SCHOOLS OF HINDU LAW- MITHAKSHARA AND DAYABAGHA!


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:

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 Yagna Valkya Smriti 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 of blood.  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:

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 Parvatha vardhani 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.

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 Nimaya Sindhu.  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, Mayukha Nimaya and Sindhu Schools.

DAYABHAGA SCHOOL OF THOUGHT

It exists in Bengal and Assam only.  The Yagna Valkya smriti 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.

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.

About these ads

40 thoughts on “SCHOOLS OF HINDU LAW- MITHAKSHARA AND DAYABAGHA!

  1. The right of a son’s son in his grandfather’s property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property “ceased to have effect”. So construed, s. 8 of the Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons.

    • Dear Mr.Dhundawat,

      There is various schools of thought on this ambiguous issue and still not clear.
      Personally, Support your view.
      ecopackindia team.

  2. A son goes to earn money, builts father a house, gives him money live comfortable life and finds out when he returns to retire, ther is no inherited property, house or agriculture land because father has sold evry thing without even telling his!!

    What kind of law is it?

    Please help answer the tragedy of a son who does not have any place to go.

    Thanks,
    Ram

      • A father with bad habits can sell all the inherited agriculture land and his children and wife go on the street begging!1 I think someone should fime a PIL in high court againt it and the father should not be allowed to sell the ancencestral agricultural land without the concent of his wife and adult children except his own share and even that after the partition.

        any comments on this will be appreciated.

        Thanks.

      • Dear Mr.Mishra,

        The law has sufficient safeguard(laws) against such misuse, hence, while alienating the minor`s property, the kartha has to obtain appropriate orders for the sale from the jurisdictional court and deposit the sale proceeds in a nationalised banks, till the minor reaches or completes 18 years of age.

        ecopackindia team

  3. Dear Sir,
    We come from Uttar Pradesh (district Sultanpur). My father sold all our ancenstoral inherited agricultural land without my mother’s, sister’s and my concent. My lives with my father, sister lives in India and I live in USA, we all are adults (80 yrs, 65 years and 57 years old). He did not take any money from the buyer (who is our cousin and a manipulator)even though it shows on the registry that the money has been given to him but no trace of money, no record of receiving or withdrawing, no pam number etc. I believe U.P has some other law and does not follow inheritance law and children do not have any right in the property – is it true?

    What are my options?

    Regards,
    Ram

    • Dear Misra,

      As far as our knowledge is concerned, there is only one law of succession which is enacted and prevalence in the Country Of India.1) If your father had not obtained any consideration for the sale, it must be a gift. Please check. 2). Tracing of the money is your business and records, pan number etc are your concern. It is easy to track it. 3). If it is self acquired property and private property of your father, then, none of you have any right, interest, share, claim and possession over it. If it is an ancestral in nature( you have to prove it in the Court Of law, with documentary evidence) you have every right to claim. Please contact an advocate with all available documentary evidence.

      ecopackindia team

  4. respected sir,
    my mother lives in uttar pradesh (district ghazipur) she is 70 yrs. my mother is 2 brother and 2 sister. my mother’s father had died in 1992. my mother wants a share in her father’s inherit properties (i.e. agriculural land and parental house) but her brothers are not giving my mother her share in the properties and treating her and even beating her when ever she ask for her share, when i asked the lawyer they said that she has got the right to take a share in the parental house but not in the agricultural land, when i researched on the net it showed that the hindu amendment law 2005 gives the right of share in agricultural land but the lawyers are not agreeing to it and are saying that the state law is different…. what are your option????? plzzzz replay

    regards
    neha

    • Dear Ms.Neha,

      1). Your mother or her representative, may lodge a police complaint regarding the assault, must be associated with documentary( Doctors certificate and eye witnesses) evidence.

      2). In the first place, you must have all the necessary documents( preferably-certified copies from the appropriate authorities) Original title deeds, partition deeds, mutations, phaani, revenue records and pass book etc regarding the land holdings.

      3). Check, whether the properties are self acquired or ancestral.

      4). Check, Whether there are subsisting will, alienation, gifts or registered partition deed before 20-12-2004.

      If the aforesaid documents are in your (mother) favour, file a partition suit. Your mother is entitled for equal share in the estate of her father.

      ecopackindia team

  5. Hon. Sir,
    We are resident of West Bengal. My mother died very recent living a instate property.
    I have no uterine brother or sister. My father is alive. Now he demand the 100% of my mother’s property. The property was inherited to her from her mother and father. Now what is proper mode of succession. Is it possible by any way my father deprive me. Pl. help.

    • Dear Sir,

      We are not very well versed in Dayabagha School of Thought and hence, any advice may mar your chances of demanding your share. Please contact an advocate at Kolkata.
      ecopackindia team

  6. Dear Sir,
    After The Hindu Succession Act-1956, is Dayabhaga still in affect in West Bengal?
    I am the only daughter of my parents.

    Pl answer.

    Thanks for the previous reply,

    Sanjukta.

    • Dear Ms.Sanjukta Das,
      The HSA 2005 is applicable to all states of india and hence, you have equal share as you are the first class legal heir and your father cannot deprive you of your share. As a measure of precaution, you may obtain an interim relief from the appropriate forum with immediate effect and protect your share.
      ecopackindia team

    • Dear Ms.Sanjukta Das,
      If there is any accrued income or any income which might accrue in the near future, you may get the benefits, if you approach the judiciary and the court will pass appropriate orders to secure your share.
      ecopackindia team

    • Dear Ms.Sanjukta Das,

      Desertion is an act of permanent withdrawal or abstinence or abandonment from living with one’s wife/husband without the spouse’s consent and without any justification.

      ecopackindia team

  7. Dear Sir,
    What can one do when his Lawyer is delaying to put a case or killing time for nothing and give the opponent more time to set up?
    Pl help.
    Thanks
    Pabitra

  8. Dear Sir,
    Equal rights in ancestral property for women,this benefit is not available to daughter married prior to or to registered in revenue records, which had been effected before the commencement of Hindu Succession (Tamil nadu Amendment) Act1989. This is to avoid unnecessary litigation, which may spoil cordial relations. please clarify this.
    Regards

    • Dear Sir,
      Equal rights to the daughters had been conferred on them by the Amendment in 2005, irrespective of their married status, but if the property had not been dispossessed or alienated through registered partition deed before 20-12-2004.
      ecopackindia team

  9. Dear Sir,
    in a family male siblings names have been entered in revenue records and township survey land register document was issued before 20-12_2004 HSA[amended]which will be considered as a valid or in valid for the female siblings to claim the rights?

    • Dear Sir,
      If the names had not been entered in the revenue records and in survey records the RIGHTS OF A FEMALE COAPRCENAR CANNOT BE EXTINGUISHED.
      ecopackindia team

  10. Dear sir,
    In a family, male siblings have done partition by writing in documents [unregistered] of a land with the written will of their parents,before the cental amendment act2005,so the rights for the female coapracenar is valid?

  11. Dear Sir,
    Succession is occasioned for properties of Hindu Undivided Families when there is a partition in the family or when a male coparcener dies leaving daughters. If such event had occurred after March 25, 1989, in Tamil Nadu, but before December 20, 2004, the benefit of enlargement of right will not be available for those who were married as on March 25, 1989, since the State law would be the ruling law on the date of succession.

    The relevant date in Andhra Pradesh is September 5, 1985, Karnataka is July 30, 1994, Maharashtra is June 22, 1994 and similar date in some other States. If no succession had taken place till December 25, 2004, the central amendment will have to be given effect, since there had been no occasion for application of State law, where there had been no partition or death of a coparcener before this date so that married daughter would also count for a share in the event of further partition or death on or after December 25, 2004.

    The above inference is drawn from the general principle that in matters of concurrent jurisdiction as in succession law.
    is it correct? Please clarify this.

    • Dear Sir,
      If any partition(registered), alienation, dispossession had been effected before the state amendments, which are valid and enforceable, if no such partition had been effected before25, Dec,2004, the female coparcenars irrespective of their married status, will definitely count for their share.
      You are right.
      ecopackindia team

  12. DEAR SIR
    I AM THE ONLY CHILD ( FEMALE) TO MY FATHER. HE IS MARRIED AGAIN BUT HAS NO CHILD FROM THERE ALSO.
    THE FAMILY IS UNDERGOING PARTITION .I HAD WAIVED OF MY RIGHTS 20 YEARS AGO BUT NOW WITH THE LAW CHANGE CAN THAT DOCUMENT GO AGAINST ME.
    HE IS PART OF A LARGE FAMILY WILL THEY HAVE TO INFORM ME OR CAN THEY DO IT WITHOUT MY CONSENT OR KNOWLEDGE.
    WITH MY FATHER ALIVE CAN I STILL GET MY SHARE?
    VERY CONFUSED……

    • Dear Ms.Pallavi,
      How did you waive your rights 20 years ago? What kind of documents did you execute? It is has to be examined to arrive at a conclusion.
      If the property is question is ancestral and if it had not been partitioned as per HSA 2005, you have right, claim and interest. Please contact a local advocate with all documentary evidence and may implead the partition proceedings.
      ecopackindia team

  13. Dear Sir,
    We are 2 brother’s & 3 Sister,s, My father have purchaged a land in Ara (Bihar) in the name of elder sister when she was minor now she is marriad and she have a mioner daughter and now she wants that land which have been puchaged my father before her marriage when she was minor and my father is agree to give it but my brother is opposing this. Again I am to say that my father have also purchaged a land in the name of my brother. Please tell me that what will the legal right of my brother, me,my other sister’s and may father

  14. dear sir
    am currently living in nagpur and am bengali…a dispute is brewing btween me and my maternal uncle after my mothers death in 2010…my maternal grandfather died in 1950 n my maternal grandmother in 1992 both died without leaving any will. my mother passed away in 2010 at age 70…….am interested to know as bengalis living in nagpur are we governed by mitakshara or dayabhaga .am told there is a SC judgement which said that dayabhaga will follow even if we are not living in bengal…the property in question is ancestral property orginally purchaed in 1910…..please advise…

    • Dear Sir,
      If the schedule property is situated in West Bengal and if you are Bengali descendant, you may claim. Please consult an advocate at Kolkata.
      ecopackindia team

  15. Sir,
    I am a Hindu & live in Ghaziabad, UP. My Father died in 2009, leaving his wife, two sons & two married daughter. He had a self accuried residential property in Ghaziabad. Please let me know if two married daughters have equal right in his property?

    • Dear Sir,
      If your father expired intestate(without making any testament or executing any will), all the first class legal heirs will have a claim over his estate.1). Your father`s mother(if she is alive-your granny) 2). Wife. 3) Sons. 4). Daughters. 5)Children or legal heirs of predeceased son or daughter.
      ecopackindia team

    • Dear Sir,
      The Will does not appear in the statutory documents which has to be registered under the registration act. Hence, you need not worry about it as long as it is genuine and have two witnesses.
      ecopackindia team

  16. I am bengali muslim and my permanent resident in the district of Dakshin Dinajpur under state of west bengal. myself adopted by my won uncle and make a Registered deed (warish purtra) in the year 1976. He had no child and wife divorsed long time back. He decesed in the year 2001. I inherited some agricultural land and the same mutation done in my name. Now my another uncle file a suit for his share. Now my question is in which law applicable in this case ? Muslim personal law sariyat act 1937 or general law.Please advise me.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s