P a g e | 1

Family law-i
Project work on
School of hindu law

Submitted to:
Dr. Shaiwal satyarthi
Faculty of law

Submitted by:
Mohit madhav
Roll no: 754
3
rd
semester (2
nd
year)
Section a
P a g e | 2

TABLE OF CONTENTS

ACKNOWLEDGEMENT.................................................................... (III)
RESEARCH METHODOLOGY........................................................... (IV)
OBJECTIVE..................................................................................... (IV)
Introduction.............................................................. (5-7)
Applicability of Hindu law..................................... (8-15)
Differences between two schools of Hindu law... (16-19)
Case laws................................................................. (20-23)
Conclusions.............................................................. (24-25)
Bibliography........................................................................... (26)










P a g e | 3

ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project,
although prepared by me, is a culmination of efforts of a lot of people.
Firstly, I would like to thank our teacher, Dr. Shaiwal Satyarthi Sir
for his valuable suggestions towards the making of this project.
Further to that, I would also like to express my gratitude towards
our seniors who were a lot of help for the completion of this project.
The contributions made by my classmates and friends are, definitely,
worth mentioning. I would like to express my gratitude towards the
library staff for their help also.
Last, but far from the least, I would express my gratitude towards
the Almighty for obvious reasons.

MOHIT MADHAV








P a g e | 4

RESEARCH METHODOLOGY
For the purpose of research, the researcher has followed the doctrinal method of
research. The researcher has relied upon various secondary sources to look for
information related to the information about the Schools of Hindu Law. The
researcher has done his initial research keeping in mind the various frequently
asked questions related to this topic.
The researcher has referred to renowned authors on subjects relating to Family
Law. The researcher has started his research by looking at the given topic
critically. The researcher has further relied upon various primary sources of
information like newspapers, law journals, editorials and articles to look for
information related to various schools of Hindu law.



Aims and Objective
The main aim of the research work is to know in detail about all schools of
family law and also about the sub schools of two most important schools of
Hindu law i.e., Mitakshara and Dayabhaga School of Hindu Law and the
differences between the two Schools of Hindu law.






P a g e | 5

CHAPTER-1
INTRODUCTION
Hindu law has two main schools: the Mitakshara school and Dayabhaga school. The
Mitakshara (a concise work) is a commentary on the code of Yajnavalkya and is written by
Vijnaneshwar. The Dayabhaga is a digest of all the codes and is written by Jimutavahana.
The Mitakshara is the orthodox school, whereas the Dayabhaga is a reformist school of
Hindu Law.

The Dayabhaga prevails in Bengal and North-East States and it has no sub-schools. The
Mitakshara prevails in rest of India and it has four sub-schools, the Benaras (Northern and
North-west), the Bombay (Western), the Mithila (Bihar), and, the Dravida or Madras school
(South India). Although the Dayabhaga prevails in Bengal, the Mitakshara is also regarded
there, as a very high authority on questions in respect whereof there is no express conflict
between the two. Likewise, the Dayabhaga is also referred to sometimes in a case governed
by Mitakshara law, on points on which the latter is silent.
Where a Hindu family migrates from Maharashtra (where the Mitakshara law prevails) to
Bengal (where the Dayabhaga prevails), the presumption is that the family continues to be
governed by the Mitakshara law unless it is shown that the family has abandoned the law of
the province of its origin (i.e. Maharashtra) and adopted the law of the province where it has
settled. Thus, the Hindu law is not a lex loci i.e. a local law, but it is , in every sense, a
personal law.
In the modern Hindu Law, schools have relevance only the respect of the uncodified Hindu
Law. They have lost all their relevance in regard to the codified Hindu Law.

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.
School means rules and principles of Hindu Law which are divided into opinion. It is not
codified. There are two Schools of Hindu Law:-
a) Mitakshara
b) Dayabhaga.

Mitakshara School prevails throughout India except in Bengal. It is a running commentary on
the code of Yajnavalkya (Yajnavalkya Smriti).



Mitakshara is an orthodox School whereas the Dayabhaga is Reformist School.

The Mitakshara and 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. Now, the main difference
between them is on joint family system.
P a g e | 6

Mitakshara- Rights in the joint family property is acquired by birth, and as a rule, females
have no right of succession to the family property. The right to property passes by
survivorship to the other male members of the family.
Dayabhaga- 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 closed heir.
MITAKSHARA SCHOOL:
The Mitakshara School exists throughout India except in the State of Bengal. The
Yagnavalkya Smriti was commented on by Vijnaneshwara 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 Vijnaneshwara, 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. 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
(But now it has been amended by 2005 Amendment Act). 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. The widow of a
deceased co-parcener cannot enforce partition of her husbands share against his brothers.
A woman could never become a co-parcener. But, the Hindu Succession (amendment) 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.

Sub-Schools under the Mitakshara School:
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). The
main authority accepted by this school is Smriti Chandrika authored by Devananda Bhatta.

ii. Maharashtra School: (Bombay School of Thought)

It exists in Bombay (Mumbai) and Gujarat. The Bombay school has got an entire work of
religious and Civil laws. The main authority accepted by this school is Vyavahara Mayukha
authored by Nilakantha.

iii. Banaras School of Thought:

It extends of whole of northern India except in Punjab where its authority is modified by
customary law in rural areas. The main authority accepted by this school is Viramitrodaya
authored by Mitra Mishra.

iv. Mithila School of Thought:

It exists in Tirhut, North Bihar and Uttar Pradesh near the Jamuna (Yamuna) river areas. The
main authority accepted by this school is Vivad Chintamani authored by Vachaspati Mishra
and Vivad Ratnakara authored by Chandeshwar Thakur.

P a g e | 7

v. Punjab School:

It prevails in the part of the country called East Punjab. This School is chiefly governed by
local customs. The main authority accepted by this school is Viramitrodaya authored by
Mitra Mishra and local customs of Punjab.
DAYABHAGA SCHOOL OF THOUGHT

It exists in Bengal and Assam only. The Yagna Valkya smriti and some other Smrities are
commented on by Jimutavahana under the title Dayabhaga. It has no sub-school. It differs
from Mistakshara School in many respects. Dayabhaga School is based mainly 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 and some parts of Assam only.

The main features of this School are as follows:
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 husbands 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.









P a g e | 8

Chapter-2
Applicability of Hindu law
Application of Hindu Law
Persons subject to Hindu Law-
Shastri Yagna Purushdasji v. Muldas Bhundardas Vaishya
1
- It is extremely difficult,
though not impossible, to define the Hindu religion in the way the other religions are defined.
It embraces numerous views and ways of life.
The term Hindu is not to be found anywhere in the Dharmashastras. It is a foreign word. It
is derived from the word Sindhu. Sindhu is the name of a river in Indian sub-continent. The
word Sindhu was mis-spelled as Hindu by the Persians. The sub-continent came to be
known as Hindustan and its people as Hindus. Thus etymologically, the word Hindu does
not signify a religion; it refers to a territory or nation.
Hindu law is a personal law. So, Hindu law should define who is a Hindu, and upon whom
the Hindu law applies.

A portion of Hindu law has been codified by Parliament in four Acts-
i) The Hindu Marriage Act, 1955
ii) The Hindu Minority and Guardianship Act, 1955
iii) The Hindu Adoption and Maintenance Act, 1955
iv) The Succession Act, 1956
According to these Acts, a Hindu is a person who-
Is a Hindu by religion in any of its form or development
Is a Buddhist, Jain or Sikh by religion

1
(1959) 61 BOM LR 1016
P a g e | 9

Any person who domiciled in India, who is not a Muslim, Christian, Persi or Jew by
religion
Hindus domiciled in the territories to which the Act extends
Followers of Hindu law
Followers of Hindu Law-
i) Legitimate child of Hindu parents
ii) Illegitimate child of Hindu parents
iii) Children of one Hindu parent
iv) Converted- The law was that the conversion was not accepted. But later it was accepted
but the converted person was given the lowest caste. All Hindu laws will be applicable upon
him except the succession.
Requirement of conversion- (i) Unequivocal conduct, (ii) Bona fide intention, (iii) No
ceremony is required and (iv) His motive is not important (Raman Nadar v. Snehapoo).

Persons not subject to Hindu Law-
i) Non-Hindu child of one Hindu parent
ii) Converts from Hindu religion
Abraham v. Abraham- Those who convert to Islam and other castes are not subject to Hindu
Law.

Doctrine of factum valet-
It is a doctrine of Hindu law, which was originally enunciated by the author of the
Dayabhaga, and also recognized by the followers of the Mitakshara, that a fact cannot be
altered by a hundred texts. The text referred to are directory texts, as opposed to mandatory
texts. The maxim, therefore, means that if a fact is accomplished, i.e., if an act is done and
P a g e | 10

finally completed, although it may contravene a hundred directory texts, the fact will
nevertheless stand, and the act done will be deemed to be legal and binding.
This doctrine came from Roman maxim factum valet quod fieri non debuit which literally
means that what ought not to be done become valid when done.

Sources of Hindu Law
Founder of Mitakshara School Vijaneshwar said, sources are the means of knowing law.
Hindu law is based on tradition and analytical in nature. Law is part of Dharma. So the
sources of Dharma are the sources of Hindu law. But in a secular point of view- it is a man-
made institution of control.
Sources may be arranged in the following order-
i) Legislation
ii) Dharma Shastras
The Vedas
The Smritis
The Puranas
iii) Sadachar (Custom)
iv) Commentaries and Digests
v) Precedents
vi) Principles of justice, equity and good conscience.
These laws are applicable as long as they are consistent to the Constitution.
Krishna Sing v. Mathura Ahir- The ban which was upon the Sudras is abrogated, because it
is inconsistent with the Fundamental Rights of the Constitution.

P a g e | 11

i) Legislation-
Main legislations are-
The Caste Disabilities Removal Act, 1850
The Hindu Widow Remarriage Act, 1856
The Majority Act, 1875
Transfer of Property Act, 1882 (overrides the Hindu Law of Property).
The Disposition of Property Act, 1960
The Succession Act, 1956
The Child Marriage Restraint Act, 1929
The Special Marriage Act, 1954

ii) Dharmashastra-
The term Shastra came from shas which means to teach. Dharmashastra means teacher
of dharma. It has two meanings-
a) Comprehensive- it includes Vedas, Smritis and Puranas
b) Limited- It includes only Smritis.

Dharma is divided into six-
i) Barna Dharma It is Dharma of the castes. It provides the laws applicable to different
castes.
ii) Ashrama Dharma It means four stages of life: (a) Brahmacharya (b) Grihastha (c)
Banaprashta (d) Sanyas.
iii) Barnashrama Dharma It is the combination of the first two Dharmas.
P a g e | 12

iv) Guna Dharma It means inherent nature of a thing.
v) Nimitto Dharma It is the secondary Dharma in absence of primary Dharma.
vi) Sadharana Dharma which is proper Dharma for a person in ordinary situation.

Vedas- Synonym to Vedas is Shruti. Shru means to hear. Hindus believe that the Vedas
are heard from God and written. There are four Vedas- (a) Rig Veda (b) Yajur Veda (c)
Sham Veda (d) Atharva Veda.
Each Veda has three parts-
i) Sanhita
ii) Brahmin It describes what the duties are
iii) Upanishad It describes the consequence to perform a duty.

Smriti- Derived from Smri which means to remember. People remembered from the
words of the sages, it is not from the God directly.
Smriti is divided into 2 parts-
i) Dharma sutra- it is mainly prose
ii) Dharma Shastra- it is mainly poetry (sloka).
Exact number of Smritis is unknown. Some authentic Smritis are-
Manu, Vaisistha, Brihaspati, Yagnavalkya, Vyas, Kotilya, Parashar, Katyana.

There are 3 rules in every Smriti-
i) Achar Morality
P a g e | 13

ii) Vyavahar Rules that the king or judge used to apply in settling disputes in the
administration of justice.
iii) Prayaschit Penal provisions for commission of a wrong. There are both substantive and
procedural laws. I t has 2 elements- (a) An inner intention to reform oneself, (b) A readiness
for punishment for committing an offence.

I f there is conflict between 2 Smritis, there is difference in opinion. According to Brihaspati,
Manu is above all Smritis. According to some, one has to choose among to conflicting
Smritis. According to others, the more logical one will be accepted.

Purana- It is a book containing five matters-
i) Creation
ii) End of creation
iii) Dynasty
iv) Manavantar
v) History of ancient dynasties
There are 18 Puranas, 18 Upa-puranas and 18 Upapa Puranas.
If there is conflict between Purana and Smriti, Smriti shall prevail.

iii) Sadachar (Custom)-
Custom is one of the most important sources of Hindu Law. Where there is a conflict
between a custom and the text of the Smritis, such custom will override the text.
Collector of Madura v. Mootoo Ramalinga (Ramnads case) Clear proof of usage will
outweigh the written text of law.
P a g e | 14

Customs are divided into-
(a) Local customs- are confined to a particular locality like a district, town or village.
(b) Class customs are the customs of a caste or a sect of the community or the followers of
a particular profession or occupation.
(c) Family customs are confined to a particular family only, and do not apply to those who
are not members of such family.

Essentials of valid custom-
i) Ancientness A custom must be minimum 100 years old.
ii) Certainty - Universality in observance is absolutely necessary.
iii) Reasonableness It should be in accordance with rules of justice, equity and good
conscience.
iv) Continuity It must be continuous without interruption.
v) Public policy It must not be against public policy.
vi) Uniformity It must be uniformly performed.
If a custom meets the abovementioned requirements, it becomes binding.

iv) Commentary and Digests-
Commentary is the interpretation of the Smritis by the scholars. It also includes the customs
and usages which the commentators found prevailing around them. Despite the fact such
commentators have modified the original texts in order to bring them in line with the local
customs and conditions, the commentaries are now considered to be more authoritative than
the original texts themselves.
Collector of Madura v. Moottoo Ramalinga- Clear proof of usage will outweigh the written
text of the law.
P a g e | 15

These commentaries gave rise to different schools known as the Mitakshara and Dayabhaga.
Collection of commentaries is called Digests.
Features of commentary and digest-
i) They have tried to make the subject simple and easy to understand.
ii) We find quotations of several works (texts)
iii) Topics of Dharma have been widely classified by the digest
iv) They have included custom and usages prevailing during their time
v) Commentary and digests kept law abreast of life.
A lot of commentaries have been made on Manusmriti. These are called Manu Tika.
Commentaries were started to be written down from 4-5 century and digests were from 12
century.
Authority of commentary and digest-
Atmaram v. Bajirao If Commentary and digest conflict with Smriti or Purana, Commentary
and digest shall prevail.
v) Precedent
vi) Principles of J ustice, Equity and Good conscience








P a g e | 16

Chapter-3
Differences between two schools of hindu law
As per the Hindu customs there are two schools under which the widows were getting the
property rights. In the Mitakshara School, the widows were not getting the right as a
coparcener but getting the right of maintenance and residence if she had a son then he will get
or inherit the property as one of the coparceners. But the scenario is opposite in the
Dayabhaga School where women gets the right as coparcener.
STATUS OF HINDU WIDOW UNDER THE MITAKSHARA LAW

In the Mitakshara law, this concept deals with the coparcener concept where the property
rights are give only to the male descendents and those male who gets the property fall under
the definition of coparcenaries although the definition of coparcenaries is narrower institution
within the a joint family comprising only of the male members. Under the classical law, no
female could be a member of coparcenaries and hence no right of ownership in the property.
2

Another reason why the coparcener are limited to male and not to female was that the female
member leaves the father house and assumes domestic and spiritual duties in their husband
house and becomes Sapinda. But there also we can observe that, the female did not get the
absolute rights in the property. The women as coparceners under Mitakshara, cannot be a
coparceners
3
(includes widow).
Although under the Mitakshara law, the widow gets a Right of maintenance out of her
husbands property, yet she is not a coparcener with him.
4
a widow of a deceased coparcener
is not a coparcener and therefore cannot be treated as a Karta of a family, also the alienation
made by her was not binding on the family members but bind her own share in the property.
5

She may not be a Karta but able to assess for the purpose of income tax
6
as the head of the
joint family. It is a trite law that a female is not a coparcener in the mitakshara Hindu joint
family but they are members of a joint family. As they have not acquired interest by birth and
were not entitled to claim partition but some females were entitled to a share when partition
took place by metes and bounds.

A HINDU WIDOW UNDER THE DAYABHAGA SCHOOL

In contrary to the Mitakshara, the Dayabhaga School have male as well as female as
coparceners. There is no discrimination between the male and the female. But over here one
exception is, if there are only female members left than they will be called as female heirs
and cannot be said as coparcenaries.
7
they might have absolute property rights, but then, they

2
Dr. Basant K. Sharma, Hindu Law, Central Law Publications, chapter I, Sources and schools of hindu law,II
Ancient Sources (d) Custom essential of valid customs, Page No. 7.
3
Comm. Of Income Tax v. Govinda Ram Sugar Mills, AIR 1966 SC 240; Pushpa Devi v. Comm. Of Income
Tax, AIR 1977 SC 2230.
4
Sabitri v. FA Savi, AIR 1933 Pat 306.
5
Kanji v. Permanand, AIR 1992 MP 208.
6
Sushila Devi v. Income Tax Officer, AIR 1959 Cal 697.
7
Mordern Hindu Law, Dr. Paras Diwan, Allahabad Law Agency, Harayana,Chapter XII, The Dayabhaga Joint
Family, Coparcenary, Page No. 313.
P a g e | 17

will only considered as coparceners when there is at least one male member because to
constitute a coparcener under the Dayabhaga, male member is also required because if all
women will remarry then there would be no existence of any family as they all will form a
new family.

As we are talking about the pre-1937 era in Dayabhaga in context of the female, being a
coparcener. After the death of a deceased coparcener the female will represent the share of
the deceased. In Dayabhaga, coparceners on the death of coparcener, the share of such
coparceners in absence of application of the doctrine of survivorship will go by the
inheritance; the widow will inherit the property.
8
After the death of the husband, the wife i.e.,
the widow will inherit the fixed share in the property though the possession of that property
will be united in absence of a partition. In the absence of the partition they will form as
coparcener with the other coparcenaries.
Coparcener under the Dayabhaga law was a creation not of a law but of a desire to live
jointly, it originated in fact and not by legal fiction.
9
Thus, the coparcenaries come into
existence by an act of violation on the part of heirs, such as an agreement to live, mess and
worship jointly. In the case of I.T. Comm. v. Sandhya Rani
10
, a Hindu governed by the
Dayabhaga School of law, died intestate leaving behind his widow and two daughters. By
agreement, they claimed to be assessed as Hindu undivided family. But it was held by the
Supreme Court that the female alone, in the absence of a male member, cannot form a Hindu
undivided family by agreement. Subsequently any female coparcener can sell, mortgage or
dispose of by gift or make will of her share, as they are the masters of their own wealth.

HINDU WOMENS RIGHT TO PROPERTY ACT, 1937

The law on property of a Hindu female at the time of Vedic society was very commendable
where the female enjoys equal rights in the husbands house. But after that time, the position
of female was degraded the female rights to inherit from the patrimony was also disputed and
in the joint family she only gets the maintenance and residence.
Whatever Rights given to them were of custodianship, according to the Smritikaras she will
only get limited ownership of the property and can enjoy it during the lifetime and when died
then revert it back to them from where it was came. But in the British era, due to the social
reforms the Hindu Womens Right to Property Act, 1937 was passed so as to amend the law
of all schools materially to confer greater rights on women.
11

The Primary aim to confer the inheritance rights to the widow was to secure her maintenance
rights through an act.
12
Her maintenance rights were only recognised under the old Hindu law
because she was excluded from the inheritance rights and from the share in the coparcener
property. The act although does not apply to the agricultural land and hence a widow who
cannot receive such share out of that property can still retained her maintenance right out of
this property.



8
Dr. Basant K. Sharma, Hindu Law, Central Law Publications, chapter I, Sources and schools of Hindu law, V
Dayabhaga Joint Family, Page No. 14.
9
C.W.T v. Bishwanath, 1976 HLR 397 (SC) 400.
10
1972 Tax LR 979 (SC).
11
Mordern Hindu Law, Dr. Paras Diwan, Allahabad Law Agency, Harayana, chapter XVII. Womans Property,
the Hindu Womens Right to Property Act, Page No. 382.
12
Dr. Basant K. Sharma, Hindu Law, Central Law Publications, chapter XI, Stridhan or Womans Property, I
Hindu Womans Right to Property Act, 1937-Its effect, Page No. 288.
P a g e | 18

In modification of the previous decisions the Act of 1937 confers new rights to the widow.
They basically recognised three widows:
1. Intestates widow,
2. sons widow and
3. The widow of a predeceased son of a predeceased son.

If a Hindu male governed by any school of a Hindu law or by customary law dies intestate
leaving behind separate property, then his property will be given to the widow or widows
together as to the same share as a son.
13

When a Hindu governed by any school of Hindu law other than Dayabhaga School or by
customary law dies, his widow shall have the same interest in the property as the husband
himself had.
Also any interest devolving on a Hindu widow under the provisions of this section shall have
limited interest which is known as a Hindu womens estate, provided she shall have the same
right of claiming partition as a male owner.

Before the said act the widows were not entitled to inherit any property but were only entitled
for the maintenance.
14

Now, after the commencement of this act the Hindu male governed by the Mitakshara law
died then his separate property and in Daybhaga his all the property, the widow will inherit
along with the male issue. In the intestates separate property, the act provides to the widow
for the equal share as that of her son and in default of son she will inherit the whole property.
But she cannot alienate the property by will, gift or even a sale as she is having limited
interest or ownership (not absolute like that of husband) in the property and only for the
lifetime or if she remarries the property will revert back to the heirs of husband.

In the joint family property, she was given the same interest as the male member had. She
had the right of claiming the partition as a male owner (by the virtue of new right, she is
entitled to, as that of the same position like her husband in which manner he would have
exercise his right) and this meant the abrogation of the right of the survivorship.
The act confers on the widow a right to be a member of Hindu joint family, as she was put in
the place of her husband and the husband interest in the coparcener property (though
indefinite) would be conferred upon to his widow after his death. Although giving interest of
husband does not mean that she becomes a coparcener although she continues to be a
member of the joint Hindu family as she was before the act.
Before the case of P. Lakshmi Perumallu v. P. Krishnavenamma
15
there were many conflicts
regarding the claiming of partition by a widow but this case has settled down all the conflicts
among the various High Courts in India.
This act of 1937 had also taken care of the rights of widow in respect of the Karta. The Karta
has a right to deal with the joint family property including the interest of the widow. He was
empowered to alienate the joint family property including the interest of the widow.
16


13
Shastri Gopalchandra (2008), a Treatise on Hindu Law, Eighth Edition, New Delhi (India): Ashoka Law
House
14
Naresh Jha v. Rakesh, AIR 2004 Jhar 2.

15
AIR 1965 SC 825.
16
Seethamma v. Veerana, AIR 1963 AP 199.
P a g e | 19

If the widow died as after getting her share partitioned, on her death the succession would be
traced to the husband heirs, on the reason that the property belongs to the separate property of
the husband, if she died in joint status then property would pass through survivorship.
As per the classical Hindu law, an unchaste widow is disqualified from inheriting the
property of her deceased husband. But this act was totally silent on this matter since it is a
very conflicting issue among the various high courts and hence, as the act was not mentioning
anything related to it the old rule relating to the disqualification of the unchaste widow from
the husband property is applicable
17
even after the act of 1937.

Differences between the two
schools in Coparcenary:-

Mitakshara



Dayabhaga
i) Right of a son by birth in the ancestral
property equal to the interest of his father.
i) A son is entitled to his ancestral property
only on the death of his father. The father is
the absolute owner of his property in his
lifetime.
ii) A son becomes coparcener right after his
birth. His right is applicable to the property
of his grandfather and grand-grandfather.
ii) A son becomes coparcener by death of
his father. This right is not available within
the property of his father, grandfather or
grand-grandfather.
iii) Everyone is entitled to the property as a
unit. Their shares are not defined. They
have only the commodity of ownership.
There is joint-tenancy.
iii) Everyones share is defined. There is
tenancy-in-common.
iv) One cannot transfer his share to the
third party.
iv) One can transfer his share.
v) The joint-property can be partitioned. In
that case, it will be partitioned as it was in
case of the father.
v) As the shares are defined, one can easily
partition with his share.









17
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

P a g e | 20

Chapter-4
Case laws
Benoy Krishna Tewary and Anr. Vs. State of West Bengal and Ors.
Family - Partition - Whether the suit properties were Mitakshara coparcenary
properties as found by the trial Judge or were separate properties as held by the
appellate Court? - Appeal filed under Section 100 of the Civil P.C - Held, properties
were ancestral or Paitamahik, law was settled for about two thousand years that in
those properties - With reference to Division Bench of the Oudh Chief Court in
Pirthipal v. Rameshwar, a Karta may still be held to have represented as the Karta,
even though he had not been described as such in the relevant document or transaction
- Appeal allowed.
The trial court having decreed the suit for partition on the finding that the suit-properties are
Mitakshara coparcener properties and the appellate court having dismissed the suit on
reversal of the finding, the only question involved in this second appeal is whether the suit
properties are Mitakshara coparcenaries properties as found by the trial Judge or are separate
properties as held by the appellate Court. There does not appear to be any misapprehension of
the relevant laws either by the trial court or by the appellate court. But we are satisfied that
there has been such serious misreading of the relevant portions of the plaint and the evidence
by the appellate court as to have amounted to 'no-reading' at all warranting our intervention in
second appeal under Section 100 of the Civil P.C., as it stood before the Amendment of 1976,
governing this appeal.
Parties, though residing for generations in the Dayabhagi State of Bengal (now West Bengal),
are still governed by the Mitakshara School of Hindu Law having migrated from a
Mitakshara State. As is well-known, as the domicile of origin attaches to a person wherever
he goes until he accepts a new domicile of choice, the original school of law also continues to
govern a migrating Hindu family, wherever it goes, until it adopts another school of law
operating at the place of its new settlement. Both the courts below have proceeded on the
basis, and in our view rightly, that the parties having migrated from Uttar Pradesh to West
Bengal are still governed by the Mitakshara School of Hindu Law, they not having adopted at
any stage the Dayabhaga School of Hindu Law prevailing in West Bengal.
It is the categorical case of the plaintiffs in para 4 of the plaint that the suit properties are
"Coparcenary ancestral properties" that they have acquired interest therein by "right by birth"
(Janmadhikar Bale), by right of survivorship (Uttarjibi Sutre) and that the properties were
"Paitamahik Sampathi". It should be noted that the Sanskrit word for ancestral is Paitamaha,
meaning belonging to Pitamaha. This word Pitamaha, though ordinarily applied to the father's
father, means in the plural number, all the paternal male ancestors of the father in the male
line, how high so ever (Sarkar-Sastri's Hindu Law -- 8th Edition -- page 257).
These averments in the plaint have not been controverted by any of the principal defendants
who all are members of the joint family. In view of these clear assertions, it is difficult to
understand as to how the appellate court could find it to be the "plaintiff's positive case that
the suit plots have been acquired by the plaintiff 1 with the aid from the ancestral properties
that had come to his hand" and could transpose to and impose on the plaintiffs the onus to
P a g e | 21

prove such acquisition. In the evidence also, the plaintiff 1, as PW-3, clearly stated that his
'grandfather and his forefathers acquired the suit properties" and that his "father had no
capacity to acquire the suit properties". The appellate court has dismissed the suit on the
ground that the plaintiff could not discharge the onus to prove "the plaintiff's positive ease"
that the suit-properties are coparcenary as having been acquired by the plaintiffs with the aid
of the joint family fund. That being not the case of the plaintiffs either in the plaint or in the
evidence, and the positive and consistent case of the plaintiff being that the properties were
acquired by their grandfather and his ancestors and that they have acquired interest therein by
birth and by survivorship, the misreading by the appellate court of the pleading and the
evidence palpably amounted to no consideration thereof and having thus vitiated the root of
the matter and the entire process of reasoning of the appellate court, clearly warrants
intervention under Section 100 of the Civil P.C., as it stood before the Amendment of 1976,
by which this appeal is governed.
Once it is held, as was rightly held by the trial court, that the properties were ancestral or
Paitamahik, the law is settled for about two thousand years that in those properties, the father
and the sons acquire equal shares by birth -- "Tatra Syat Sadrisham Samwam Pituh Putrasya
Chobhayo".
The appellate Court laid great stress on the fact that the suit properties are recorded in the R.
S. Record only in the name of the plaintiff's father and not in the name of the coparceners and
that, according to appellate court, militated against the coparcenary character of the
properties. But it is undisputed that the plaintiffs father, being the senior most male member
of the family, was the Karta of the undivided family and recording of the properties in the
name of the Karta alone, is in no way inconsistent with the coparcenary character of the
properties, even it the Karta is not expressly described as the Karta in the relevant records.
We, therefore, allow the appeal, set aside the judgment and decree of the first appellate court
and restore those of the trial court. No costs.
Vasant Atmaram & Anr. V. Dattobe Rajaram
Civil Procedure Code (Act V of 1908), Section 11 - Suit for partition of joint family property
filed in British India by adopted son against coparceners not recognising his adoption--Court
upholding adoption and decreeing suit--Another suit filed by adopted son against
coparcencers in Court in former Kolhapur State for share of family property in Kolhapur--
Kolhapur State merged with Indian Union pending suit--Coparceners raising issue in suit that
adoption not valid under law enacted by State of Kolhapur--Whether decree passed by Court
in British India operates as res judicata and bars trial of issue--Hindu law - Adoption--
Whether an adoption can be partially valid and partially invalid-- Lex loci--Whether in
matters of personal relations and status there is lex loci in India.
The plaintiff was adopted by the widow of a deceased copareneer(sic) in a joint Hindu
family. The plaintiff's coparceners refused to recognise his adoption and the plaintiff in 1942
filed a suit against them in the Belgaum Court claiming his share in the joint family property
situate in Belgaum which was then in British Indian territory. The Court upheld the plaintiff's
adoption and decreed the suit in March 1944. In the meanwhile the plaintiff had filed another
suit against the coparceners in June 1947 in the Kolhapur Court for his share in the joint
family property situated in the then Kolhapur State. In this suit the coparceners sought to
raise the issue that the plaintiff was not the validly adopted son of the deceased coparcener
under the enactment in force in the State of Kolhapur. Pending that suit the State of Kolhapur
P a g e | 22

merged with the Indian Union on March 1, 1949. On the question whether the decree passed
by the Belgaum Court operated as res judicata and barred the trial of the issue.
Rutcheputty Dutt Iha, Bho Launauth Iha and Ors. (Sons Heirs and Legal
representatives of Gunga Dutt Iha Deceased) Vs. Rajunder Narin Rae and
Coower Mohainder Narain Rae (Sons and Representatives of Sree Narain Rae
Deceased)
In this case their Lordships concur in recommending her Majesty to affirm the decision of the
Court below, We would not have troubled the learned counsel for the Respondents, but that
we were anxious the case should be fully investigated as it relates to property of a very large
amount. On a full consideration, we feel no difficulty in assenting to the propriety of the
decree of the Sudder Court on all points. The Appellant claims the Zemindary of Pergunna
Haveelee Poorneah, situate in the province of Bengal. He claims to be entitled as the cousin
on the mothers side, and claims against the defendant below, the father of the Respondents,
who is related in the sixth degree on the fathers side. It is admitted that if the law on which
the learned Judge Mr. Harrington proceeded, governs the succession, no valid objection can
be taken to the decree of the Court below. That matter has been fully investigated; and
although there was some doubt about it, the counsel for the Appellants do not feel strong
enough to impeach the decree if it was rightly decided according to the law. Now was it so
decided. Let us look in the first instance, to the point on which the parties put their case till
they came to the Sudder Court. The Plaintiff does not state by what law his descent is to be
regulated, but he claims as the heir-at-law of the deceased Rajah. The answer of the
Defendants, whose representatives are the present Respondents, distinctly puts it on the
ground that the Shasters of Tirhoot regulate the succession. They state that the case ought to
be decided "according to the Shasters of Tirhoot which are in usage in the country, and
particularly among the Brahmins of Mitheela who are ruled entirely thereby." Now when the
Plaintiff comes to his (sic) it is equally clear that he puts his claim also on the Shatters of
Tirhoot or the law of Mitheela, and there is not a word said about any other law to regulate
the succession between the parties.
2. Then we find, that in pursuing his appeal to the Sudder Dawanny Adawlut, it is said that
one small portion ought to be adjudged according to the law of Bengal. Now, is that right.
Mr. Harrington who considered the question, is of opinion that the rule of succession ought to
be the Mitheela law, according to which the parties have governed themselves, and he lays it
down as a clear proposition of law, that in a case where a family migrates from one territory
to another, if they preserve their ancient religious ceremonies, they also preserve the law of
succession, and relies on the case of Rajunder Narain Chowdry v. Goculchund Goh,
proceeding on the opinions of the Pundits, and which was in evidence in the Sudder Dewanny
Adawlut. It is very true that the precise point decided by the Court in that case does not go to
the full length of Mr. Harrington's judgment, for the family there had abandoned part of the
religious observances and adopted those of Bengal; and there it is said that the law of that
country must decide; there is a want of clearness, probably in consequence of the defect of
translation; but the effect is, that if they had preserved their ancient religion, the law of
succession would be according to the country from whence they migrated : that opinion is
clearly adopted by the Court, and there is a note well deserving of attention which is not only
the note of the Reporter, but as we learn, from the preface to the book, especially valuable as
coming from the pen of Mr. H. Colebrooke. Now the note upon this subject says, " If the
family had been shown to have continued in the observance of the natural law and usages,
namely, those of Mitheela, the rule of inheritance as established in that province must have
P a g e | 23

been followed." They treat that as a matter of clear law and not admitting of any doubt. The
present case, therefore, must be considered, rather as an exception to that which is laid down
as the law in that case, because there they had abandoned those usages and taken to those of
Bengal, It appears highly reasonable in such circumstances that that should be the rule, for
the law of succession of the Hindoos partakes greatly of their religious opinions, and is part
of their system. It appears to their Lordships, that the opinion expressed by Mr. Harrington is
the law to govern this case; and in respect to the application of that law to the state of this
family, there appears no objection, Upon the whole view of the case, the law to decide,
therefore, must be the Mitheela law; and according to that their Lordships cannot say that the
case has been wrongly decided. It appears there was some little doubt as to the provision of
the Mitheela law; the note to which I have referred, states that "the books of greatest authority
in Mitheela on the subject of inheritance, are silent in regard to the sister's son; and the
established opinion is, that the male descendant of the remote ancestor shall inherit, and not a
descendant through females of a near ancestor." But that does not appear to have been
perfectly decided; and therefore, probably this suit was brought to have that point cleared up,
upon which the opinions of so many Pundits have been taken. It appears that the Mitheela
law is against the claim of any relation on the mother's side till those on the father's side to
the seventh degree have been exhausted. This being an appeal against the decision of the
three Courts, it must of course be dismissed with costs.













P a g e | 24

Chapter-5
Conclusion
From the Ancient to the Modern legislation on the Hindu widows we came to the conclusion
that the initiative taken by the Britishers in the form of Women Rights on Property in 1937
was a very commendable decision, prior to that the society was very negative and brutal with
the widows and the practice of sati pratha on them was altogether a brutal move but due to
the social reformers initiatives there were new hopes for the widows for their rights.
Firstly, not only the widows but daughters were also not getting the rights over the property
of the family as they were having Rights of maintenance and residence. But for getting those
rights also they were fighting. After that the 1937 Act, at least gave widows limited rights on
the property during their life time. From the Succession Act of 1956, the widow under the
category of class one heirs were preferred if a male member dies intestate. This provision
came after repealing the 1937 Act.
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."
18

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 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

18
Mulla's Hindu Law,Fifteenth Edition, Article 258.
P a g e | 25

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.
19


Doctrine of Survivorship
This doctrine has been explained earlier. The Dayabhaga School allows for devolving of
properties only at the point of succession. Thus, there is no question of inheriting any
property. It is due to the application of this concept that there exists no coparcenary between
a grandfather and his grandson under the Dayabhaga School.
The application of this rule is also related because classical Hindu Law recognised the
concepts of unobstructed heritage and obstructed heritage to property. By unobstructed
heritage one means that between the lineal descendants the coparcenary never ends. Thus, if
one of the chain members dies then the coparcenary shifts to the next lineal descendant. This
phenomenon has been accepted under Mitakshara School. On the other hand, the Dayabhaga
School recognizes only obstructed heritage.
There are two further differences between the two schools of law that the researcher wants to
delve upon but they would be explained in the next part of the essay owing to the fact that
they involve the role players such as the Karta.





19
G. Suryakantara v. G. Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012. In that case, it has
been held that the law is not that a gift of an undivided share is void in the sense that it is a nullity, but only in
the sense that it is not binding on the other coparceners.
P a g e | 26

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.
Subzwaris (2008), Hindu Law (Ancient & Codified), Second Edition, Ashoka Grover
& Sons.
Guptes, 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

Websites:

www.indiannow.org.com (visited on October 3, 2013)
www.shodhganga.inflibnet.ac.in (visited on October 3, 2013)
www.preservearticles.com ( visited on October 3, 2013)

www.britanica.com (visited on October 3, 2013)