What are the main schools of Hindu Law and how did they

originate ? What are main points of distinction between them?

(b) What are the essential differences between the Mitakshara
and Dayabhaga Schools of Hindu Law?

Ans.(a) Originally Hindu Law was applied to the whole of India but
subsequenty it divided into two main Schools:-
1. Mitakshara and 2. Dayabhaga.

The Schools of Hindu Law came into being when different commentaries
appeared to interpret 'Smritis' with reference to different local customs in
vogue in different parts of India. In Rutcheputty Vs. Rajendra, 1839, it
has been observed by the Privy Council that the different local customs
prevailed in different provinces of India. The commentators of the Smritis
could not ignore the local customs and usages and while interpreting the
texts, they eventually incorporated different local customs. The local
conditions and customs of the different provinces have, therefore, gone to
mould the principles of law prevailing in each provinces.
Origin and Development of Hindu Law-
In Collector of Madura Vs. Mottoo Ramalinga, 1868, the Privy Council has
held that: "The remoter sources of Hindu Law (that is Smritis) are common to
all the different schools. The process by which those schools have been
developed seems to have been of this kind Works universally or very generally
received become the subject of subsequent commentaries. The commentator
puts his own gloss on the ancient text; and his authority having been received in
one and rejected in another part of India, thus, the schools with conflicting
doctrines arose."
Schools of Hindu Law-
There are two schools of Hindu Law, i.e Mitakshara School and the Dayabhaga
School. The latter prevails in Bengal and the former in other parts of India.
Mitakshara is a running commentary on the Code of Yajnavalkya and was
written by Vijnaneshwara in the latter part of the eleventh century. The
Dayabhaga is not a commentary on any one Code, but purports to be a digest of
all the Codes. It was written by Jimutavahana.
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 conflict between it and the Dayabhaga. The Dayabhaga has
permitted the women to let in the coparcenary whereas the Mitakshara has
discarded this very notion. The former one accepted the rule of religious
efficacy whereas the latter propounded the doctrine of consanguinity in the
matter of succession The Dayabhaga is more dynamic and is definitely an
improvement upon Mitakshara.

Mitakshara-
The Mitakshara school of Hindu law is better known as the “Inheritance by
birth”. Mitakshara gives the right to father’s property to a son just as the son is
born.
Mitakshara school of Hindu law is practiced in all states of India except Assam
and West Bengal.
Mitakshara is believed to be written between 1055 CE and 1126 CE by
Vijnanesvara. Some of the most important chapters of Mitakshara include
property rights, property distribution, and inheritance.
Mitakshara considers only the male members of the family under the joint
family system. The males of the family have the complete hold over the
property.
Mitakshara school does not give any rights to females or wives, they don’t have
any share in the ancestral property, only the mothers have the right over their
son’s share. Widows only have the right to maintenance of their husband’s
property but they can’t have a claim over it.

The Mitakshara School is again divided into following five sub-schools

1. Benaras School- Excepting in Mithila and the Punjab, this School prevails in
the whole of Northern India including Orissa. The "lex loci" in the Central
Provinces (Now Madhya Pradesh) is the Benaras School of Hindu Law. The
following commentaries are also held in high esteem in this School -
1. Mitakshara, 2. Viramitrodaya, 3. Dattaka Mimansa, 4. Nirnayasindhu, 5.
Vivada Tandava, 6. Subodhini, and 7. Balam-Bhatti.
2. Mithila School- This school prevails in Tirhoot and North Bihar. Of course,
the Mitakshara is the law of this school, except in a few matters. Thus, it was
observed by the Privy Council that the law of the Mithila School is the law of
the Mitakshara except in a few matters in respect of which the law of Mithila
School has departed from the law of the Mitakshara. The following are the
commentaries treated as authoritative in this School
1. Mitakshara, 2. Vivada Ratnakar. 3. Vivada Chintamani, Smriti Sara or
Smrityarthasara, 5. Madana Parijata.
3. Dravida or Madras School- The whole of the Madras State is governed by the
Madras School of Hindu Law. This School was on Sledded into Tamil, a
Karnataka and an Andhra School for which, however, there was no justification.
The Authorities accepted in this school are-
1. Mitakshara, 2. Smriti Chandrika, 3. Parasara Madhaviya, 4. Saraswati Vilasa,
5. Viramitrodaya, 6. Vyavalara Nimaya, 7, Dattaka Chandrika. 8. Daya
Vibhaga, 9. Vaijayanti. 10. Madhabi, 11. Nirnaya Sindhu, 12. Narada Rajya, 13,
Vivada-Tandava.

4. Bombay or Maharashtra School -The Bombay or Maharashtra - School of

Hindu Law prevails in almost the whole of the State of Bombay including
Gujarat, Kanara and the parts where the Marathi language is spoken as the local
language. The following works are treated as authoritative in this School-
1. Mitakshara, 2. Vyavhara Mayukha, 3. Viramitrodaya, 4. Nirnaya Sindhu, 5.
Parasara-Madhaviya, 6. Vivada Tandava.

5. Punjab School-It prevails in the part of the country called the East Punjab.
This school is chiefly governed by customs. The following are the authorities in
this School-
1. Mitakshara, 2. Viramitrodaya, and 3. Punjab Customs.

Dayabhaga-
Dayabhaga is the inheritance law based on the principle of spiritual benefit. It
was formulated with a purpose to eradicate the absurd practices related to the
inheritance of property.
Dayabhaga is a popular Hindu belief practiced mainly in West Bengal, Assam,
Jharkhand and Odisha.
Dayabhaga is believed to be written between 1090 and 1130. In legal terms,
Dayabhaga is said to be a treaty dealing with the aspects of Hindu laws majorly
relating to inheritance. Dayabhaga gives a well-defined share of the property to
descendants.
Dayabhaga is a system in which the sons have the right to the property of their
fathers only after the father’s death. It is only under special circumstances that
the son has the right to property before the father’s death.
Dayabhaga gives the woman the right to stridhan, they have an absolute right
over it and can use it without even husbands’ consent. It also gives widows the
right to property over their husband’s shares.
Dayabhaga being a liberal school of Hindu law is mostly found in modern
societies. It is also known as a progressive school of Hindu law. It gives an
individual the right to individuality.
The main features of this School are as follows:
• The son has no interest in his father’s property by reason of his birth and
right to property arises by death of the last owner.
• Father has absolute power of alienation over all the property, whether
ancestral or self-acquired.
•   The interest of every person passes by inheritance on his death to his
heirs.
•   Any member of a joint family can alienate in any manner his share even
when undivided.
• The principle of succession is based on spiritual efficacy.
• In this school, ‘sapinda‘ means of same ‘pinda‘, i.e., a ball of rice which
is offered by a Hindu as obsequies to his deceased ancestors. So,
‘sapinda‘ connotes those related by duty to offer ‘pinda‘ to the other.
(b) Difference Between the Mitakshara and Dayabhaga Schools –

The main difference between the Mitakshara and Dayabhaga Schools of law is
as under-

(i) As regards the governing principles of law of inheritance.-

The governing principle of law of inheritance and succession in

Mitakshara nearness of blood-relationship whereas in Dayabhaga it is
religious benefit.

(ii) As regards mode of devolution of property.-

The Mitakshara recognized two modes of devolution of property, viz

survivorship a succession. The rule of survivorship applied to the
coparcenary proper 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 devolution of property, that is succession. It
applies to ancestral property and self-acquired property, coparcenary
property and separate property.

(iii) 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, be 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 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 Dayahhaga 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). Th 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.

(viii) As regards Sapinda relationship.-

The Mitakshara and the Dayabhaga both recognize the prohibition of

marriage on ground or 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 each 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.