BANARAS HINDU UNIVERSITY

FACULTY OF LAW
ASSIGNMENT ON HINDU LAW
ON
“THE SCHOOLS OF HINDU LAW”

SUBMITTED BY:- SUBMITTED TO:-

NAME: - PRAGYA SRIVASTAVA MS. SHWETA

CHATURVEDI

CLASS: - B.A.LL.B Vth SEMESTER

ROLL NO.:- 40 REMARKS:-

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 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher
Ms. Shweta Chaturvedi who gave me the golden opportunity to do
this wonderful project on the topic “The Mischief Rule”, which also
helped in doing a lot of research and I came to know about so many
new things and I am really thankful to them.

Secondly, I would also like to thank my parents and friends who

helped me a lot in finalizing this project within the limited time frame.

---Pragya Srivastava

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 INDEX

S. NO. CONTENTS PAGE NO.

1. Introduction 4

2. Mitakshara School 4

3. Dayabhaga School 5

4. Difference between Dayabhaga School 6

and Mitakshara School
5. Conclusion 9

6. Bibliography 10

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INTRODUCTION
The modern Hindu law is divided into two parts one is codified Hindu law and other is un
codified Hindu law. Codified Hindu law applies to every Hindu. In codified part of Hindu
law, there is no relevance of Schools of Hindu Law. But according to Mayne, the schools of
Hindu laws are still relevant more or less the same way as they were before codification. We
all know that Vedas and Smritis are the most reliable source for laws in India but they are not
easy to understand. So many scholars throughout India wrote commentaries on Vedas and
Smritis by including local customs. So this number of commentaries led to the development
of these schools1. There are two main schools of Hindu Law:
1. Mitakshara School : It has four sub schools-
(a) Benaras School
(b) Mithila School
(c) Maharashtra School or Bombay School
(d) Dravida School
2. Dayabhaga School

MITAKSHARA SCHOOL
The Mitakshara School got its name from the Commentary called Mitakshara written by
Vijnaneshwara on Yajnavalkya Smriti. The Mitakshara in its turn has been the subject of
several commentaries. Amongst them the best known are Subodhini and Balambhatti written
by Balakrishna alias Balabhatta in name of his mother Lakshmidevi towards the end of 18th
Century A.D.. By this time caste system was fully entrenched. He classifies all society into
four classes, the Brahmin, the Kshatriya, the Vaishya and the Shudra. He lays down minute
rules regarding pregnancy and the rites to be performed from time to time till the sacred
thread ceremony. He forbids marriage between a Shudra and Brahmins and advocated limited
polygamy. He recites eight types of marriage and out of the four were the acceptable. Inter
caste marriage was limited to upper castes. The second part of his work deals with vyavhar
and embraces the rules of common morality. His work on partition and inheritance is in great
detail and is the basis of the present day law on partition. The rest of the work deals with
boundary disputes, bailments, mortgage, rule of evidence, duties of kings etc.

1
Collector of Madrai v/s Mottaramlingam
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Mitakshara Sub Schools
The four sub schools of Mitakshara to a large extent follow same fundamental principles of
Mitakshara, though on some matters they differ among themselves. There were some
differences on succession and adoption but they are removed by The Hindu Succession Act,
1956 and Hindu Adoption and Maintenance Act, 1956.
1. Banaras School
It extends to the whole of the Northern India except in rural Punjab where its authority has
been considerably modified by customary law. The main authorities of the school are the
Viramitrodaya and Nirnaya Sindhu.
2. Mithila School
It operates in Tirhut and certain districts of Northen Bihar. The main authorities are Vivada
Chintamani and Vivada Ratnakara.
3. Bombay School
It extends to western India western India including the states of Gujarat and Bombay. The
main authorities are the Vyavahar Mayukha, the Viramitrodaya and the Nirnaya Sindhu.
4. Madras School
The Dravida or Madras school covers southern India including the States of Tamil Nadu,
Karnataka, AndhraPradesh and Kerala. The main authoriries of this school are Smriri
Chandrika, Saraswati Vilasa and Vyavahara Nirnaya.

DAYABHAGA SCHOOL
The Dayabhaga School which find its following mainly in Bengal and Assam is not a
commentary on any particular code but is a digest of all the codes. It has been written by
Jimtavahana who lived sometimes in 12th century. Dayabhaga is not divided into any sub-
schools. Jimutvahan professes to base his views on the Manusmriti which he says have not
been fully comprehended. He propounds the theory of spiritual benefit fot he governance of
the rules of succession. The immediate benefit of this new theory was the inclusion of many
cognates in the list of heirs, excluded by the Mitakshara which was mainly agnatic 2. Without
accepting the set of propositions laid down by other commentators, he deals with the subject
of inheritance, partition and succession as an objective science with a fortnight and direct
approach. He appeals to reason and logic and not merely to precepts, precedents or

2
Prof. V.C. Sarkar Hindu Law p.48

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postulations. Examining the roots by digging up various stand points, he plunges into the
heart of the subject to come up with doctrines that were close to practically and rationally.

DIFFERENCE BETWEEN THE TWO SCHOOLS

Mitakshara and dayabhaga differ in certain matters. Basic differences are-
1. On the basis of Succession
The Mitakshara school bases its law of inheritance on principle of Proponquity(nearness)
while Dayabhaga school bases its law of succession on principle of religious efficacy.
The principle of propinquity means that one who is nearer in blood relationship succeeds. It
means sons and daughters will get the property equally because they are the nearest to their
father. But Mitakshara did not give full effect to the principle. It is limited by two subsidiary
Princles
(i) Exclusion of females from inheritance
(ii) Preference of agnates over cognates

Thus a Hindu dies leaving behind a son and a daughter, the daughter will be excluded from
the property by following the first principle. Similarly if Hindu dies leaving a son’s son and
daughter’s son, the son’s son will succeed to the entire property by application of second
principle.
The principle of religious efficacy means that the one who perform after death rituals of the
deceased will be entitled to inheritance. The conferment of religious benefit is based on the
doctrine of offering of oblations or Pindadana to deceased. Although the principle is based on
the religious doctrine its operation does not always lead to preference of agnates over
cognates.
Under the Modern Hindu Law this difference between two main schools is no more exists.
Under the Hindu Succession Act, 1956 we have one uniform law of succession for all Hindus
irrespective of school, to which they belong.
2. On the basis of joint family
The Mitakshara school propounds the doctrine of son’s right by birth in the joint family
property. It is a unique contribution of this school to Hindu jurisprudence. This doctrine
means that the moment a son is born in family he acquires an interest in joint family property.
The doctrine means that each son on his birth acquires an equal interest with his father in the
joint family property. It follows the principle of survivorship. In other words the joint family

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property does not pass by inheritance but it goes to coparceners i.e. who are able to live
longer than others. On the other hand son has no right by birth in any property. So long as
the father is alive he is the master of all properties whether ancestral or self- acquired.
The concept of joint family property under the Mitakshara school implies the notion of
community of ownership and unity of possession. This expression means that before partition
no individual coparcener can say that he owns so much share in the joint family property. The
interest of coparceners is fluctuating, it diminishes on birth and increases on death in family.
But there is no concept of birth right under the Dayabhaga school, interest of coparceners
remains constant, not effected by death or birth in the family. Under both the school unity of
the possession is same.
Hindu Succession Amendment Act, (2005) and females as coparceners

The most significant amendment made by the Hindu Succession Amendment Act, (2005) was
to make the daughter a coparcener by birth in her own right. The term Mitakshara Coparcener
now includes daughters in it. A daughter now has the same rights in the Coparcenary property
as that of a son and is subject to the same liabilities as that of a son in respect of the said
Coparcenary property. For example if the Coparcenary property is subject to some debts then
on partition the female as a coparcener would also be liable to pay the debts over her share of
the property and thus is subject to the same sets of liabilities as that of a son in respect of the
said property. Also any property which a daughter obtains under the amended section will be
held by her with the incidents of Coparcenary property and she can dispose it off by the
testamentary disposition. This act also abolishes survivorship and the only modes of
devolution now followed are testamentary or intestate succession. Further in case of notional
partition the daughter is allotted the same share as is allotted to a son. This act also removes
the obligation of a son, grandson or great grandson to pay the debts of his father, grandfather
or great grandfather solely on the ground of his pious obligation thus bringing equality
amongst sons and daughters.
In case of Prakash and Ors vs Phulvathi and Ors 3the Supreme Court has categorically held
that the Amendment Act is prospective in nature. Therefore, it is only from 09/09/2005
onwards that the daughters would be considered as coparceners and have an equal share as
that of sons in joint family property. However, this does not mean that the daughter has to be
born after 2005. The daughter may have been born at any time prior to 2005 but the daughter

3
2015(6) Kar L J 177

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must be living in 2005 for her to claim a share. This would imply that if a daughter has died
prior to 2005, her legal heirs cannot claim that they should be having a larger share on the
basis that the daughter, had she been alive, would have had an equal share in the joint family
properties.
Effects of Migration
When a Hindu migrates from one part of India to another prima facie he carries with him his
personal law. Thus it is his law in operation at the time of migration which applies even
though the law is ascertained by decisions, subsequent to migration.4 However this is a
merely apresumption and can be rebutted by showing that the family adopted the law or
usage of the palce to which it migrated by confronting to the manners, customs and usages of
the people among whom it came to live.5 So if a family migrates from Benaras to Bengal
where the Dayabhaga school prevails, will continue to be governed by Benaras school of law
in all personal matter including succession to immovable property. This rule is an exception
to the rule of Private International Law that immovable property is governed by lex situs.
In Balwant Rao v. Baji Rao6 Privy Council said where a Hindu family migrates from one part
of india to another part of India prima facie they carry with them their personal law and if
they are alleged to have become subject to a new local custom, this new custom must
affirmatively be proved to have been adopted. The analogy is that of a change domicile on
settling in anew country rather than the analogy of a change of custom on migration within
India.

4
Lachman v. Jhagar AIR 1939 All 437
5
Sarda v. Umakanta AIR 1923 Cal. 584
6
1920 41 IA 213

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CONCLUSION
Because of the different explanations of the sources of Hindu religion there have been the
creation of the two different schools (Mitakshara and Dayabhaga) and this is why there are
some differences between the Schools. Personal law is for the people of a certain religion to
make them fulfill their all personal obligations and realize about their personal rights in the
cases which affect the legal system of a country.Hindu law is also a personal law.It is
seen,sometimes the laws for the people of Hindu religion are not same because of the
differences between Mitakshara and Dayabhaga school.

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 BIBLIOGRAPHY

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