ORIGIN OF THE SCHOOLS OF HINDU LAW

Different schools of Hindu Law arose as a result of various commentaries on the Smritis. The authority of the Vedas and the Smritis is accepted throughout India. The Smritis, however, have been the subject-matter of commentaries by eminent scholars in different parts of the country. These commentaries seem to have imported local customs into the sacred texts by a process of interpretation.

By the 11^th Century, the country was formed into powerful and independent states often with rivalry among them. Distinct customs and usages were sometimes recognised as a superior force to the medieval laws. The legislators of each state interpreted ancient texts in the light of the requirements of that time so that the Code enacted could be enforced by the sovereign authorities. Written and unwritten laws were harmonised in the light of the wants of the people and their characteristic and unique customs and traditions without altering the foundation. This is how the different schools of law originated and to his day, Hindu law is divided in sub-schools or branches.[i]  The term ‘school’ is of later orign and the word ‘sampradaya’ depicted the region-based versions previously. These five schools are the Mithila, the Benaras, the Dravida, the Maharashtra and the Bengal Schools.[ii]

The two main schools are the Mitakshara and Dayabhaga Schools. The Dayabhaga School is confined to Bengal and it takes its name after the work of Jimutavahana. The rest of India (prevailing in Mithila, Benaras, Dravida and Maharashtra) primarily follow the Mitakshara School which takes after the work by Vijananeshwara, a commentary on the Yajnavalkya Smriti.

MITAKSHARA

The primary source of Hindu law is common to all Hindus and became the subject for subsequent commentators. With multiple commentators interpreting the same source, the difference in the finished works was inevitable. Added to this was the region-wise acceptance of the authority or superiority of a particular work and a comparative rejection of the other. Thus, Mitakshara literally meaning ‘a brief compendium’, is a work by Vijananeshwara that is not merely confined to a specific commentary but encompasses within itself the quintessence of the Smriti law,[iii] and became the authority for the whole of India except parts of Punjab and Bengal.In Bengal also, Mitakshara was received as high authority except with respect to those points on which it conflicted with Dayabhaga that is of paramount authority in Bengal. Even Mitakshara was subject to different interpretations leading it its sub-division into several schools such as:

• Dravida School

In addition to the Mitakshara, in southern India certain aw books were treated as great authorities. They are Parasara Madhaviya, Smritichandrika, Saraswativilasa and Vyavahara Nimaya.

• Parasara Madhaviya

This work was written by Madhavacharya as a commentary on Parasara Smriti.

• Smritichandrika

This work was by Devanna Bhatta and deals with the subject of inheritance. It was composed during the Vijayanagar Dynasty.

• Saraswati Vilasa

This was the work of the rules Prataparudra Deva who belonged to the Gajapathy Dynasty in Orissa.

In absence of any major divergence with respect to the fundamental or constitutive principles, it remined in fact a minor sub-division resulting primarily due to disparate interpretations of individual commentators. The divergences merely supplemented the principle works and did not abrogate or replace it.

During the British regime, initially, the opinions of Pundits were often sought by the European judges to help them adjudicate on the matters of Hindu Law. It is doubtful whether the Pundits so consulted had access to all the leading authorities at the relevant time. Moreover popular region-wise variations were also responsible  for an understanding of the sub-divisions. These strict sub-divisions were diluted considerably with the widening of knowledge and familiarity of jurists with the Sanskrit language. For example, in some cases such as Ramachandra’s case[iv] and Buddha Singh v. Laltu Singh[v], the authorities of all the schools were examined to settle questions of Hindu law, which are necessarily common to all the schools.

DAYABHAGA

Written by Jimutavahana in around the latter half of the 12^th century, the Dayabhaga is not a commentary on a specific work but a digest of all the Codes. It was part of a large work titled ‘Dharmaratna’ and is a valuable work on the laws of inheritance and succession. Jimutavahana’s doctrines of inheritance, succession and joint family system controvert some basic rules of Mitakshara by Vijananeshwara. Without accepting the set of propositions laid down by other commentators, Jimutavahana deals with the subject of inheritance and succession as an objective science with a forthright and direct approach. He appeals to reason and logic and not merely to precepts, precedents postulations. Examining the roots by digging up various standpoints, he plunges into the heart of the subject to come up with doctrines that were close to practicality and rationality.

MITAKSHARA & DAYABHAGA – DIFFERENCE

Mitakshara and Dayabhaga remain the primary schools of Hindu law and differ on the following basic aspects:[vi]

1. Under Mitakshara, the basis for the law of inheritance is the principle of propinquity, that is, nearness in blood relationship or consanguinity, which means that one who is nearer in blood relationship succeeds. This is purely a secular principle and means that children should inherit equally as they are equally nearer to the deceased parent. It, nevertheless, admits two exceptions, namely, exclusion of females and preference to agnates over cognates. The law of succession under Dayabhaga is based on the principle of religious efficacy or spiritual benefits and a person who confers more religious benefit on the deceased is preferred to those who confer less spiritual benefit. The conferment of religious benefit is linked to the doctrine of offering of oblations or Pindadan to the deceased. It, therefore, rejects the preference of agnates to cognates, which distinguishes the other system and arranges the limits of cognates upon principles peculiar to it. The Hindu Succession Act, 1956 has abrogated the difference between the two schools and has provided for a uniform law relating to succession among Hindus.
2. With repect to joint family under Mitakshara, the son, grandson, and great grandson have a right by birth in the joint family property having an equal interest with the father. Under Dayabhaga, the son or a grandson has no such right till the father is alive and as he is the master of the property, he can dispose it of at his pleasure.[vii] After his death, property, whether ancestral or separate, devolves by inheritance or succession. Consequently, it does not recognise the right of the son to ask for a partition during the lifetime of the father.

• Under Mitakshara law, the coparceners have community of interest and unity of possession, while under the Dayabhaga law coparceners have specified and ascertained shares in the joint family property. The interests do not fluctuate but the coparceners have a unity of possession.

1. While under the Mitakshara system the brothers and even collaterals, so long as they are joint, do not have a right to alienate their shares under the Dayabhaga system. The brothers or their collaterals hold their shares quasi-severally and while still undivided, have a right to dispose of their shares.
2. Under the Mitakshara system, the doctrine of survivorship applies and on the death of a coparcener his share is taken by the surviving coparceners, but under the Dayabhaga system, in the event of a coparcener dying issueless, his widow has a right to succeed to his share and to enforce a partition on her own account.[viii]

 

[i] Bhugwandeen Doobey v. Myna Baee, (1867) 11 Moo Ind App 487 (507, 508).

[ii] Venkanna Narasinha v. Laxmi Sannappa, AIR 1951 Bom 57: 53 Bom LR 192.

[iii] Surjit Lal Chhabda v. CIT Tax, (1976) 2 ITR 164.

[iv] Ramachandra’s Case, (1914) 14 IA 290, 42 Cal 384.

[v] Buddha Singh v. Laltu Singh, (1915) 37 All 604, 611.

[vi] Lekhraj Singh v. Ganga Sahai, (1887) ILR 9 All 253, 292.

[vii] Partha Talukdar v. Mina Hardinge, AIR 1993 Cal 118.

[viii] Ram Dulare v. Batul Bibi, AIR 1976 All 135.