family law

INDEX

Topic Page.no
1 INTRODUCTION 4

2 JOINT FAMILY- 7
3 PARTITION 7
4 THE HINDU SUCCESSION ACT IS BASED ON THE VISION 8
PROVIDED BY THE TWO SCHOOLS OF THOUGHT
5 TYPES OF SCHOOL 8
6 MITAKSHARA SCHOOL 8
7 DAYABHAGA SCHOOL OF THOUGHT 11
8 CONCLUSION

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INTRODUCTION

The codified Hindu law lays down uniform law for all Hindus. In the codified areas of Hindu
law, there is no scope for existence of schools the schools of Hindu law have relevance only
respect of uncodified areas of Hindu law.

Schools of hindu law emerged with the emergence of the era commentaries and digest .the
commentator put his own glass on the ancient texts, and his authority having been received in
one rejected in another part of india ,school with conflict doctrine arose.

There are two main schools of hindu law :

1. The Mitakshara school, and

2. The Dayabhagaschool or Bengal school.

The Mitaksharaschool has following sub school:

(i) Benares school (ii) Mithila school (iii) Maharashtra school or Bombay school, (v) Dravid or
Madras school.

The term “Dayabhaga” is derived from a similarly named text written by Jimutavahana. The
term, “Mitakshara” is derived from the name of a commentary written by Vijnaneswara, on the

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YajnavalkyaSmriti. The Dayabhaga and The Mitakshara are the two schools of lawthat govern
the law of succession of the Hindu Undivided Family under Indian Law. The Dayabhaga School
of law is observed in Bengal and Assam. In all other parts of India the Mitakshara School of law
is observed. The Mitakshara School of law is subdivided into the Benares, the Mithila, the
Maharashtra and the Dravida schools.1

The differences between the Dayabhaga and the Mitakshara schools of law may be categorized
under the following :

Main Difference Between The Two School

themitakshara and the dayabhaga schools fundamentally differ on certain matters . the basic
differences between the two are:

1) IN RESPECT OF LAW OF SUCCESSION – The mitakshara school bases its law of

inheritances on the principle of propinquity (nearness of blood-relationship or community
of blood ), while the dayabhaga school bases its law of succession on the principles of
religious efficacy or spiritual benefit .

The principle of propinquity means that one who is nearer I blood relationship succeeds. This is ,
purely a secular principle. The principle applied in this from would mean that ,for instance, sons
and daughters would succeed to the property equally and simultaneously as they are equally near
to their deceased parent , similarly , the daughter’s son and son’n son would equally and
simultaneously succeed to the property of their grandparent . but the mitakshara did not give full
effect to the principle , and limited it by two subsidiary rules: (a) exclusion of female from
inheritances ,and (b) preference of agnates over cognates. These subsidiary rules make the
mitakshara law of succession reactionary. Thus , if a hindu dies leaving behind a son’s son and
daughter’s son, the son’s will succeed to the entire property and the daughter’s son will be
excluded by the application of the second rule.2

The dayabhaga school bases its law of succession on the principles of religious efficacy, or
spiritual benefit that the one who confers more religious benefit on the deceased is entitled to
inheritance in prefrance to the others who confer less spiritual benefit . the conferment of

1
https://ecopackindia.wordpress.com
2
https://www.scribd.com

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religious benefit is based on the doctrine of offering of oblation or pindadana to the deceased.
although the principle is based on religious doctrine, its operation does not always lead to
preference of agnates over cognates . the dayabhaga has its own peculiar notions rules of
cognation.

Under the modern hindu law, this difference between the two main school is no longer tenable
.under the Hindu Succession Act 1956 , we have one uniform law of succession for all hindus, to
whatever school or sub school they may belong .

II) In respect of the law of joint family – (a) the mitakshara propounds the doctrine of son’s right
by birth in the joint hindu family property. It is unique contribution of this school to hindu
jurisprudence .Tthis doctrine means that the moment a son is born , he acquires an interest in the
joint family property which, by partition , can be , at any time converted into separate property .
no system in the world has anything near the doctrine of son’s birthright. This doctrine means
that each son on his birth acquires an equal interest with his father in joint family property . the
concomtitant principle to son’s birthright is the principle that the joint family property devolves
by survivorship .in the other words , joint family popery does not pass by inheritance but it goes
to who, among the group known as coparceners , surviveothers, that is ae able to live longer than
others . on the other hand ,under the dayabhaga school, the doctrines of birthright and the
devolution of property by survivorship do not find any place . Under the dayabhaga school, sons
have no right by birth in any property , and all properties devole by inheritance. So long as the
father is alive , he is the master of all properties whether ancestral or self acquired.3

(b) the concept of the joint family property under the mitakshara school implies the nation of
community of ownership and unity of possession . This expression the means that before
partition , no individual coparceners is a fluctuating interest, the death may augment it, births
may diminish it in other words , if there are more birth of sons , there are more person having an
interest in that property , and if at that stage partition takes place, their share of
urvivingcoparcenersin the property will be more . Since there is no concept of birthright under
the dayabhaga school, coparcener’s have specified and ascertained share joint family property

3
Id;2

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and their interest does not fluctuate on births or deaths in the family. Under both the school, the
principle of unity of possession is the same.

(c) From the aforesaid two nations , it follows that under mitakshra school neither the father nor
any other coparcener can ordinarily alienate the joint family property . Under the dayabhaga
school, there is no such restriction and each coparcener has full right of alienation of his
undivided share in the joint family property , though the karta ,like the mitaksharakarta can
alienate joint family property in certain special case.

The Codified Hindu Law does not affect the joint family system of Hindus and therefore both the
schools with their differences still operate. The Hindu Succession Act, 1956, affects the
Mitakshara Joint Family only on its fringes.

Joint Family- According to the Mitakshara law school a joint family refers only to the male
member of a family and extends to include his son, grandson and greatgrandson. They
collectively have coownership/Coparcenary in the Joint Family.Thus a son by birth acquires an
interest in the ancestral property of the joint family. Under the Dayabhaga law school the son has
no automatic ownership right by birth but acquires it on the demise of his father. In the
Mitaksharaschool the father’s power over the property is qualified by the equal rights by birth
enjoyed by a son, a grandson and a great grand son. An adult son can demand partition during his
father’s lifetime or his three immediate ancestors. He has a say in the disposition of the family
property and can oppose any unauthorized disposition of ancestral or family property .This is not
possible under the Dayabhagaschool as the father has overall and uncontrolled power over the
family property till death.

Coparcenary/Coownership- Under the Mitakshara law school all the members of the Joint
family enjoy coparcenary rights during the father’s lifetime. Under Dayabhaga School when the
father is alive the sons do not have coparcenary rights but acquire it on the death of the father. In
the Mitakshara School the coparcener’s share is not defined and cannot be disposed. In the
Dayabhaga the share of each Coparcener is defined and can be disposed.

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Partition- While both the Mitakshara and the Dayabhaga schools hold that the true test of
partition is in the intention to separate the manifestation of this intention is different in each of
the schools. In the case of the Mitakshara School the intention involves holding the property in
defined definite shares while in the Dayabhaga School there has to be a physical separation of
the property into specific portions and assigning of separate share to each coparcener. 4

In the Mitakshara system none of the members of the coparceners can claim a definite physical
share of the joint property. So partition in this system involves in ascertaining and defining the
share of the coparcener i.e. In the numerical division of the property. In the Dayabhaga system
each of the coparcener has a definite share in the joint family property even though the family is
joint and undivided and the possession is common. So partition in this system involves the
physical separation of the joint property into the separate shares of the coparceners and assigning
to each of the coparceners the specific portion of the property.

Rights of Woman- In the Mitakshara system the wife cannot demand partition. She however has
the right to a share in any partition affected between her husband and her sons. Under the
Dayabhaga this right does not exist for the women because the sons cannot demand partition as
the father is the absolute owner. In both the systems, in any partition among the sons, the mother
is entitled to a share equal to that of a son. Similarly when a son dies before partition leaving the
mother as his heir, the mother is entitled to a share of her deceased son as well as share in her
own right when there is a partition between the remaining sons.

THE HINDU SUCCESSION ACT IS BASED ON THE VISION PROVIDED BY THE

TWO SCHOOLS OF THOUGHT

Due to the emergence of various 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.

BECAUSE OF THESE DIFFERENCES TWO MAIN SCHOOLS EMERGED:

4
Id;2

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1)MITAKSHARA SCHOOL 2). DAYABHAGA SCHOOL of legal thoughts.

MITAKSHARA SCHOOL:

The Mitakshara School exists throughout India except in the State of Bengal and Assam. The
YagnaValkyaSmriti was commented on by Vigneshwara under the title Mitakshara. The
followers of Mitakshara are grouped together under the Mitakshara School. Mitakshara school is
based on the code of yagnavalkya commented by vigneshwara, a great thinker and a law maker
from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity i.e. the
nearest in blood relationship will get the property. The school is followed throughout India
except Bengal state. Sapinda relationship is ofblood. The right to Hindu joint family property is
by birth. So, a son immediately after birth gets a right to the property.

The system of devolution of property is by survivorship. The share of co-parcener in the joint
family property is not definite or ascertainable, as their shares are fluctuating with births and
deaths of the co-parceners. The co-parcener has no absolute right to transfer his share in the joint
family property, as his share is not definite or ascertainable. A women could never become a co-
parcener. But, the amendment to Hindu Sucession Act of 2005, empowered the women to
become a co-parcener like a male in ancestral property. A major change enacted due to western
influence. The widow of a deceased co-parcener cannot enforce partition of her husband’s share
against his brothers.

There are four Sub-Schools under the Mitakshara School:

The four sub school of the mitakshra subscribe to the mitakshara subscribe to the same
fundamental principles of the mitakshara , though in some matters of detail they differ from the
mitakshara and among themselves . There were some differences have now been swept away by
the hindu succession Act, 1956. How these differences cropped up may be illustrated by an
example from the old law of adoption .Tthe basic text on the widows power of adoption is that of
vasistha which runs: “Nor let a woman give or accept a son unless with the assent of her lord.”5
In the four schools this text has been interpreted differently. The mithila school interprets this

5
Id;1

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text to mean that the consent of the husband must be obtained at the time of adoption and , since
this cannot be done by a widow, a widow has no power of adoption .on the other hand, the
Bombay school explain away the text by saying that it applies only the adoption made during the
husband’s life time , and if a widow adopts a son , this text does not apply . therefore , a widow
has full power of adoption . The benaras school holds the view that for an adoption by a woman
,husband’s consent is necessary . If before his death the husband authorized her to make an
adoption , the widow can adopt. The Dravida school takes the view that if the husband dod not
give his consent before his death, the want authority on the part of his widow can be supplied by
the sapinda of the husband. Thus, we find that the same text has been subjected to four
interpretation leading to four views.

i.Dravidian School of thought : (Madras school)

It exists in South India. In the case of adoption by a widow it has a peculiar custom that the
consent of the sapindas was necessary for a valid adoption. (‘Sapindas’ – blood relation)

Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case):

The zaminder of Ramnad died without sons and in such a condition, the zamindari would have
escheated to the Government, the widow Rani Parvathavardhani made an adoption of a son, with
the consent of the sapindas of her husband.

But on the death of the widow, the Collector of Madhura notified that the Zamindari would
escheat to the State. The adopted son brought a suit for declaration of the validity of the
adoption. It was a question whether a widow can make a valid adoption without her husband’s
consent but his sapinda’s consent.

The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that
Hindu law should be administered from clear proof of usage which will outweigh the written text
of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that
in the Dravida School, in the absense of authority from the husband, a widow may adopt a son
with the assent of his kindred.

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ii. MAHARASHTRA SCHOOL: (BOMBAY SCHOOL OF THOUGHT)

It exists in Bombay (Mumbai) , From the above four bases, there are two more bases. They are
Vyavakara, Mayukha and NimayaSindhu. The Bombay school has got an entire work of
religious and Civil laws.

iii. BANARAS SCHOOL OF THOUGHT:

It exists in Orissa and Bihar. This is a modified Mitakshara School.

iv. MITHILA SCHOOL OF THOUGHT:

It exists in Uttar Pradesh near the Jamuna river areas. Apart from the above schools, there are
four more schools which are now existent today. They are Vyavakara, MayukhaNimaya and
Sindhu Schools.

DAYABHAGA SCHOOL OF THOUGHT

It exists in Bengal and Assam only. The YagnaValkyasmriti is commented on by Jimootavagana

under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many
respects.

Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana,

Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball
offering to deceased ancestors.

This school is followed in Bengal state only. 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.

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The widow has a right to succeed to husband’s share and enforce partition if there are no male
descendants.

On the death of the husband the widow becomes a co-parcener with other brothers of the
husband. She can enforce partition of her share.the recent law commission`s recommendations,
judgements by various courts, amendments and changes ratified by the parliament have death
knell on the ancient Hindu law of succession. These anarchic laws which has western influence
had adverse and unhealthy effects on the Hindu way of life and system, which was prevailing in
this land from time immemorial, gradually developing itself with the development of the
society.6

CONCLUSION

Finally, to remove all the gender disparity the Central Government on 2005 has took a good
move by giving every widow or we can say every female an equal right in the property and also
made them or became female coparcener. Also, it gave privilege to certain category of the
widows who were prior disqualified to get the rights in the property if any member dies intestate.

A coparcener cannot make a gift of his undivided interest in the family property, movable or
immovable, either to a stranger or to a relative except for purposes warranted by special texts."7

According to the Mitakshara law as applied in all the States, no coparcerer can dispose of his
undivided interest in coparcenary pro perty by gift. Such transaction being void altogether there
is no estoppel or other kind of personal bar which preclude the donor from asserting his right to
recover the transferred property. He may, however, make a gift of his interest with the consent
of the other coparceners." It is submitted by Mr. P.P. Rao, learned Counsel appearing on behalf
of the respondents, that no reason has been given in any of the above decisions why a coparcener
is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The
reason is, however, obvious. It has been already stated that an individual member of the joint
Hindu family has no definite share in the coparcenary property. By an alienation of his undivided
interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their
right to the property. The object of this strict rule against the alienation by way of gift is to

6
www.legalservicesindia.com
7
Mulla's Hindu Law,Fifteenth Edition, Article 258.

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maintain the jointness of ownership and possession of the coparcenary property. It is true that
there is no specific textual authority prohibiting an alienation by gift and the law in this regard
has developed gradually, but that is for the purpose of preventing a joint Hindu family from
being disintegrated. The rigor of this rule against alienation by gift has been to some extent
relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way
of will of a male Hindu in a Mitakshara coparcenary property. The most significant fact which
may be noticed in this connection is that while the Legislature was aware of the strict rule against
alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of
a mate Hindu in a Mitakshara coparcenary property. The Legislature did not, therefore,
deliberately provide

for any gift by a coparcenary of his undivided interest in the coparcenary property either to a
stranger or to another coparcener. Therefore, the personal law of the Hindus, governed by
Mitakshara School 0f Hindu Law, is that a coparcener can dispose of his undivided interest in the
coparcenary property by a will, but he cannot make a gift of such interest. Again, it may be
noticed in this connection that under the proviso to section 6 of the Hindu Succession Act, of the
deceased had left him surviving a female relative specified in class I of the Schedule or a male
relative specified in that class who claims through such female relative, the interest of the
deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate
succession, as the case may be, under the Act and not by survivorship. The devolution of interest
in coparcenary property by survivorship has been altered to testamentary or intestate succession,
as enjoined by the proviso to section 6 relating to a female relative or a male relative claiming
through such female relative. The substantive provision of section 6, however, enjoins that the
interest of a male Hindu in a coparcenary property will devolve by survivorship upon the
surviving members of the coparcenary and in accordance with the provisions of the Act. It is,
however, a settled law that a coparcener can make a gift of his undivided interest in the
coparcenary property to another coparcener or to a stranger with the prior consent of all other
coparceners. Such a gift would be quite legal and valid. The High Court has noticed most of the
above decisions and also legal position that a gift by a coparcener of his undivided interest in the
coparcenary property without the consent of the other coparceners is void. The High Court has
also noticed the provisions of sections 6 and 30 of the Hindu Succession Act.

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Bibliography
Books:

 Diwan Paras (2008), Modern Hindu law, Twentieth Edition, Allahabad Law Agency.

 Shastri Gopalchandra (2008), a Treatise on Hindu Law, Eighth Edition, New Delhi:
Ashoka Law House.

 Subzwari’s (2008), Hindu Law (Ancient & Codified), Second Edition, Ashoka Grover &
Sons.

 Gupte’s, Hindu Law, As Amended by the Hindu Succession (Amendment) Act, 2005 (39 of
2005) (w.e.f. 09-09-2005), Premier Publishing Company.

 Saxena Dr. Poonam Pradhan (2011), Family Law Lectures, Family Law-II, Third
Edition, Nagpur: Lexis Nexis Butterworths Wadhwa.

Articles:

 Hindu Law Reform, V. Govindarajachari

http://yabaluri.org/TRIVENI/CDWEB/HinduLawReform.htm Succession in Hindu Law:
 Analysis of the Hindu Succession Act, 1956, Raabia Abuzer Shams, Student of Chanakya
National Law University, Patna http://www.mightylaws.in/878/succession-hindu-law-
analysis-hindu-succession-act-1956

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Websites:
 www.indiannow.org.com (visited on October 25, 2017)

 www.shodhganga.inflibnet.ac.in (visited on September 23, 2017)

 www.preservearticles.com ( visited on September 22, 2017)

 www.britanica.com (visited on September 20, 2017)

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