Schools of Hindu Law

Introduction.- Schools of Hindu Law came into being when different commentaries
appeared to interpret 'Smritis' with reference to different local customs in vogue in
different parts of India. In Rutcheputty v. Rajendra,1 it has been observed by the Privy
Council that the different local customs prevailed in different provinces of India. The
commentators of the Smritis could no ignore the local customs and usages and while
interpreting the texts, they eventually incorporated different local customs. The local
conditions and customs of the different provinces have, therefore, gone to mould the
principles of law prevailing in each provinces.

Process of development.- In Collector of Madura v. Mottoo Ramalingc,2 the Privy Council

has held that: "The remoter sources of Hindu Law (that is Smritis) are common to all the
different schools. The process by which those schools have been developed seems to have
been of this kind. Works universally or very generally received become the subject of
subsequent commentaries. The commentator puts his own gloss on the ancient text; and
his authority having been received in one and rejected in another part of India, thus the
schools with conflicting doctrines arose".

Schools of Hindu Law.-Properly speaking there are two schools of Hindu Law, namely,
Mitakshara School and the Dayabhaga School. The latter prevails in Bengal and the former
in other parts of India. Mitakshara is a running commentary on the Code of Yajnavalkya and
was written by Vijnaneshwara in the latter part of the eleventh century. The Dayabhaga is
not a commentary on any one Code, but purports to be a digest of all the Codes. It was
written by Jimutavahana. It was written about two centuries latter than the Mitakshara.
The Mitakshara is of supreme authority throughout India except in Bengal. The
Dayabhaga is of supreme authority in Bengal. But even in Bengal the Mitakshara is still
regarded as a very high authority on all questions in respect of which there is no conflict
between it and the Dayabhaga. The Dayabhaga has permitted the women to let in the
coparcenary whereas the Mitakshara has discarded this very notion. The former one
accepted the rule of religious efficacy whereas the latter propounded the doctrine of
consanguinity in the matter of succession. The Dayabhaga is more dynamic and is definitely
an improvement upon Mitakshara.
The persons who accepted the authority of Mitakshara came to be further divided.
Thus, Mitakshara school is sub-divided into four main schools, viz, "Banaras", "Mithila".
"Bombay" or "Maharashtra" and the "Dravida or Madras" schools. To these four, one more
school, namely, the "Punjab" school is added which recognises the authority of the
Mitakshara as well as of the Viramitrodaya.
The "Dayabhaga" is the leading authority of the Bengal School.

Mitakshara
The Mitakshara School is thus divided into five sub-schools. hey materially different
on the law of adoption and inheritance. All these schools acknowledge the supreme
authority of the Mitakshara, but give preference to certain treatises and to commentaries
which contain certain passages of the Mitakshara.

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The five sub-schools are namely:-
1. The Benaras School,
2. The Mithila School,
3. The Dravida or Madras School,
4. The Bombay or Maharashtra School, and
5. The Punjab School.
Mayne writes that the variances between the sub-division of the Mitakshara Schools are
comparatively few and slight. Except in respect of the Maharashtra School, this division
serves no useful purpose ; nor does it rest upon any true or scientific basis. It is to a certain
extent misleading as it conceals the fundamental identity of doctrines between the so-
called Mithila, Benaras, Maharashtra and Dravida Schools, etc. and suggests that there are
more differences than do really exist.3
Now these various sub-schools of Mitakshara will be discussed in detail :
(1) Benaras School.-Excepting in Mithila and the Punjab, this School prevails in the
whole of Northern India including Orissa. The "lex loci" in the Central Provinces
(Now Madhya Pradesh) is the Benaras School of Hindu Law.4
The following commentaries are also held in high esteem
1. Mitakshara,
2. Viramitrodaya,
3. Dattaka Mimansa,
4. Nirnaya Sindhu,
5. Vivada Tandava,
6. Subodhini, and
7. Balam-Bhatti.

(2) Mithila School.- This school prevails in Tirhoot and North Bihar. Of course, the
Mitakshara is the law of this school, except in a few matters. Thus it was
observed by the Privy Council that the law of the Mithila School is the law of the
Mitakshara except in a few matters in respect of which the law of Mithila School
has departed from the law of the Mitakshara.5
The following are the commentaries treated as authoritative
1. Mitakshara,
2. Vivada Ratnakar,
3. Vivada Chintamani,
4. Smriti Sara or Smrityarthasara,
5. Madana Parijata.
(3) Dravida or Madras School.- The whole of the Madras State is governed by the
Madras School of Hindu Law. This School was once sub-divided into a Tamil, a
Karnataka and an Andhra School for which, however, there was no justification. 6
The authorities accepted in this school are the following:
1. Mitakshara,
2. Smriti Chandrika,
3. Parasara Madhaviya,
4. Saraswati Vilasa,
5. Viramitrodaya,
6. Vyavahara Nirnaya,
7. Dattaka Chandrika,
8. Daya Vibhaga,
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 9. Vaijayanti,
10. Madhabi.
11. Nirnaya Sindhu,
12. Narada Rajya,
13. Vivada-Tandava.
(4) Bombay or Maharashtra School.- The Bombay or Maharashtra School of Hindu
Law prevails in almost the whole of the State of Bombay including Gujarat, Kanara
and the parts where the Marathi language is spoken as the local language.
The following works are treated as authoritative in this School:
1. Mitakshara,
2. Vyavahara Mayukha,
3. Viramitrodaya,
4. Nirnaya Sindhu,
5. Parasara-Madhaviya,
6. Vivada Tandava.

(5) Punjab School.-It prevails in the part of the country called the East Punjab.
This school is chiefly governed by customs.
The following are authorities in this School:
1. Mitakshara,
2. Viramitrodaya, and
3. Punjab Customs.
Reasons of differences between various schools of Mitakshara.- As we have seen
that the variances between the sub-division of the Mitakshara school are comparatively
fewer and of lesser significance. The following are reasons for these differences:
(1) One reason which used to be given for this division is that "the glosses and
commentaries upon the Mitakshara are received by some of the schools but are not
received by all".7
(2) Another reason given for this division into schools is that the commentaries in a
particular province which follow the Mitakshara put a particular gloss on it and
agree to it collectively.
Dayabhaga
This school prevails in West Bengal as well as in Assam with some variances based
on the authority of customs.
The following authorities are accepted in this school:
1. Dayabhaga,
2. Dayatatva,
3. Daya-Sangraha,
4. Viramitrodaya, and
5. Dattaka-Chandrika.
'Dayabhaga' was written by Jimutavahana. According to Dr. Jolly it is one of the most
striking compositions in the whole department of Indian jurisprudence.
According to Mayne, 'Dayabhaga' was written in the 13th century.8

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Difference between the Mitakshara and Dayabhaga Schools.- The fundamental points
of difference between the Mitakshara and Dayabhaga Schools of law may be summarized as
follows:
Mitakshara Dayabhaga
(1) As regards Joint Property: Right to Right to property by death (of the last
property arises by birth (of the claimant); owner); hence son has no right to ancestral
hence the son is a co owner with the father property during father's lifetime.
in ancestral property. After the
commencement of the Hindu Succession
(Amendment) Act, 2005, the daughter of a
coparcener is also a coparcener.
Father has a restricted power of alienation, Father has absolute power of alienation, and
and son can claim partition even against the son cannot claim partition or even
father. maintenance.
The interest of a member of the joint family The interest of every person would, on his
would, on his death, passed to the other death, pass by inheritance to his heirs, like
members by survivorship. Section 6 (3) of widow or daughters.
the Hindu Succession Act, as substituted by
the Hindu Succession (Amendment) Act,
2005 abolishes the principle of survivorship.
(2) As regards Alienation: Members of joint Any member of joint family may sell or give
family cannot dispose of their shares while away his share even when undivided.
undivided.
(3) As regards Inheritance: The principle of The principle of inheritance is spiritual
inheritance is consanguinity (i.e., blood- efficacy (i.e., offering of pindas).
relationship). Some cognates, like sister's sons are
But cognates are postponed to agnates. preferred to many agnates.
(4) As regards Doctrine of Factum Valet- a Doctrine of factum valet is fully recognized.
fact cannot be altered by hundred texts. It is
recognized to a very limited extent.

Besides the above points, the other basis of difference between Mitakshara and
Dayabhaga arose out of their differences in the meaning of the word "Sapinda". According
to Dayabhaga 'Sapinda' meaning of the same 'pinda' and pinda means a ball of rice which is
offered by a Hindu as obsequies to their deceased ancestors. The term 'Sapinda' thus
connotes those related by the duty of one to offer 'pinda' to the other. On the other hand,
Vijnaneswara defined 'Sapinda' relationship as the relationship arising between two
persons through their being connected by particles of one body.
This fundamental difference in the term "Sapinda" resulted in the formulation of the
rules of law, which were in material respects quite distinct from each other.

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