SCHOOLS OF HINDU LAW
For the purpose of identifying this variance, the thesis of the School of Hindu Law has been propounded.
EMERGENCE OF SCHOOLS OF HINDU LAW
Originally, there were no schools of Hindu jurisprudence. Due to the emergence of various commentaries on Shruti and Smriti, different schools of thought arose.
Shruti means which has been heard. The shrutis include the four Vedas - Rig, Yajur, Sam, and Athrava along with their brahmanas. Vedas primarily contain theories about sacrifices, rituals, and customs.
Smriti means what is remembered. It includes those works which are created by the virtue of memory of sages and are further divided into Dharmashastras and Dharmasutras.
The commentary in one part of the country varied from the commentary in the other parts of the country.
In Rutcheputty v. Rajendra (1839), the privy council observed that different schools of Hindu law have originated because of different local customs prevailing in different parts of India.
EXISTENCE OF SCHOOLS OF HINDU LAW
In the codified area of Hindu Law, there is no scope for existence of Schools as the codified Hindu Law lays down uniform law for all Hindus.
The Schools of Hindu Law have relevance only in respect of the uncodified areas of Hindu Law.
SCHOOLS OF HINDU LAW
There are two main schools of Hindu Law:
Mitakshara School
Dayabhaga School
1. MITAKSHARA SCHOOL
The Yagnavalkya Smriti was commented on by Vijnaneshwara under the title Mitakshara.
The followers of Mitakshara are grouped together under the Mitakshara School.
The Mitakshara is not only a commentary on the Smriti of Yajnavalkya but it is also a digest of practically all the leading Smritis of Hindu Law.
The provisions of this School are applicable throughout India except in the State of Bengal and Assam.
FEATURES OF MITAKSHARA SCHOOL
Mitakshara School is based on the principle of the joint family system where ancestral property is passed on from generation to generation, and each member of the family has a right to a share in the property.
It also recognizes the concept of survivorship, where the share of a deceased coparcener automatically passes on to the surviving coparceners.
One of the unique features of Mitakshara School is that the coparcener male child (four generations from a common ancestor) acquires right in family property by mere birth.
A woman could never become a coparcener.
But the Hindu Succession (Amendment) Act, 2005 empowered women to become a coparcener like a male in ancestral property.
SUB – SCHOOLS UNDER THE MITAKSHARA SCHOOL
There are four Sub-Schools under the Mitakshara School which are as follows:
Madras School or Dravidian School of thought
Maharashtra School or Bombay School of thought
Benaras School of thought
Mithila School of thought
2. DAYABHAGA SCHOOL
The Yagnavalkya Smriti and some other Smritis are commented on by Jimutavahana under the title Dayabhaga.
It exists in Bengal and Assam only.
It has no sub-school.
FEATURES OF DAYABHAGA SCHOOL
Sapinda relation is by pinda offerings.
The right to Hindu joint family property is not by birth but only on the death of the father.
The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after the death of the father.
Each brother has ownership over a definite fraction of the joint family property and so can transfer his share.
On the death of the husband the widow becomes a coparcener with other brothers of the husband. She can enforce partition of her share.
DIFFERENCE BETWEEN MITAKSHARA AND DAYABHAGA SCHOOL
MITAKSHARA SCHOOL
Under this school the right to ancestral property arises by birth.
The son becomes the co-owner of the property sharing similar rights as of fathers.
The son attains the right to become the co-owner of the property and he can ask for the partition of the ancestral property even against the father and can demand for his share.
Under this school the survivorship rule is prevalent. In case of the death of any member in the joint family, his interest shall pass to other members of the family.
The members can’t dispose of their share of property.
The rule of blood relationship or consanguinity is followed in case of inheritance.
DAYABHAGA SCHOOL
Under this school the right to ancestral property is only given after the death of the last owner.
It does not recognise the birth right of any individual over ancestral property.
The father does not possess the absolute right to alienate the property.
The father has the absolute right of alienation of the ancestral property as he is the sole owner of that property during his lifetime.
The son has no right to ask for the partition of ancestral property against his father.
While in case of Dayabhaga school the interest of the member on their death shall pass on to their heirs like widow, son, daughters.
The members of the family enjoy the absolute right to dispose of their property.
Inheritance is governed by the rule of the offering of pinda.
