Explain the Schools of Hindu Law & Differentiate between them. [2008 JCJ A.P. H.C]

The codification of Smritis in the form of verses were difficult to understand and apparently contained a few conflicting provisions. The development of Mimamsa gave scope to eminent jurists to contribute to the further development of law to suit the changing needs of the society which made the Smritis law practical, understandable and workable by reconciling the conflicting principles and even modified and supplemented the rules of the Smritis by their own forceful reasoning or by referring to the usages that had developed and acted upon by the society.

The Yagnavalka Smriti is commented upon by Vigneswara which has later become the Mitakshara School of Hindu law. The same Smriti was also commented upon by Jimutavahana which later became the Dayabhaga School of Hindu law.

Mitakshara School is followed all over India except in Bengal and Assam while Dayabhaga School is followed primarily in Bengal and Assam.

i) Mitakshara School of Hindu Law:

The Yagnavalka Smriti is commented upon by Vijnaneswara which has later become the Mitakshara School of Hindu law. Mitakshara School is followed all over India except in Bengal and Assam.

The title Mitakshara which etymologically means limited letter is given to indicate that it is a brief and precise commentary. The author of Mitakshara hailed from South India and flourished about the 11^th Century.

Mitakshara is considered as the most merited commentary on the law of the Smritis. The commentary deals with almost all the important topics of law and synthesizes the several Smriti texts. The great virtue and intrinsic merit of the commentary was soon established by the fact that the commentary written in South India was accepted as of paramount authority throughout the length and breadth of the country except only in Bengal where Dayabhaga system propounded by Jimutavaha was accepted. But, even Dayabhaga may also be referred to in a Mitakshara case on points on which the Mitakshara treatise is silent [Rai Bishen Chand vs. Asmaida Koer, (1884) ILR 6 All 560, 572)]

The commentary has stood the test of time. Even at present, in respect of matters not altered by legislation, it continues to be the personal law applicable to the majority of Hindus and enforceable is being enforced in the courts of law as it constitutes the “existing law” saved by Article 372 of the Constitution.

It is said that the Mitakshara School is the orthodox school. Mitakshara School is followed all over India except in Bengal and Assam.

Sub-Schools / Branches of Mitakshara School/system:

In different parts of the country having due regard to the varying conditions of the society and consequential differences in usage and customs, Mitakshara system was adopted with certain local variations as considered necessary to suit the requirements of the area.

The Mitakshara school is sub-divided into four minor schools who differ between themselves in some matters of detail relating particularly to adoption and inheritance as follows:

i) The Banares School, covering a substantial portion of Northern India

ii) The Mithila School, covering the northern part of Bihar

iii) Maharastra or Bombay School, for Western India including Konkan

iv) Dravid or Madras School, for Southern India

Each sub-division of the system acquired its name after the locality or territories in which the particular variation found acceptance by the people. All these sub-divisions Acknowledge the Mitakshara as the supreme authority. They differ only in some matters of details on the law of inheritance and adoption. But, these differences have now been swept away by the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956.

i) The Banares School, covering a substantial portion of Northern India

The principles of law laid down in the Mitakshara are supplemented in Benares School by Viramitrodaya. Viramitrodaya being later in time it supplements many gaps and omission left out in the earlier commentaries and it illustrates and elucidates with logical preciseness the meaning and scope of doubtful prescriptions. The Viramitrodaya prescription is declaratory in nature and acts as an exposition of what has been left doubtful by the Mitakshara. The Viramitrodaya cannot be referred to where the Mitakshara is clear. The other authority used to supplement is of Nirnayasindhu.

ii) The Mithila School, covering the northern part of Bihar

The principles of law laid down in the Mitakshara are supplement in Mithila School by Vivada Chintamani, Vivada Ratnakara and Madana Parijata.

The Privy Council has held 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 (Surendra vs. Hari Pd., 21 IA 418)

iii) Maharastra or Bombay School, for Western India including Konkan

The principal commentaries which have supplemented the Mitakshara in Maharastra are Vyavahara Mayukha, Viramitrodaya and Nirnayasindhu.

iv) Dravida or Madras School, for Southern India

The principal commentaries which have supplemented the Mitakshara in Dravida or Madras School are Smriti Chandrika, Parashara Madhaviya, Saraswati Vilasa and Vyavahara Nirmaya.

ii) Dayabhaga School of Hindu Law:

The same Yagnavalkya Smriti was also commented upon by Jimuthavahana which later became the Dayabhaga School of Hindu law. Dayabhaga School is followed primarily in Bengal and Assam.

Dayabhaga is a dissertation on the law of inheritance and partition. This work is not in the nature of a commentary but it is a digest of all the Smritis. Jimuthavahana appears to have flourished in the first part of 12^th Century. It is held by the scholars that he was a Judge and a Minister to a king in Bengal and an eminent jurist.

Even in Bengal, Mitakshara is still regarded as of very high authority on all questions in respect of which there is no express conflict between Mitakshara and Dayabhaga and the other works/treatises peculiar to that school.

On the provisions of the Smritis governing the law of inheritance, Jimuthavahana took a view diametrically opposite to that of Vijnaneswara i.e., while Vijaneswara

took the view that sons acquire right to the ancestral property by birth Jimuthavahana took the view that sons acquire right to the property of their father whether ancestral or self-acquired after the father’s death.

Distinguish between Mitakshara School and Dayabhaga School:

Smritis were difficult to understand and also apparently contained a few conflicting provisions. Due to development of Mimamsa/interpretation, various commentaries on Smritis came about and two main schools of Mitakshara and Dayabhaga School of Hindu Law came to flourish.

(i) These are two schools of law. Dayabhaga school prevails in Bengal while the Mitakshara School prevails in other parts of India.

(ii) Mitakshara is a running commentary on the Code of Yajnalvalkya which was written by Vijnaneshwara in the later part of 11^th Century while Dayabhaga is not a commentary on any particular Code but purports to be a digest of all codes and was written by Jimutavahana in the first part of 12^th Century.

(iii) Mitakshara is applicable throughout India except in Bengal where Dayabhaga is of supreme authority. However, even in Bengal, Mitakshara is still regarded as of very high authority on all questions in respect of which there is no express conflict between Mitakshara and Dayabhaga and the other works prevalent there. Dayabhaga may also be referred to in a Mitakshara case on points on which the latter treatise is silent.

(iv) It is said that the Mitakshara school is the orthodox school and the Dayabhaga school is the reformed school of Hindu law. Dayabhaga school is also called the Bengal school of Hindu law.

(v) The Bengal school differs from the Mitakshara school in two main particulars namely the law of inheritance and the joint family system.

The essential differences between Mitakshara and Dayabhaga relate to the following:-

1. Joint Family

Mitakshara School : - Son, grandson and great-grandson acquire by birth a right in the ancestral property, father’s power of alienation is qualified by the son’s equal right by birth

Dayabhaga School : - The ownership of a son can arise only after the death of the father, father has uncontrolled power of alienation over the family property

2. Survivorship

Mitakshara School : - Brothers who have inherited property from their father have a right of survivorship

Dayabhaga School : - Brothers hold in quasi-sevaralty with full power of alienation, does not recognise right of survivorship

3. Widow’s right

Mitakshara School : - When one of the brothers dies, his widow can succeed to his share

Dayabhaga School : - Widow’s rights are excluded by the right of survivorship of the brothers, she has only a right of maintenance

4. Sapida

Mitakshara School : - The relationship of Sapinda

Dayabhaga School : - The relationship arises by

5. Heirship

Mitakshara School : - arises by propinquity or community of blood, consanguinity (blood relationship) is the guiding principle

Dayabhaga School : - means of Pinda offerings to deceased ancestors, spiritual benefit is the criterion for heirship

6. Coparcenary

Mitakshara School : - The share of coparcener in the joint family property is not definite or ascertainable as their shares are fluctuating with births and deaths of the coparceners

Dayabhaga School : - The legal heirs (sons) have definite shares after the death of the father.