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.
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.