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.

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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
husband‟s 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.

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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.

Inheritance under Mitakshara School:-

There are two systems of inheritance amongst the Hindus in India, namely, the Mitakshara
system and the Dayabhag system. The Mitakshara system prevails in whole of India except in
Bengal and its adjoining parts.

Both the systems are based upon the text of Manu which reads: ‘to the nearest Sapinda the
inheritance next belongs, after them, the Sakulyas, the preceptor of the Vedas, or a pupil.” The
difference between the two systems arises from the fact that, while the doctrine of religious
efficacy is the governing principle of inheritance under the Dayabhag School, the rule of
consanguinity has been regarded as the guiding principle under the Mitakshara system.

The basic difference between the two schools arose on their different modes of interpretation of
the term ‘sapinda’. To Mitakshara it meant the nearest in blood, the rule of consanguinity or
proximity of blood relationship became the basis of determining the line of succession. The
characteristic feature of Mitakshara law of succession is the principle of propinquity with this
most important qualification that no cognate excepting a daughter’s son can succeed in
preference to an agnate.

This system does not mention the rule of religious or spiritual efficacy as the basis of succession,
although the Virmitrodaya formulates and makes use of it in finding a position for the great
grandson among the direct mail descendants of the deceased on whom the property devolves
before the widow and the rest can claim succession.

Agnates are Preferred to Cognates:-

The Dayabhag system interprets the above text of Manu differently. According to the author of
Dayabhag one who is competent to offer oblation to the males is sapinda and thus the doctrine of
religious or spiritual benefit has emanated to determine the order of succession.

Thus, according to Mitakashara the preferential right to inherit is determined by family

relationship or community of corporeal particles, while in the Dayabhag it is determined by the
capacity of a person to perform funeral rites. It may happen that in some instances the same

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person would be preferential heir, whichever test is applied, but in others the two tests do not
point to the same person.

But in Mitakshara, while holding that the right to inherit does not spring from the right to offer
oblation does not exclude it from consideration as a test of propinquity or nearness of blood
when a question of preference arises in doubtful cases.

It also did not lay down any rules to govern the inheritance of the separate property of male who
died an undivided member of joint family without leaving male issue of his own. The Privy
Council observed that in Katitma Nachiar v. Raja of Shivaganga, that the rule of inheritance
stated in the Mitakshara, should, on principle, be extended to the separate property of a man
when he died an undivided member of a joint family but without leaving male issue.

Accordingly, in the Mitakshara areas the law of succession followed the nature of .property;
where the property was coparcenary property it followed the rules laid down by the law of
partition and where the property was separate property it followed the rules laid down by the law
of inheritance strictly so called. Thus, in the case of a male Hindu governed by the Mitakshara
there was no unity of succession; and there could be two courses of devolution of his property.

Modes of Devolution of Property:-

The Mitakshara system recognises two modes of devolution of property, namely

(a) Devolution by survivorship,

(b) Devolution by succession,

The rule of survivorship applies with respect to joint family property or coparcenary property
whereas the rules of succession apply with respect to property held in absolute severality by the
last owner. The Dayabhag recognises only one mode of devolution namely, succession. It does
not recognise the rule of survivorship nor a distinction between joint family property and
separate property.

The reasons, according Mulla, is that while every member of a Mitakshara joint family has only
an undivided interest in the joint property, a member of a Dayabhag joint family holds his share
in quasi-severality, so that it passes on his death to his heir’s as if he was absolute owner thereof,
and not to the surviving coparceners as under the Mitakshara law.

Males Take Absolutely, Females Only Limited Estate:-

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Males succeeding as heirs from males take absolutely whereas females succeed as heirs either
from males or from a female take a limited estate in the property inherited by them, except in
certain case in the state of Bombay.

Spes Successionis:-

The right of a person to inherit as heir on the death of a Hindu is a mere spes successionis, i.e., a
bare chance inheritance. It is not a vested right. He therefore cannot make a valid transfer of it. It
is on account of this fact that any agreement entered into by him in respect of inheritance cannot
bind persons who actually inherit when succession opens.

Doctrine of Representation:-

Under this principle, the son, grandson whose father is dead and a great grandson whose father
and grandfather both have died, stepped in the shoes of their ascendant so as to take his share in
the property. The reason is that a grandson represents the rights of his father to a share and great
grandson represents the right both of his father and grandfather. Except in the case of sons,
grandsons and great grandsons the right of representation does not apply and Manu’s rule of
proximity alone will apply.

Thus the son of predeceased brother of the deceased cannot represent the deceased one and
succeed along with the deceased’s living brother. Similarly the son of a predeceased daughter
cannot succeed along with the daughter of the deceased. The doctrine also does not extend
beyond three degrees reckoned from the deceased. It also does not extend to an illegitimate son
of a predeceased son to represent his father when inheritance opens. On partition among the
sons, grandsons and great grandsons they take per stirpes and not per capita.

Succession per Stirpes and per Capita:-

In per stirpes succession, the several heirs belonging to different branches get their share only
from that property which is available to the branch to which they belong. The following heirs
take the property per stirpes:

(1) Sons, grandsons and great grandsons of a deceased male Hindu.

(2) Son’s son, daughter’s sons and daughters daughter succeeding to stridhan.

In succession per capita property is divided equally among all the claimants from one branch.
Here the succession is according to the number of heirs, and the property is equally divided.

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Full Blood to be Preferred to Half Blood:-

A sapinda of full blood is preferred to a sapinda of the half blood. This preference, however, is
confined to sapinda of the same degree descended from the common ancestor. It does not apply
to sapinda of different degrees. This rule applies to relatives in the Mitakshara system. Thus a
paternal nephew of full blood is entitled to succeed in preference to paternal nephew of half
blood, they being sapindas of the same degree of descent.

In Shalikram Urkuda Chambare & others v. Pandurang Konda Chatukhodpe & others, the court
held that under Succession Act, full blood is preferred to half blood. The female heirs of full
blood would exclude mala heirs of half blood. This preference, how is confined to sapinda of the
same degree descended from the common ancestor.

DAYABHAGA SCHOOL:-
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 husband‟s share and enforce partition if there are no
male descendants.

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  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 Evolution of the Dayabhaga School:-

Both schools of medieval Hindu law – the Dayabhaga and the Mitakshara are based on the texts
of the learned sage Manu. They are merely different interpretations of the same treatise. But it
must be noted that the approach adopted by both schools is radically different.

The difference really stems from the interpretation of who is a sapinda. Both schools concur on
the principle that property should be inherited by the sapindas, but the definition of the word
itself given by the schools is different. According to the Mitakshara system it means ‘one that
has the same body’ which can be construed as a close relative who is a descendent of a common
ancestor. But such descendence should always be from the male line. Thus, in this system only
agnates have the right to inherit. There distance in relationship is not a factor determining
inheritance but their sex does play an important role. In this system, for example, property of the
deceased may devolve upon a distant male cousin but not to his own daughter’s son.

Such a system was not agreeable with Jimutvahana, the founder of the Bengal school – the
Dayabhaga sytem. According to him, sapinda is any relative who can offer ‘pindas’, the balls of
rice offered during the funeral of the deceased. This would include cognates, the women in the
family as well, allowing them to freely inherit property.

The Mitakshara system founded by Vijaneswara, following a rigid patriarchal system based such
a theory on the principle established by the school of the “Black Yajurveda" which quoted
“Nirindriya hyadayadah strio nritam" as the reason backing it. This can be translated as “women
are generally incompetent and do not have the power to inherit" Jimutvahana did not agree with
such reasoning and later Jaimini, the great scholar on Hindu jurisprudence too backed him
stating that certain Vedic texts explicitly provide for women owning and possessing wealth.

Vijaneswara in his later treaties propounds a theory of female ownership (but this is quite
different from that propounded by the Bengal school). He remarks that women do have a title
over property but only through their husband or their son, not otherwise. Women under
Mitakshara law have no direct right to ownership of property or inheritance.

Inheritance under Dayabhaga School:-

According to Dayabhaga school, the only females who can inherit the property of a male are the
widow, daughter, mother, father’s mother and father’s father’s mother. The Madras school, in
addition to the above mentioned five heirs, also recognises three more heirs known as bandhus

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which are brother’s daughter, brother’s son’s daughter and father’s brother’s
daughter. According to all schools, except Bombay, a female who has inherited property from a
female relation is not the wholesome owner of the property and is known as a limited owner of
the property. Except in case of fulfilling indispensable religious and charitable purposes
including for spiritual benefits to her husband, a woman doesn’t have a right to alienate such
property. The limitation is with respect to the power over its disposal and the inability to transmit
this estate to her own heirs, but otherwise she had full powers to possess it and appropriate the
income generated from it. During her lifetime, no person had any right of succession over that
property, though after her death the property passed on to the next heir of the male from whom
she inherited it. With regard to the property inherited from female relation relations also, the
concept of limited ownership was present.

In Bombay school, other than five females mentioned above, the other females who had the right
to inherit the property as heirs were daughters of descendants and ascendants and collaterals
within five degrees and widows of gotraja sapindas. Female heirs under this school are divided
into two following classes:

Those who come into the gotra of the deceased owner, by marriage i.e. wife of the deceased and
the wives of his sapindas and samanodakas.

Those who are born in the gotra of the deceased owner but pass by marriage into different gotra
and their daughters such as a daughter, daughter’s daughter, sister, niece, father’s sister and the
like.

Under the first class females have limited ownership of the property whereas under class (ii), the
female heirs become the absolute owners of the property. Such property is considered to be
stridhana and thus governed by Mitakshara law. In cases of property inherited from females, they
become the absolute owners of the property.

Dayabhaga follows the principle that sons can divide the ancestral wealth only after the death of
both the father and the mother. Here, the son is given a position of prominence and widow’s
seemingly absolute right to the property is circumscribed by the rights of the son. Though, in
case of more than one widow, it is said that partition is as per the widows, it is submitted that the
reference to equal number of sons signifies that the mother’s right to partition is limited by the
sons and that each widow is allowed to take an equal share temporarily.

As opposed to Dayabhaga, in Mitakshara, as mentioned above, son is vested with an interest in

the property since his birth. The wife loses her position of equality and her status as the joint
owner with the husband. Though Vijnanesvara says that a man should give an equal share to his
wife and sons are also supposed to give their mother an equal share after father’s death.

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Difference between Mitakshara school and Dayabhaga school:-
The essential differences between Mitakshara and Dayabhaga relate to the following—

1- Joint Family:-

According to the Mitakshara a son, grandson and great-grandson acquire by birth a right in the
ancestral property. This doctrine is the basis of the Mitakshara joint family. According to the
Dayabhaga the ownership of the son can arise only after the death of the father.

There, is no right by birth. The father has un-controlled power of alienation over the family
property under the Dayabhaga. Under the Mitakshara the father’s power are qualified by the
son’s equal right by birth.

2- Survivorship:-

Brothers who have inherited property from their father have a right of survivorship in the
Mitakshara joint family.

The Dayabhaga does not recognise any right of survivorship and the brothers hold in quasi-
severalty with full power of alienation.

3-Widow’s rights:-

When one of the brothers dies, his widow can succeed to his share under the Dayabhaga but
under the Mitakshara her rights are excluded by the right of survivorship of the brothers. The
widow can then have only a right to maintenance.

4- Sapinda: Heirship

The relationship of Sapinda arises according to Mitakshara by propinquity or community of

blood. Under the Dayabhaga it arises by means of Pinda offerings to deceased ancestors.
Spiritual benefit is the criterion for heirship under the Dayabhaga while consanguinity (blood
relationship) is the guiding principle under the Mitakshara.

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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."

According to the Mitakshara law as applied in all the States, no coparcener can dispose of his
undivided interest in coparcenary property 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

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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 Mitakshara School of 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.

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REFERENCE:-
1. www.shareyouressays.com
2. www.intolegalworld.com
3. www.shodhganga.inflibnet.ac.in
4. www.lawteacher.net
5. www.lawstudyhelp.blogspot.com

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