schools of hindu law

SCHOOLS OF HINDU LAW

By:Rashmi dubey

FACULTY OF LAW

Schools of Hindu Law came into being when different commentaries

appeared to interpret “Smritis” with reference to different local customs in

vogue in different part of India.

In Rutchepatty v/s. Rajendra(1839) , it has been observed by the Privy

Council that the different local customs prevailed in different provinces of

India. The commentators of the smritis could not ignore the local customs

and usages and while interpreting the texts, they eventually incorporated

different local customs. The local conditions and customs of the different

provinces have, therefore, gone to mould the principles of law prevailing in

each provinces.

Introduction:

Process of Development:o In Collector of Madhura v/s. Mooto Ramalinga, the Privy Council has

held that “The ancient sources of Hindu Law i.e., Smritis are common to

all different schools. The process by which those schools have been

developed seems to have been of this kind. It works universally or very

generally received becomes the subject of subsequent commentaries.

The commentators puts his own gloss on ancient texts; and his authority

having been received in one and rejected in another part of India, thus

the school with conflicting doctrines arose.”

Schools of Hindu Law:- The Schools of Hindu Law has emerged from the commentaries and

digests. There are two main schools namely:-

1) Mitakshara School and

2) Dayabhaga School

Mitakshara and Dayabhaga are the two important schools of Hindu Law

which has given us the required information about the present legislated

laws.

It remarked Smritis and didn’t agree on all the concept of smritis.

Vignaneshwara Commentary on Yagnavalkya Smriti is called Mitakshara,

which means ‘measured in words’.

Dayabhaga School got its name from a leading smritis named Dayabhaga

written by Jimutavahana.

Mitakshara is written on later part of 11th century – comprehensive

commentary dealing with all titles of Hindu Law.

Mitakshara prevails in all over India except the state of Bengal and Assam.

Mitakshara School has been categorized in five school:-

i) The Benaras School – applicable in whole of North India including

Orissa and Madhya Pradesh.

ii) The Mithila School- applicable in Tirhoot and North Bihar

……School of Hindu Law

iii) The Bombay or Maharashtra School - prevails in whole of Bombay and

Maharashtra.

iv) The Punjab School- prevails in North-East Punjab.

v) Difference between Mitakshara and Dayabhaga School:-

MITAKSHARA :-

1) As regards Joint Property: Right to property arises by birth(of the claimant); hence the son is a co-owner with

the father in ancestral property. After the commencement of the Hindu Succession

(Amendment) Act,2005,the daughter of a coparcener is also a coparcener.

…..Schools of Hindu Law

The interest of a member of the joint family would, on his death, passed to

the other members by survivorship. Section 6(3) of the Hindu Succession

Act, as substituted by the Hindu Succession (Amendment) Act,2005

abolishes the principles of survivorship.

2) As regards Alienation:

Members of the joint family cannot dispose of their shares while

undivided.

3) As regards Inheritence:

The Principle of Inheritence is Consanguinity (blood relationship)

.....Schools of Hindu Law

3) As regards Inheritance:

But in Mitakshara School of Law cognates are postponed to agnates.

4) As regards Doctrine of Factum Valet:(Meaning:- fact cannot be altered

by Hundred texts).

It is less inclined towards the Doctrine.

DAYABHAGA:-

1) As regards Joint Property:

Right to property by death (of the last owner); hence son has no right to

ancestral property during father’s lifetime.

…….Schools of Hindu Law

The interest of every person would, on his death, pass by inheritance to

his heirs, like widow or daughters.

On death of the holder of the property, the property will fall on his legal

heirs according to the rule of inheritence or succession.

2) As regards Alienation:-

Any members of joint family may sell or give away his share even when

undivided.

3) As regards Inheritence:-

The Principle of Inheritence is spiritual efficacy(i.e., spiritual efficacy) Some nearer cognates like sister’s son are preferred to many agnates.


4) As regards Doctrine of Factum Valet:-

It is completely inclined towards Doctrine.

vi) Note:-

(i) Under the new Hindu Law, the difference between the two schools are

no longer tenable.

(ii) Under the Hindu Succession Act,1956 we have one uniform law of

succession for all Hindus, whatever school they may belong.

vii) Migration and The School of Law:-

On migration the family continues to be governed by the law of locality

of origin and the burden is heavy on the party alleging otherwise.


The presumption is that if a family migrates from one state to another, it

carries with it the customs regulating succession and family relations

prevailing in the state from where it comes. However, this presumption

may be rebutted by proving that the family has now already adopted the

law and usages of the state to which it has migrated.

It is a settled law that there is a presumption that parties residing in a

particular area are governed by lex loci unless migration is proved. The

burden of proving that the family came from other tract and is, therefore,

governed by some other branch of Hindu Law, is on the party which asserts

it (Mst.Anjubai v. Ramchandra Rao, AIR 1960). The ordinary

presumption, therefore, is that a Hindu is governed by the law of its land

…..Migration and The School of Law

where he resides. This presumption is, however, not based on the theory of lex

loci, but on the ground of its being a personal law(Basani v. Dattoba).

Their Lordship of the Privy Council observed : “Where a Hindu Family

migrates from one part of India to another, prima facie they carry with them

their personal law, and if they are alleged to become subject to a new local

custom, this new custom must be affirmatively proved to have been adopted

but when such a family emigrates to another country and being themselves

Mohammedans, settle among Mohammedans, the presumption that they have

accepted the law of the people whom they have joined seems to their

Lordships to be one that should be much more readily made. The analogy is

that of a domicile on settling in a new country rather than the analogy of a

change of custom on migration within India.”(Abdurahim v. Halimabai)

…….Migration and The School of Law

Of course, if nothing is known about a man except that he lived in a

certain place, it will be assumed that his personal law is the law which

prevails in that place. In such a case domicile plays an important role.

……Migration and The School of Law

THANK YOU