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Saturday, June 1, 2013

What are the schools of Hindu law, describe their fundamental differences & effects of migration on the Schools of Hindu law.


Broadly speaking, there are two main schools of Hindu law, namely:-
1.      The Dayabhaga school, and
2.   The Mitakshara school.

The Mitakshara is a running commentary on the code of Yajnavalka. It has been written by an eleventh century jurist by the name of Vijnaneshwar (বিজ্ঞানেশ্বর), and prevails in all parts of India (except the province of West Bengal) and in Pakistan. The Dayabhaga School, which is followed mainly in Bengal, Bangladesh, is not a commentary or any particular code, but is a digest of all the codes. It has been written by Jimutavahana (জিমুতবাহ). It may also be noted that the Mitakshara is the orthodox school, whereas the Dayabhaga is the reformist school of Hindu law.

     The Dayabhaga is not divided into any sub-schools, However, the Mitakshara is sub-divided into four schools prevailing in different part of India, and these four sub-schools are as follows:-

a.    The Banaras School, which prevails in northern and western India;
b.   The Mithila School, which has most of its followers in Bihar
c.    The Dravida or Madras School, which prevails in Southern India; and
d.   The Maharashtra or Bombay School, which prevails in Western India.

The Mitakshara and the Dayabhaga school differed on important issues as regards the rules of inheritance. However, this branch of law is now codified by the Hindu succession Act, 1956, which has dissolved the differences between the two.

     Today, the main divergence between the two refers to certain matters connected with the joint family system. Under the Mitakshara system, rights in the joint family properties are acquired by birth, and as a rule females have no right of succession to the family property, which passes by survivorship to the other male members of the family.  Under the Dayabhaga system, rights in the joint family property are acquired by inheritance or by will, and the share of a deceased male member goes to his widow in default of a closed heir.
Although it is the Dayabhaga schools that prevails in Bengal, the Mitakshara is also regarded there is being a very high authority on all question in respect whereof there is no express conflict between the two schools. Likewise, the Dayabhga is also referred to sometimes in a case governed by Mitakshara law, on points on which the letter is silent.
Case Ref: Mahavir Prasad vs Rai Bahadar Singh

Differences between Mitakshara school & Dayabhaga school.
We know that the Mitakshara is anterior to dayabhaga and it is a running commentary or the code of Yajnabalka (জগ্যবলকো) written by Vijaneswara (বিজ্ঞানেশ্বর). The Dayabhga is the digest of all the codes while giving performance to the Code of Manu.

The two schools mainly differ or the following points:-
1.      Inheritance
2.      Devolution of Property
3.      Joint Family Property
4.      Factum Valet

1.  Inheritence:
Inheritance under the Mitakshara school—
a.    The right of inheritance arises from propinquity (রক্তসম্পর্কীয়).
b.   There are there classes of heirs—
                                            i.            Sapinddas,
                                          ii.            Samanadakas
                                        iii.            Bandhu
c.    So long there are gotraja sapindas or samanadakas, no bandhu or bhinn-gotra sapindas can generally inherit.
d.   A large number of cognate (born of the same family- একই বংশজাত/ একই বংশের অন্তর্ভুক্ত) heirs are recognized in Mitakshara than Dayavhaga

Inheritance under Dayabhaga school—
a.    The right of inheritance depends on spiritual efficacy.
b.   There are three classes of heirs—
                                            i.            Sapindas
                                          ii.            Sakulyas
                                        iii.            Samanodakas
c.    Both agnates and cognates come in the list of sapindas and inherit before sakulyas or samanodakas.
d.   Sapindas are those who can confer spiritual benefit on the deceased by offering pindas and include both agnates and cognates.

2.  Devolution of Property:
Under Mitakshara school property devolves in two ways—
                                            i.            Survivorship, and
                                          ii.            Succession.
Under Dayabhaga no living Hindu has got any heir; succession opens after his death. But survivorship is not recognized death.

3.  Joint Family Property:
Joint family property under Mitakshara school—
a.    A son, born to one of the coparceners acquires an interest in the property from the moment of this birth and he cannot be ousted from such interest which he is alive. 
b.   The karta or manager has got a restricted right of transfer.
c.    Property devolves on the male survivors only.

Joint family property under Dayabhaga school:
a.    Succession opens to a son only after the death of the father. A Dayabhga father is competent to make a tesatamentory disposition of the whole of property. A son has got no right to object to it. A son cannot claim partition during the lifetime of his father.
b.   Succession once opens, share of each heir becomes fixed, and every member can alienate his share in any way he likes.
c.    Property passes by inheritance only and may go to female heirs like widows, daughter etc.

4.     Factum Valet:
It is recignised by Dayabhaga school to a greater extent than Mitakshara school. But factum valet is no defense when the act is immoral or against public policy or prohibited by any Act of Legislature or against express principles of Hindu law.

Effect of migration on the school of Hindu law.
When a Hindu family migrates from one state to another, the law draws a presumption that it carries with it its personal law. i.e. the laws and customs prevailing in the state from which it came. The presumption can, however, be rebutted, by showing that such a family has adopted the law and usages of the new provinu where it has settled down. Thus for interest, where a Hindu family migrates, say from Maharashtra (where Mitakshara law prevails), to Bengal (where the Dayabhaga laws prevails), the presumption is that the family continuous to be governed by the Mitakshara law. This presumption is that the family has abandoned the law of the province of its origin (i.e. Mitakshara), and adopted the law of the province where it has settled. (i.e. Bengal).

Lecturer: Jannatul Ferdaus                                                                                       
Department Of Law
Northern University Bangladesh
Rajshahi Campus
Email: jfkhushi@gmail.com

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