The Family Law

Differences between Dayabhaga and Mitakshara School of Law

 

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Nitika, BBA LL.B, Lovely professional university ,Punjab

HINDU law:

Hindu law as an historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India.

There are two types of schools of Hindu law:

1.      MITAKSHARA school of Hindu law.

2.      DAYABHAGA school of Hindu law.

 

MITAKSHARA:

The Mitakshara is legal treaties on inheritance, written by Vijnaneshwara a scholar in  Western Chaiukya court in 12th century. It became one of  most influential texts in Hindu law, and its principles regarding property distribution, property rights, and succession are still in practice across most of India except for West Bengal and Assam where the Dayabhaga system is practiced. A salient feature is the principle of division of ancestral property held by the Hindu joint family. The Mitakshara School exists throughout India except in the State of West Bengal and Assam.

 ‘There are four Sub-Schools under  Mitakshara School’:

i.          DRAVIDA SCHOOL (MADRAS SCHOOL).

ii.          MAHARASHTRA SCHOOL (BOMBAY SCHOOL).

iii.         BANARAS SCHOOL.

iv.        MITHILA SCHOOL.

DAYABHAGA:

A Dayabhaga is a legal treatise dealing with various aspects of  hindu law. It was written by Jimutavahana and  Hemadri, and has much influenced the Hindu civil code of modern India. ‘The provisions relating to property rights are followed in West Bengal and Assam. Unlike the Mitakshara system, ancestral property of the hindu joint family can be partitioned among offspring generally after the father’s death, but in special circumstances the son has a right before the father’s death. Right to Stridhan is an absolute right, the wife having the right to sell, mortgage or use without even the husband’s consent.

Right of unmarried sons and daughters over the Stridhan is recognised. The owner has absolute right of disposing property at will. Ownership is determined according to Shastras. It exists in West Bengal and Asam only. It has sub-school. it differs from Mistakshara School in many respects. Dayabhaga School is based on the code of Yagnavalkya commented by Jimutvahana, Inheritance is based on the principle of spiritual benefit. it arises by pinda offering i.e. rice bali offering to deceased ancestors. Sapinda relation is by pinda offerings. This has led many scholars to conclude that the Mitākṣarā represents the orthodox doctrine of Hindu law, while the Dāyabhāga represents the reformed version. [1]

This is in direct contrast to the Mitākṣharā, which gives the sons a claim upon birth[2]. Each brother has ownership over a definite fraction of  the joint family property and so can transfer his share. 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 coparcener with other brothers of the husband. She can enforce partition of her share.

APPLICATIONS:

 

The Mitakshara Law applies to the whole of India except Bengal and Assam. Under this law as it existed until the amendments made by The Hindu Succession (Amendment) Act, 2005, the son acquires by birth an interest in the ancestral property. Ancestral property, under the Mitakshara Law, thus devolves on the death- of a coparcener by survivorship. Mitakshara law recognizes two kinds of devolution of property as follows: –

a ) Devolution by Succession is applicable to the Joint family property and

b) Devolution by Survivorship is applicable to Property held in severaltys by the last owner.

The Dayabhaga Law applies to communities like Bengalis and Assamese living in States of Bengal and Assam and other parts of world. According to this law, the son doesn’t acquire any right by birth in the ancestral property. The son’s right arises for the first time on father’s death. All properties thus, devolve by inheritance and not by survivorship. Under this school of law, the coparcenary is formed only on death of the father. Females can also be coparcener. Dayabhaga law thus recognizes only devolution by succession and it doesn’t recognize the devolution by survivorship as it recognizes in case of Mitakshara Law.

DIFFRENCE BETWEEN MITAKSHARA AND DAYABHAGA:

 

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

1.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 great-grandson. They collectively have co-ownership/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.

2.Coparcenary/Co-ownership:-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.

  1. 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.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.[3]

  1. The widow succeeds the father’s property rights on his death, even in cases where he held property jointly with his brother.[4]

 

Conclusion

 

Through this research paper we get the basic idea of the Mitakshara system which  is Conservative. It provides good security in times of difficulties as a member can rely on the joint family. However, sometimes a member can become a parasite. The Dayabhaga system is more liberal. Among the two the Dayabhaga is more likely to last in modern times with the growth of individualism, individual enterprise and economic compulsions.

This has elucidated the concept of partition and coparcenary. Thus this paper eill give the fair and gist idea of divisions of Hindu Law Schools and the sub divisions under these school of thoughts.

[1] Rocher,Jimutavahana’s Dāyabhāga: The Hindu Law of Inheritance in Bengal, (Oxford University Press, 2002), 23.

[2] Kane, P. V., History of Dharmaśāstra, (Poona: Bhandarkar Oriental Research Institute, 1975), Volume I, Part II, 704.

[3] http://www.differencebetween.net/miscellaneous/religion-miscellaneous/difference-between-dayabhaga-and-mitakshara-in-hindu-law/

[4] Robert Lingat, The Classical Law of India, (New York: Oxford UP, 1973), 172.s

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