SCHOOLS OF HINDU LAW

Introduction –

Due to the emergence of various digests and commentaries on SMIRITI and SRUTI, different schools of
thoughts arose. The commentary in one part of the country varied from the commentary in the other parts of
the country.

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

- 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.

Mitakshara –
- Mitakshara is one of the most important schools of Hindu law.
- Mitakshara School prevails throughout India except in Bengal and Assam.
- Vignaneshwara Commentary on Yagnavalka Smriti is called Mitakshara, which means ‘measured in
words’.
- The Mitakshara has a very wide jurisdiction. However different parts of the country practice law
differently because of the different customary rules followed by them.

- The Inheritance is based on the principle or propinquity i.e. the nearest in blood relationship will get
the property.

Dayabhaga –
- This is also one of the most important schools of Hindu laws.
- It exists in Bengal and Assam only.
- Dayabhaga School got its name from a leading smritis named Dayabhaga written by Jimutavahana.
- It has no sub-school.
- Its primary focus was to deal with partition, inheritance and joint family.
- Inheritance is based on the principle of spiritual benefit. It arises by Pinda offering i.e. rice ball
offering to deceased ancestors.

Mitakshara is an orthodox School whereas the Dayabhaga is Reformist School.

Note: -
q (i) Under the new Hindu Law, the difference between the two schools are no longer tenable.
q (ii) Under the Hindu Succession Act,1956 we have one uniform law of succession for all Hindus,
whatever school they may belong.

Migration –

v 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.
v 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.

v So also, if a Hindu governed by the Mitakshara migrates from Bombay to Calcutta, he is still
presumed to be governed by the Mitakshara, unless he displaces such a presumption in the manner
stated above. It is for this reason that it has rightly been said that Hindu Law is not a lex loci, i.e., a
local law, but it is, in every sense, a personal law.

Case laws –

Mst.Anjubai v. Ramchandra Rao, AIR 1960

The case states that 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.

Basani v. Dattoba
The case states that the ordinary presumption, therefore, is that a Hindu is governed by the law of its land
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.

Abdurahim v. Halimabai
In this case the 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.”

It is also to be noted that it is the law as it existed at the time of the migration that continues to govern the
migrated members. Thus, such persons are affected by decisions of the Courts of their State of origin which
declare the law as it existed at the time of the migration, but not by customs incorporated in its law after the
date of migration.

When such migration takes place to a country outside India, the Court may presume that such a family has
adopted the law of that country, if it is shown that the family has so acted as to raise an inference that they
have cut off all the ties of their earlier environment.

v 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.

As regards - Mitakshara Dayabhaga

Doctrine of Factum Valet It is less inclined towards the It is completely inclined towards
Doctrine. Doctrine.
Inheritance The Principle of Inheritance is The Principle of Inheritance is
Consanguinity (blood relationship). spiritual efficacy.
Cognates are postponed to agnates. Some nearer cognates like sister’s
son are preferred to many agnates.

Alienation Members of the joint family cannot Any members of joint family may
dispose of their shares while sell or give away his share even
undivided. when undivided.

Joint Property Right to property arises by birth (of Right to property by death (of the
the claimant); hence the son is a co- last owner); hence son has no right
owner with the father in ancestral to ancestral property during father’s
property. After the commencement lifetime.
of the Hindu Succession The interest of every person would,
(Amendment) Act,2005, the on his death, pass by inheritance to
daughter of a coparcener is also a his heirs, like widow or daughters.
coparcener. On death of the holder of the
The interest of a member of the property, the property will fall on his
joint family would, on his death, legal heirs according to the rule of
passed to the other members by inheritance or succession.
survivorship. Section 6(3) of the
Hindu Succession Act, as
substituted by the Hindu
Succession (Amendment) Act,2005
abolishes the principles of
survivorship.

Types 1. Ancestor’s property 1. Joint

2. Separate property 2. Separate