October 2, 2022

Mitakshara and Dayabhaga School of law

This article is written by Manjeet yadav, a law student of BA LLB 2ND YEAR (at the time of article posting) at AJEENKYA DY PATIL SCHOOL OF LAW. She can be contacted at [email protected]

Mitakshara and Dayabhaga school

Mitakshara and Dayabhaga are the two schools of law that growers the law of succession of the Hindu Undemeaned family under Indian law. Under Mitakshara school right to austral property arises by birth hence the son becomes the co-owner of the property showing similar rights as of the Fathers. Wherein Dayabhaga school the right to austral property is only given after the death of the last owner. The two principal school Mitakshara and Dayabhaga. these two schools of Hindu law are marked by a vital difference of opinion and interpretations of the smritis 

  • Mitakshara literally means a brief compendium”. Mitakshara is a commentary on yajnavalkya smriti by vigananeshwara as told to him by his Guru visvaruspa and written in the latter half of the events country. It is called Riju Mitakshara. Tika or Riju Sam Mitakshara or parmitakshara. Vijanaeshwara in his commentary mention that the code of vajnevalky a was explained to him by his Guru Visvarupa in a hard and diffused language and the same has been abridged by him in a simple and concise style.

Mitakshara system

The primary source of Hindu law is common to all Hindus and become the subject for subsequent commentators. With various commentators enplaning the same source, the difference in the work is initiable. Added to this was the regionuise acceptance of the authority or superiority of a particular work and a compartment reignition to others. Thus Mitakshara, a commentary on the Yajnavalkya smriti by vijanaveshwara, become the authority for the whole of India except parts of Punjab and Bengal. In Bengal also, Mitakshara has ruined as high authority except with respect to those points on which it conflicted with Dayabhaga that is of paramount authority in Bengal. Mitakshara school of law is based on the law of propinquity (nearness of blood-relationship) it is moved on the secular principle. It explains the exclusion of females from inheritance (First principal) it is terminated by the 2005 amendment of Hindu succession Act. Thus, a gets all interitem a daughter and between a son’s son and a daughter’s son, the former gets all the inheritance. In law of joint family, Mitakshara school of law gives a son’s rights by luth in joint family property among the member can be at any time subsequently. This system in Hindu have is unique in the world coparcenary devolves by surveyor ship. This is community ownership.

Mitakshara sub-school: 

  1. Mithila School: Bihar “A woman may not adopt without consent of her lord’’. So, widow cannot get consent of herself, so she cannot adopt. 
  2. Bombay or Maharashtra school: western India widow has no lord, so she can choose to adopt 
  3. Banaras school: North India except Punjab (customary law) Husband must have given consent before his death.

Dranida or Madras school: south India Sapinda can give consent after his death to widow for adoption difference swept away by Hindu succession Act, 1956 and Hindu Adoption and maintence Act 1956.

Dayabhaga School of law 

Dayabhaga is written by jimutavahana in around the latter half of the twelfth century, it is not a commentary on a specific work but a digest of all the codes.it was part of a digest of all the codes. It was part of a larger work titled “Dharamaratna” and is valuable work on the laws of inheritance and succession. It deals with partition and inheritance Dayabhaga school prevails in Bengal under Dayabhaga, the right arises from spiritual efficacy, that is the capacity for conferring spiritual benefit on the son does not acquire any interest by birth in ancestral property. His rights arise for the first time on the father’s death. On the death of the father, he takes much of the property as is left by the father, whether separate or ancestral, as her and not by survivorship.

  1. Benares School 

The Benares school as already mentioned prevails in the whole of north Indian with the exception of the Punjab and the Viramitrodaya, to which reference has already been made above, ranks there as an especial authority. Of the other authorities to which great weight is attached, reference must be made to the Nirnayashindhu and the Vivadatandava of Kamalakara. Kamalakara is a versatile and an eminent write of the seventeenth century two of whose numerous works have acquired great authority. His Nirnayashindhu, which is the best known of his works though not work on civil law, is accepted as authoritative guidance in a number of decisions of various high courts on question involving ceremonies and on matters affecting devolution of property and heirship. His Vivadatanadava is a treatise on the law of inheritance. In most emphatic word he deprecated the assertion of inheritance and heritable rights of women other than those expressly enumerated by certain earlier lawgivers. Kamalakara, comparatively, a modern author, is of the same time as Nikanta Bhatta (who is said to be his cousin), one of the great Hindus jurisprudence and Mitramishra, the author of the Viramitrodaya. Both his works Nirnayasiindhu and vivadatandva are entitled to weight wherever Mitakshara prevail, but they are accepted as of particularly great authority benaras school when not in conflict with any higher authority. The Benares School is sometimes called the most orthodox of the different school of Hindu law.

  1. Mithila School 

The Mithila School has at times followed almost implicitly the Vivada Chintamani and the Vivada Ratnakara. Though the Vivada Chintamani, the Vivada Ratnakatra and the Madana parijata are the favoured Mithila authorities, it is of importance to notice that the law of the Mithla school is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila school is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila school has departed from the law of the Mitakshara. Neither incidental dicta in any of those works nor any solitary interpretation of statements in them founded on any ambiguous texts from the smritis can control the plain meaning of any rules laid down in the Mitakshra. Of these Mithila authorities, the vivida Chintamani is given the first place being a work of unquestioned merit written by vachaspatimishra a celebrated nibandhkar of the fifteenth century. Vachaspatimishra is also the author of vivida Chintamani, another work of allowed excellence. These two works of his are not commentaries on any code but digests and are most probably part of one and the same treatise. Weight is also attached in Mithila to Vivadachandra by Lakshmi devi, the Smritisara by Shrikaracharya, the Smritisara by Harinathopadhyaya and the Dwoita-parishishta by Keshava Mishra. The Kalpataru by lakshmidhara is work that is freely cited by the exponents of the Mithila school.

Vivaldi Ratnakar the vivda Ratnakar mentioned above is a digest that has been referred to in numerous decisions. Its author was Chandeshwara, a minister of Harasinha, who was a Mithila king. Vachaspatimisra has stated that he had considered the Ratnakar and it would seem that this work was written in the first quarter of the 14th century. Chandeshwara has given the year in which he had performed Tula Purusha in which he distributed his own weight of gold amongst Brahmins.

  1. Maharashtra or Bombay school

The Maharashtra or Bombay school, also known as the school of western India, claims in respect of certain matter to be the most liberal of the different school of Western Hindu law. In western India, sometimes mentioned as the Bombay Presidency, the pre-eminence of the Mitakshara is generally admitted. The relative position of the mitakshara and the Vyavahara mayukha which are proximate authorities as well as of the other works accepted as authorities in the old Bombay presidency and in other parts of Western Indian is discussed in several cases decided by the Bombay High court. Such works as the Samskara Kaustubh, and the Subodhini are consulted and reference is made to the Viramitrodaya and other works of the Mitakshara School. Reference has also been made by that Court to the Balamabhatti, and to the interpretation given there to certain expression in the Mitakshara. In the last-mentioned work, it is stated that it was written by the lady named Laskshmidevi and at one time, considerable importance was attached to the opinions of this author by the High court of Bombay, till it was Felt that some of those opinions were rather of the nature of what in case of judicial decisions would amount to not more than mere obiters.

  1. Dravida or Madras School

the Dravida or Madras school, also know as the school of southern India, leans heavily on the smriti Chandrika, which is intended to supplement and not replace or abrogate the Mitakshara. The Smriti Chandrika of Devanna Bhatta, who flourished in the close of the law of inheritance and was considered by Colebrook to be a work of uncommon excellence, equal, if not superior, to Parashar Madhaviya which also is a leading authority in the south. Little, if anything, is known of Devanna Bhatta but there is adequate data that the work was compiled sometime at the beginning of the twelfth century has all along Had commanding influence in the south. Little, if anything, is known of Devanna Bhatta but there is adequate data that the work was compiled sometime at the beginning of the great Vijayanagar Empire. Devanna Bhatta cites copiously from Katyayana and Brihaspati which shows the great eminence and authoritative status which had been achieved by the authors of those leading Smritis. However, for the smriti Chandrika, some texts of Brihaspati and a number of texts of Katyayana would have probably been lost to us. The work also refers to a commentator spoken of as Sangrahakara to whom was attributed the authorship of an abridged edition of Manu’s institutes. The Smriti Chandrika is not commentary but a Nibandha (digest) and a work of especial authority of the Dravida or Madras school, in which it has originated. However, it is to be noted that it is accepted there in point of authority as next to the Mitakshara. Therefore, in the absence of any evidence of usage, indicating consciousness of the people governed by that school that any opinion expressed in the smriti Chandrika is living law, the court would not be justified in departing from any doctrine of the Mitakshara, and prefer any text of the Smriti Chandrika. In Buddha Singh v Laltu Singh the judicial committee of the privy council observed that the author of the Mitakshara in several essential rules of law. It seems, to say the least, doubtful whether any enunciation in the smriti Chandrika can be safely applied, except perhaps by way of analogy, to explain a dubious or interminate phrase or team in the Mitakshara. 

Hindu law has the oldest pedigree of any knows system of jurisprudence, and even now it shows no sign of decrepitude.’’- Henry Mayne. 

Origins of Hindu Law

it is believed that Hindu Law is a divine Law. It was revealed o the people by God through Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life explained in the Indian subcontinent Have been leading their lives by Following the Guidelines and concepts given in the Vedas. 

These guidelines have evolved into rules followed by the people and enforce by the rules and have thus become de facto law. In this modern time, In modern times, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are- Hindu Marriage ACT 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.

Source of law: 

The phrase “source of Law” has several connotations. It may be the authority Which issues rules of conduct which are recognized by courts as binding.

CONCLUSION

Mitakshara is an orthodox school whereas the Dayabhaga is a reformist school. The Mitakshra and Dayabhaga school differed on important issues. As regards the rules of the law is now codified by the Hindu by the Hindu succession ACT, 1956, which has dissolved the difference between the two. these schools have widened the scope of Hindu law and explicitly contributed to its development. The importance of Mitakshara & Dayabhaga school in this generation is not the way it was before. Mitakshara has hardly got importance today except with regard to coparcenary property rights of Hindu law was replaced by parliamentary statues in 1955 and 1956 viz. the Hindu succession act, 1956 the Hindu adoptions. And Maintenance Act has substituted the Mitakshara and the Dayabhaga law except with the regard of succession to ancestral property, which continues to be cornered by the Mitakshara vide section 6 of the Hindu Succession Act, 1956. Even though the Mitakshara may not be in vogue today except in matters of Hindu coparcenary property, yet the path it has shown is the path which India should pursue its progress and prosperity. 

Reference 

Family Law by Kusum Pradhan

Mulla Hindu law volume 1 part

https://indiankanoon.org/doc/685111/