SCHOOLS OF HINDU LAW

Introduction.—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. The local conditions and customs of the different provinces have, therefore, gone to mould the
principles of law prevailing in each provinces.

Process of development.—In Collector of Madura v. Mottoo Ramalinga, 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, namely,

Mitakshara School and the Dayabhaga School. The latter prevails in Bengal and the former in
other parts of India. 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 Dayabhaga 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.

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

Mitakshara

The Mitakshara School is thus divided into five sub-schools

The five sub-schools are namely :—

(1) The Benaras School,

(2) The Mithila School,

(3) The Dravida or Madras School,

(4) The Bombay or Maharashtra School, and

(5) The Punjab School.

(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,

4. 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 once sub-divided into a Tamil, a Karnataka and an Andhra School for
which however, there was no justification.

The authorities accepted in this school are the following :

1. Mitakshara,

2. Smriti Chandrika,

3. Parasara Madhaviya,

4. Saraswati Vilasa,

5. Viramitrodaya,

6. Vyavahara Nirnaya,

7. Dattaka Chandrika,

8. Daya Vibhaga,

9. Vaijayanti,
10. Madhabi,

1 1. Nirnaya Sindhu,

12. Narada Rajya,

13. Vivada-Tandava.

(4) Bombay or Maharashtra School.—The Bombay or Maharashtra School of Hindu Law prevails it
'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 This school is chiefly governed by customs.

The following are authorities in this School :

1. Mitakshara,
2. Viramitrodaya, and
3. Punjab 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

This school prevails in West Bengal as well as in Assam with some variances based on the authority
of customs. The following authorities are accepted in this school :

Dayabhaga, Dayatatva, Daya-Sangraha, Viramitrodaya, and Dattaka-Chandrika.

Differences between the Mitakshara and Dayabhaga Schools.—

Mitakshara Dayabhaga
As regards Joint Property Right to property Right to property arises on death, hence son
arises by birth (of Right to property arises on has no right to ancestral property during
death (of the claimant); hence the son is a co- father’s lifetime.
the last owner); hence son has no right to
owner with the father in ancestral ancestral
property during father's lifetime. property.
After the commencement of the Hindu
Succession (Amendment) Act, 2005, the
daughter of a coparcener is also a coparcener.

Father has a restricted power of Father has absolute power of

alienation, and son can claim partition alienation, and son cannot claim partition
even against the father. or even maintenance.

The interest of a member of the The interest of every person would, on

joint family would, on his death, passed his death, pass by inheritance to his
to the other members by survivorship. heirs, like widow or daughters.
Section 6 (3) of the Hindu Succession
Act, as substituted by the Hindu
Succession (Amendment) Act, 2005
abolishes the principle of survivorship.

(2) As regards Alienation Any member of joint family may sell

Members of joint family cannot or give away his share even when
dispose of their shares while undivided. undivided.

3) As regards Inheritance The principle of inheritance is

The principle of inheritance is spiritual efficacy (i.e., offering of
consanguinity (i.e., blood-relationship). pindas).

(4) As regards -Doctrine of Factum Valet Doctrine of factum valet is fully recognised
a fact cannot be altered by hundred texts.

Mitakshara

1. The son gets a right by birth in the joint family property. In case he is adult, he can demand
partition even during the life time of his father.

2. He has a say and can prevent his father from unauthorised alienation of ancestral properly.

3. A coparcener has no right to alienate his share in the joint family property. On his death without
male issue, his interest survives to his brother.

4. The widow of the deceased coparcener cannot enforce partition. She has a right of maintenance.
5. The essence of a coparcenary is unity of ownership.

Dayabhaga

1. He has no right in the joint family property so long as his father is alive.

2. The father is absolute owner of the property and can deal with it the way he likes.

3. Each adult member male or female has a right to demand partition and can alienate his/her interest
and on death his/her share will be inherited by his her heirs.

4. The widow becomes a coparcener with her husband’s brother and can demand partition.

5. The essence is unity of possession and not ownership.

Migration and the Schools of Law.—On migration the family continues to be governed by the law
of locality of origin and the burden is heavy on the party alleging otherwise. 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.