Schools of Hindu LAW

Definition

Hindu means those people who are being following the rules of hindu religion indentify himself to others people as hindu is called hindu.

hindu law: Hindu laws means those statutes rules which prescribed the right and duties of hindu. It’s called hindu law.

SCHOOLS OF HINDU LAW

School means rules and principles of Hindu Law which are divided into opinion. It is not codified. There are two Schools of Hindu Law-

(a) Mitakshara

(b) Dayabhaga

The schools are ordinarily said to be five in number. But there are only two principal schools namely, the mitakshara school and the Dayabhaga school. The Dayabhaga prevails in Bangladesh and in the province of West Bengal in india the Mitakshara prevails in the whole of India (except the province of west Bengal) and in Pakistan.

The Mitakshara is anterior to Dayabhaga and is a running commentary on the Code of Yajnabalkya written by Vijnaneswara.

The Dayabhaga is not a commentary on any particular Code but a digest of all the Codes. It gives first preference to the Code of Manu.

The Mitakshara school is regarded as the orthodox school and the Dayabhaga the reformed one and the two mainly differ on the following matters:-

i)                   The law of inheritance.

ii)                Joint family system.

The Mitakshara is sub-divided into four or five minor schools. These differ between themselves in some matters of detail relating mainly to adoption and inheritance.

  

The schools along with the commentaries, respected as authorities are given below:-

1. Mitakshara School :

(a) Benares School :      

(i) Mitakshara

                                                (ii) Viramitrodaya

                                                 (iii) Nirnayasindhu.

(b) Mithila School :       

(i) Mitakshara.

                                                (ii) Vivada-Chintamani of vachaspati Misra.

                                                (iii) Vivada Ratnakara of chandeswara.

(c) Maharashtra or Bombay School :

                                                (i) Mitakshara.

                                                (ii) Vyavahara Mayukha of Nilkants.

                                                (iii) Viramitrodaya.

                                                (iv) Nirnayasindhu.

(d) Dravida or Madras School :

                                       (i) Mitakshara.

                                                (ii) Smriti Chandrika of Deva-nanda Bhatta.

                                                (iii) Parasara-Madhava of Madhavacharya.

                                                (iv) Viramitrodaya.

                                                (v) Saraswati Vilasa.

(e) Punjab School :                  

(i) Mitakshara.

                                                (ii) Viramitrodaya.

                                                (iii) The Punjab customs, compiled in Riwaz-l-Am.

2. Dayabhaga School :  

(i) Dayabhaga of jimutabahana.

(ii) Mitakshara of Vijnanes-wara.

(iii) Dayatattwa of Raghunan-dana.

(iv) Daya-Karma-Sangraha of Srikrishna.

(v) Viramitrodaya of Mitra Misa.

The Mitakshara and Dayabhaga Schools differed on important issues as regards the rules of inheritance. However, this branch of the law is now codified by the Hindu Succession Act, 1956, which has dissolved the differences between the two. Today, the main difference between them is on joint family system.

Mitakshara- Rights in the joint family property is acquired by birth, and as a rule, females have no right of succession to the family property. The right to property passes by survivorship to the other male members of the family.

Dayabhaga- 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.

Differences between the two Schools

Mitakshara	Dayabhaga
i) Right of a son by birth in the ancestral property equal to the interest of his father.	i) A son is entitled to his ancestral property only on the death of his father. The father is the absolute owner of his property in his lifetime.
ii) A son becomes coparcener right after his birth. His right is applicable to the property of his grandfather and grand-grandfather.	ii) A son becomes coparcener by death of his father. This right is not available within the property of his father, grandfather or grand-grandfather.
iii) Everyone is entitled to the property as a unit. Their shares are not defined. They have only the commodity of ownership. There is joint-tenancy.	iii) Everyone’s share is defined. There is tenancy-in-common.
iv) One cannot transfer his share to the third party.	iv) One can transfer his share.
v) The joint-property can be partitioned. In that case, it will be partitioned as it was in case of the father.	v) As the shares are defined, one can easily partition with his share.

Devolution of Property

Mitakshara	Dayabhaga
1.     Under Mitakshara school property devolves in two ways (i) Survivor-ship (ii) Succession.	1.     Under Dayabhaga no living hindu has got any heir; succession opens after his death. Survivor-ship is not recognaised.

Joint family property

Mitakshara school	Dayabhaga school
A son, born to one of the coparceners, acquires an interest in the property from the moment of his birth and he cannot be ousted from such interest while he is alive.	In Dayabhaga succession opens to a son only after the death of the father. A Dayabhaga father is competent to make a testamentary 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.
The karta or manager has got a restricted right of transfer.	Succession once opens, shara of each heir becomes fixed, and every member (including karta) can alienate his share in any way he likes.
Property devolves on the male survivors only.	Property passes by inheritance only and may go to female heirs like widows, daughters etc.

Factum Valet

Mitakshara	Dayabhaga
1. The doctrine of factum valet was enunciated by the author of the dayabhaga. It was held by the privy council in the case of wooma Daee that the doctrine is recognized by the Mitakshara school also.	1. It is recognized by the Dayabhaga school to a greater extent. But factum valet is no defence when the act is immoral or against public policy ro prohibited by any act of Legislature or against express principles of Hindu Law.

Differences between the two Schools in Succession

Mitakshara	Dayabhaga
Property of a deceased Hindu is partitioned into two ways as the property is of two types- (a) Ancestor’s property, (b) Separate property. Ancestor’s property is partitioned in accordance to the Rules of Survivorship. But a Separate property is partitioned to the descendants.	Property is of two types- (a) Joint, (b) Separate. The descendants inherits the property whatever type it is.
In default of close heir, brother and immediate survivors inherit, the wife does not inherit.	If coparcener dies, his widow will get the property in default of a close heir but she cannot alienate.
The order of heirs is decided by mereness of blood.	The order of heirs is decided by the competence to offer Pinda and Sraddho to the deceased.

CONCLUTION

                    The hindu law is opposed to the theory of its divine origin. There are several schools of hindu law. The two schools sure that the hindus enactments and inheritance, Devolution of property, adoption the all thing is established the two schools.

Bibliography

         1.   S.K. ROUTH ELEMENTS OF HINDU LAW

        2.   www.google.com