Schools of Hindu Law

There are two schools of Hindu Law, namely,

1. Mitakshara School and
2. the Dayabhaga School.
The Mitakshara is a running commentary on the Code of Yajnavalkya and was written by Vijnaneshwara
in the latter part of the eleventh century.
The Dayablaga is not a commentary on any one Code, but purports to be a digest of all the Codes. It was
written by Jimutavahana. It was written about two centuries latter than the Mitakshara.

Mitakshara School
Mitakshara, in terms of the law of succession, is based on the principle of propinquity, which is the
nearest blood relation. It excludes females from inheritance and is based on agnates over cognates.

The Mitakshara is of supreme authority throughout India except in Bengal and Assam where The
Dayabhaga is of supreme authority.

But even in Bengal and Assam 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 vastness of this school is reflected in the fact that though it is one single school but is
practised in different forms as per the customs of the regions.
One of the unique features of Mitakshara School is that the coparcener male child (four
generations from Common ancestor) acquires right in family property by mere birth. It doesn’t
believe in the rights of women to succeed in joint family property.

Mitakshara school is further subdivided into the following 5 types:

1. Benaras school
This school is prevalent in most of North India including Orissa except for rural Punjab, and the main
authorities are Virmitrodaya and Nirnaya Sindhu.

2. Mithila School

This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The principles of
the law school prevail in the north. In a few matters, it differs from Mitakshara School. The major
commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara.

3. 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 Rights. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.
 4. Dravida or Madras School
This school is prevalent in the entire southern part of India including Kerala, Mysore and Madras. The
main authorities of this school are Smriti Chandrika, Vaijayanti, etc.

5. Punjab law School

This school is prevalent in East Punjab and also parts of Rajasthan and J&K. The main commentaries of
this school are viramitrodaya and it established customs.

Reasons of differences between various schools of Mitakshara.-

As we have seen that the variances between the sub-division of the Mitakshara school are
comparatively fewer and of lesser significance, the following are reasons for these differences:

(1) One reason which used to be given for this division is that "the glosses and commentaries upon
the Mitakshara are received by some of the schools but are not received by all".

(2) Another reason given for this division into schools is that the commentaries in a particular
province which follow the Mitakshara put a particular gloss on it and agree to it collectively.

Dayabhaga School

This School prevails over the regions of West Bengal and Orissa.

It is relatively new as compared to Mitakshara. Jimatuvahana who was a judge and Minister in Bengal is
said to be the writer of Dayabhaga. This School is seen as a commentary of particular works while a
Digest of all codes.

The Dayabhaga School bases its law of succession on the principle of religious efficacy or spiritual
benefit. This means that the one who bestows more religious benefits on the deceased is entitled to
inheritance in preference to the others who confer less benefit

The Dayabhaga has permitted the women to let in the coparcenary whereas the Mitakshara has
discarded this very notion.

In Dayabhaga school various other commentaries were followed such as:

 Dayatatva
 Dayakram-sangrah
 Virmitrodaya
 Dattaka chandrika
Differences between the Mitakshara and Dayabhaga Schools.
The fundamental points of difference between the Mitakshara and Dayabhaga Schools of law may be
summarised as follows:
As Regard to Mitakshara Dayabhaga
Joint Property Right to property arises Right to property arises
by birth (of the on death (of the last
claimant); hence the son owner); hence son has
is a co-owner with the no right to ancestral
father in ancestral property during father's
property. After the lifetime.
commencement of the
Hindu Succession
(Amendment) Act, 2005,
the daughter of a
coparcener is also a
coparcener.
Father has a restricted Father has absolute
power of alienation, and power of alienation,
son can claim partition and son cannot claim
even against the father. partition or even
maintenance.
The interest of a member The interest of every
of the joint family would, person would, on his
on his death, passed to death, pass by
the other members by inheritance to his heirs,
survivorship. Section 6 like widow or
(3) of the Hindu daughters.
Succession Act, as
substituted by the Hindu
Succession (Amendment)
Act, 2005 abolishes the
principle of survivorship.
Alienation Members of joint family Any member of joint
cannot dispose of their family may sell or give
shares while undivided. away his share even
when undivided.
Inheritance The principle of The principle of
inheritance is inheritance is spiritual
consanguinity (i.e., efficacy (i.e., offering of
blood-relationship). But pindas). Some cognates,
cognates are postponed like sister's sons are
to agnates preferred to many
agnates.
Doctrine of Factum a fact cannot be altered Doctrine of factum valet
Valet by hundred texts. It is is fully recognised.
recognised to a very
limited extent.
 Migration Impact

The presumption is that if a family migrates from one state to another, it carries with it the customs
regulating succession and family relations prevailing in the state from where it came. However this
presumption may be rebutted by proving that the family has now already adopted the law and usages of
the state to which it has migrated.

The burden of proving that the family came from other tract and is, therefore, governed by some other
branch of Hindu Law, is on the party which asserts it.

In Abdurahim v. Halimabai, 1915 case, the court held that when a Hindu family migrates from one
place to another, they carry their law with them 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.