Hindu Jurisprudence Project.docx

HINDU JURISPRUDENCE PROJECT TOPIC COMPAIRATIVE STUDY OF SCHOOLS OF HINDU LAW

UNDER SUPERVISON Mr. ENAM FIRDOS

SUBMITTED BYSYED SUBOOR HUSSAIN LLM- 1ST Year

INDEX

Introduction Mitakshara School Dayabhaga School Difference between Mitakshara and Dayabhaga School Female as Coparcener Effect of Migration Bibliography

Introduction

The modern Hindu law is divided into two parts one is codified Hindu law and other is uncodified 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 an 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

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Collector of Madrai v/s Mottaramlingam

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. 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. The following commentaries besides the Mitakshara are accepted in this school: 1. Virmitrodaya 2. Dattaka Mimansa 3. Nimaya Sindhu 4. Vivada-Tandava 5. Balambhatti, and 6. Subodhini.

2. Mithila School It operates in Tirhut and certain districts of Northen Bihar. The main authorities are Vivada Chintamani and Vivada Ratnakara. Besides Mitakshara, the following commentaries are acceptable to this school:— 1. Vivad Ratrakar, 2. Vivad Chintamani 3. Smriti-sara or Smriti Tattvasara 4. Madan Parijata.

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. The authority of following commentaries besides Mitakshara was accepted in this school: — 1. Virmitrodaya, 2. Nirnayasindhu, 3. Parasara Madhavya, 4. Vivada Tandava

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. The following commentaries are held in high esteem in this school:— 1. Smriti Chandrika, 2. Parasara Madhavya, 3. Saras wati Vilas, 4. Virmitrodaya, 5. Vyavhara Nirnaya, 6. Dattaka Chandrika, 7. Dayavibhag, 8. Kesava Vaijayanti

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 agnatic2. 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 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.

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

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 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 must be

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2015(6) Kar L J 177

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.

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

Bibliography

1. Paras Deewan Family Law 2. Dr. S.R. Myneni Hindu Law 3. Hari Kohli Supreme Court on Hindu Law 4. Mullah on Hindu Law