine its operation does not always lead to
preference of agnates over cognates.
Under the Modern Hindu Law this difference between two main schools is no more
exists. Under the Hindu Succession Act, 1956 we have one uniform law of
succession for all Hindus irrespective of school, to which they belong.

2. On the basis of joint family

The Mitakshara school propounds the doctrine of son’s right by birth in the joint
family property. It is a unique contribution of this school to Hindu jurisprudence.
This doctrine means that the moment a son is born in family he acquires an interest
in joint family property. The doctrine means that each son on his birth acquires an
equal interest with his father in the joint family property. It follows the principle of
survivorship. In other words the joint family property does not pass by inheritance
but it goes to coparceners i.e. who are able to live longer than others. On the other
hand son has no right by birth in any property. So long as the father is alive he is the
master of all properties whether ancestral or self- acquired.

The concept of joint family property under the Mitakshara school implies the notion
of community of ownership and unity of possession. This expression means that
before partition no individual coparcener can say that he owns so much share in the
joint family property. The interest of coparceners is fluctuating, it diminishes on
birth and increases on death in family. But there is no concept of birth right under
the Dayabhaga school, interest of coparceners remains constant, not effected by
death or birth in the family. Under both the school unity of the possession is same.
Hindu Succession Amendment Act, (2005) and females as
coparceners

The most significant amendment made by the Hindu Succession Amendment Act,
(2005) was to make the daughter a coparcener by birth in her own right. The term
Mitakshara Coparcener now includes daughters in it. A daughter now has the same
rights in the Coparcenary property as that of a son and is subject to the same
liabilities as that of a son in respect of the said Coparcenary property. For example
if the Coparcenary property is subject to some debts then on partition the female as
a coparcener would also be liable to pay the debts over her share of the property and
thus is subject to the same sets of liabilities as that of a son in respect of the said
property. Also any property which a daughter obtains under the amended section
will be held by her with the incidents of Coparcenary property and she can dispose
it off by the testamentary disposition. This act also abolishes survivorship and the
only modes of devolution now followed are testamentary or intestate succession.
Further in case of notional partition the daughter is allotted the same share as is
allotted to a son. This act also removes the obligation of a son, grandson or great
grandson to pay the debts of his father, grandfather or great grandfather solely on
the ground of his pious obligation thus bringing equality amongst sons and
daughters.
In case of Prakash and Ors vs Phulvathi and Ors 3the Supreme Court has
categorically held that the Amendment Act is prospective in nature. Therefore, it is
only from 09/09/2005 onwards that the daughters would be considered as
coparceners and have an equal share as that of sons in joint family property.
However, this does not mean that the daughter has to be born after 2005. The
daughter may have been born at any time prior to 2005 but the daughter must be

3
2015(6) Kar L J 177
living in 2005 for her to claim a share. This would imply that if a daughter has died
prior to 2005, her legal heirs cannot claim that they should be having a larger share
on the basis that the daughter, had she been alive, would have had an equal share in
the joint family properties.

Effects of Migration
When a Hindu migrates from one part of India to another prima facie he carries with
him his personal law. Thus it is his law in operation at the time of migration which
applies even though the law is ascertained by decisions, subsequent to migration. 4
However this is a merely apresumption and can be rebutted by showing that the
family adopted the law or usage of the palce to which it migrated by confronting to
the manners, customs and usages of the people among whom it came to live.5 So if
a family migrates from Benaras to Bengal where the Dayabhaga school prevails, will
continue to be governed by Benaras school of law in all personal matter including
succession to immovable property. This rule is an exception to the rule of Private
International Law that immovable property is governed by lex situs.

In Balwant Rao v. Baji Rao6 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 domicile on settling in anew country rather than the analogy of a
change of custom on migration within India.

4
Lachman v. Jhagar AIR 1939 All 437
5
Sarda v. Umakanta AIR 1923 Cal. 584
6
1920 41 IA 213
 Bibliography

1. Paras Deewan Family Law

2. Dr. S.R. Myneni Hindu Law
3. Hari Kohli Supreme Court on Hindu Law
4. Mullah on Hindu Law