Origin of Mitakshara &
Dayabhaga School
Origin: Conflict
of law is opposed to the theory of its divine origin. The Shastras which were
universally or very generally received became the subject of subsequent
commentaries and the different commentaries had given rise to the several
schools of Hindu law. The commentator put his own gloss on the ancient text;
and his authority having been received in one and rejected in another part of
India, schools with conflicting doctrines arose.(The collector of Madura vs.
Mootoo Ramalinga.)
An account
of origin and development of the schools of Hindu law was given by the Judicial
Committee of the Privy Council in Collector of Madura vs. Moottoo Ramalinga: “The
remoter sources of the Hindu law are common to all the different schools. The
process by which those schools have been developed seems to have been of this
kind. Works universally or very generally received became the subject of
subsequent commentaries. The Commentator put his own gloss on the ancient text,
and his authority having been received in one and rejected in another part of
India schools with conflicting doctrine arose. Thus the Mitakshara which is
universally accepted by all the schools except that of Bengal as of the highest
authority, and which in Bengal is received also as of highest authority
yielding only to the Dayabhaga in those points where they differ, was a
commentary on institutions of Yajnavalkya; and the Dayabhaga, which wherever it
differs from the Mitakshara, prevails in Bengal, and is the foundation of the
principal divergencies between that and the other schools, equally admits and
relies on the authority of Yajnavalkya. In like manner there are glosses and
commentaries upon the Mitakshara, which are received by some of the schools
that acknowledge the supreme authority of that treatise, but are not received
by all.” The Dayabhaga school prevails in Bengal; the Mitakshara school
prevails in the rest of India. These schools born of diversity of doctrines
mark a new stage in the evolution of Hindu law. One of the main differences
between these two principal schools of Hindu law relates, as has been pointed
out later on in some detail, to the law of inheritance. The meaning of the
doctrine of sapinda relationship in the law of inheritance instead upon by
Vijnaneswara whereby community of blood
is to be preferred to community in the offering of religious oblations is the
governing factor whereby under the Mitakshara law the right to inherit arises.
Under the Dayabhaga the right arises from spiritual efficacy, that is the
capacity for conferring spiritual benefit on the manes of paternal and maternal
ancestors. Another distinguishing
feature relates to certain incidents of the joint family. According to
Mitakshara law, each son acquires at his birth and equal interest with his
father and on the death of the father the son takes the property, not as his
heir, but by survivorship. The position of the son or grandson in the
Mitakshara is somewhat similar to that of sui heredes who under the Roman law
are regarded as having a sort of dormant ownership in the estate of their
father even during his lifetime. Their succession was not so much a succession
as coming into the enjoyment of what in a sense had already partly belonged to
them. According to the Dayabhaga school, 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 such of the property as is
left by the father, whether separate or ancestral, as heir and not by
survivorship. Partition is another branch of law on which there is some radical
difference between the two schools of law. Those are: 1) Mitakshara & 2)
Dayabhaga.
Mitakshara
school: Mitakshara
is a very modest title meaning a brief compendium is a running commentary on
the code of Yajnavalkya and a veritable digest of Smriti law. It was written in
the letter part of the eleventh century by Vijnaneshwara an ascetic also
mentioned as bearing the name Vijnana Yogin. In the Mitakshara which is more of
a digest than a mere commentary on a particular smriti, we find the
quintessence of the smriti law and its precepts and injunctions. The chief
merit of the work consists in its comprehensive treatment of almost all
important topics of the law and the synthesizing of various smriti texts. It is
of supreme authority throughout India except in Bengal . Mitakshara school is
followed throughout India except West Bengal and Asam in India and Bangladesh.
It was written in the last of the 1100 A.D. by Vigneshwara.
Dayabhaga
school: The
Dayabhaga is not based only on any special Smriti but it is the digest of some
important Smriti is commented upon by Jimutavahana. It is written down at any
time during first part of 1100 A.D. and last part of 1200 A.D. It differs from
Mitakshara school in many respects. It exists in Bengal and Asam state in India
and all over Bangladesh.
Sub-divisions
of Mitakshara school: It may be noted that the Dayabhaga is not divided into
any sub-schools. However, the Mitakshara is sub-divided into four schools
prevailing in different parts of India. These different schools have the same
fundamental principles, but differ in matters of details, especially with
reference to the topics of adoption and inheritance. These four sub-schools are
as follows:
a) The Banaras
school, which prevails in northern and north-western India;
b)
The Mithila school, which has most of its followers in
Bihar;
c)
The Dravida or Madras school, which prevails in Southern
India;
d)
The Maharashtra or Bombay school, which prevails in
western India.
Banaras,
Mithila, Maharashtra and Dravida are old names of the territories in which
these schools gained mastery. The Benaras school covers practically the whole
of Northern India with the exception of the Punjab where the Mitakshara law has
on certain points been considerally
modified by custom. The Mithila school prevails in Tirhoot and certain
districts in the northern part of Bihar. The Bombay school covers Western India
including the whole of the old Presidency of Bombay as also the Bihar. The
Dravida or Madras school covers Southern India including the whole of the old
Presidency of Madras. These schools differ between themselves in some matters
of detail relating particularly to adoption and inheritance. All these schools
acknowledge the supreme authority of the Mitakshara, but they give preference
to certain treatises and to commentaries which control certain passages of
Mitakshara. This mainly accounts for the difference between them.
The
Mitakshara and the Dayabhaga schools differed on important issues as regards
the rules of inheritance. However, this branch of the law is now codified by
the Hindu Succession Act , 1956, which has dissolved the differences between
the two. To-day, the main divergence between the two refers to certain matters
connected with the joint family system. Under the Mitakshara system, rights in
the joint family property are acquired by birth and as a rule, females have no
right of succession to the family property, which passes, by survivorship, to
the other male members of the family. Under the Dayabhaga system, on the other
hand, rights in the joint family property are acquired by inheritance or by
will, and the share of a deceased male member goes to his widow in default of a
closer heir. Although it is the
Dayabhaga school that prevails in Bengal, the Mitakshara is also regarder there
is being a very high authority on as questions in respect whereof therer is no
express conflict between the two schools. Likewise, the Dayabhaga is also
referred to sometimes in a case governed by Mitakshara law, on points on which
the latter is silent.(Mahavir vs. Rai Bahadur Sing, 18, luck. 585)
Jimutavahana: Jimutavahana who was the founder of
the Dayabhaga school and lived in the beginning of the twelfth century. Very
little is known about him, although there is sufficient evidence to indicate
that he was an eminent judge and Minister of a king of Bengal.
Jimutavahana’s
doctrines on the law of inheritance and the joint family system were totally
opposed to some basic rules of the Mitakshara school. Although he did not break
away from any of the authoritative texts of the leading smritikars, he did
differ basically from the Mitakshara system, which favours a particular mode of
devolution of joint family property at the time of the death of a coparcener.
This can clearly be seen from the points of difference between a Mitakshara and
a Dayabhaga coparcenery.
In
introducing certain radical innovations in a number of incidents of the joint
family and rights of the members of such a family, Jimutavahana purported to
base his theories on certain precepts of Manu, which he left were not properly
comprehended by previous commenlators. His theories show that his appeal is
more to reason and stern logic, than to precepts or precedents, and his
approach to most of the controversial questions is direct and forthright.
It is
rather difficult to say as to when the advanced views of Jimutavahana began to be accepted as bindidng authority in
Bengal, but it appears that his celebrated treatise, the Dayabhaga, soon
commanded recognition and acceptance as the fountain-head for a number of
commentators, the earliest of whom appears to be Srinath Acharya Chudamani.
Difference
between Mitakshara and Dayabhaga School:
Mitakshara
is anterior to Dayabhaga and it is a running commentary on the code of
Yajnavalkya written by Vijnaneswara, the Dayabhaga is the digest of all the
codes while giving preference to the code of Manu. The Mitakshara is still
regarded as a very high authority even in Bangladesh and in the province of
West Bengal in India. When Dayabhaga is silent on any point, Mitakshara may be
referred to similarly the Dayabhaga may also be reffered to in a Mitakshara
case on points on which the latter treatise is silent.
The two
schools mainly differ on the following points:
Mitakshara
school
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Dayabhaga
school
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Inheritance
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1.
The right of inheritance arises from propin-quity. Exception is the
daughter’s son.
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1.
The right of inheritance depends on spiritual efficacy.
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2.
There are three classes of heirs, a) sapindas,b) samanodakas,c)
Bandhus.
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3. There are three classes of heirs,a)sapindas b) sakulyas, c)samanodakas.
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3.So long there are
gotraja sapindas or samanodakasno bandhu or bhinna-gotra sapinda can
generally inherit.
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3. Both agnates and
cognates come in the list of sapindas and inherit before sakulyas or
samanodakas.
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4.
A larger number of cognatic heirs are recognized in Mitakshara than
Dayabhaga.
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4.
Some cognates are included in the sapindas and they enter into
succession straightway. But number of such cognates are less in Dayabhaga
than Mitakshara.
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5.
All sapindas are agnates with the exception of daughter’s son.
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5.
Sapindas are those who can confer spiritual benefit on the deceased
by offering pindas and include both agnates and cognates.
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Devolution of property
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1.
Under Mitakshara school property devolves in two ways,a) survivorship
b) succession
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1.
Under Dayabhaga no living hindu has got any heir; succession opens
after his death. Survivorship is not recognized.
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Joint family property
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1. A son, born to one of the
coparceners, acquires an interest in the property from the moment of his
birth and he cannot be ousted from such interest while he is alive.
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1. In Dayabhaga succession opens
to a son only after the death of the father. A Dayabhaga father is competent
to make a testamentary disposition of the whole of property. A son has got no
right to object to it. A son cannot claim partition during the lifetime of
his father.
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2.
The karta or manager has got a restricted right of transfer.
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2.Succession once opens,
share of each heir becomes fixed, and every member can alienate his share in
any way he likes.
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3.
Property devolves on the male survivors only.
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3.Property
passes by inheritance only and may go to female heirs like widows, daughters
etc.
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Factum valet
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1. The doctrine of factum
valet was enunciated by the author of he Dayabhaga. It was held by the privy
council in the case of Wooma Daee that the doctrine is recognized by the Mitakshara
school also.
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1.
It is recognized by the Dayabhaga school to a greater extent. But
factum valet is no defence when the act is immoral or against public policy
or prohibited by any Act of Legislature or against express principles of
Hindu Law.
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