Schools of hindu law

Schools of hindu law

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  By: Rashmi dubey FACULTY OFLAW
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   Schools ofHindu Law came into being when different commentaries appeared to interpret “Smritis” with reference to different local customs in vogue in different part of India.  In Rutchepatty v/s. Rajendra(1839) , 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 not 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.
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  o In Collectorof Madhura v/s. Mooto Ramalinga, the Privy Council has held that “The ancient sources of Hindu Law i.e., Smritis are common to all different schools. The process by which those schools have been developed seems to have been of this kind. It works universally or very generally received becomes the subject of subsequent commentaries. The commentators puts his own gloss on ancient texts; and his authority having been received in one and rejected in another part of India, thus the school with conflicting doctrines arose.”
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   The Schoolsof Hindu Law has emerged from the commentaries and digests. There are two main schools namely:- 1) Mitakshara School and 2) Dayabhaga School  Mitakshara and Dayabhaga are the two important schools of Hindu Law which has given us the required information about the present legislated laws.  It remarked Smritis and didn’t agree on all the concept of smritis.  Vignaneshwara Commentary on Yagnavalkya Smriti is called Mitakshara, which means ‘measured in words’.
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   Dayabhaga Schoolgot its name from a leading smritis named Dayabhaga written by Jimutavahana.  Mitakshara is written on later part of 11th century – comprehensive commentary dealing with all titles of Hindu Law.  Mitakshara prevails in all over India except the state of Bengal and Assam.  Mitakshara School has been categorized in five school:- i) The Benaras School – applicable in whole of North India including Orissa and Madhya Pradesh. ii) The Mithila School- applicable in Tirhoot and North Bihar
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  iii) The Bombayor Maharashtra School - prevails in whole of Bombay and Maharashtra. iv) The Punjab School- prevails in North-East Punjab. v) Difference between Mitakshara and Dayabhaga School:- MITAKSHARA :- 1) As regards Joint Property:  Right to property arises by birth(of the claimant); hence the son is a co- owner with the father in ancestral property. After the commencement of the Hindu Succession (Amendment) Act,2005,the daughter of a coparcener is also a coparcener.
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   The interestof a member of the joint family would, on his death, passed to the other members by survivorship. Section 6(3) of the Hindu Succession Act, as substituted by the Hindu Succession (Amendment) Act,2005 abolishes the principles of survivorship. 2) As regards Alienation:  Members of the joint family cannot dispose of their shares while undivided. 3) As regards Inheritence:  The Principle of Inheritence is Consanguinity (blood relationship)
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  3) As regardsInheritance:  But in Mitakshara School of Law cognates are postponed to agnates. 4) As regards Doctrine of Factum Valet:(Meaning:- fact cannot be altered by Hundred texts).  It is less inclined towards the Doctrine. DAYABHAGA:- 1) As regards Joint Property:  Right to property by death (of the last owner); hence son has no right to ancestral property during father’s lifetime.
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   The interestof every person would, on his death, pass by inheritance to his heirs, like widow or daughters.  On death of the holder of the property, the property will fall on his legal heirs according to the rule of inheritence or succession. 2) As regards Alienation:-  Any members of joint family may sell or give away his share even when undivided. 3) As regards Inheritence:-  The Principle of Inheritence is spiritual efficacy(i.e., spiritual efficacy)  Some nearer cognates like sister’s son are preferred to many agnates.
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  4) As regardsDoctrine of Factum Valet:-  It is completely inclined towards Doctrine. vi) Note:-  (i) Under the new Hindu Law, the difference between the two schools are no longer tenable.  (ii) Under the Hindu Succession Act,1956 we have one uniform law of succession for all Hindus, whatever school they may belong. vii) Migration and The School of Law:-  On migration the family continues to be governed by the law of locality of origin and the burden is heavy on the party alleging otherwise.
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   The presumptionis that if a family migrates from one state to another, it carries with it the customs regulating succession and family relations prevailing in the state from where it comes. However, this presumption may be rebutted by proving that the family has now already adopted the law and usages of the state to which it has migrated.  It is a settled law that there is a presumption that parties residing in a particular area are governed by lex loci unless migration is proved. The burden of proving that the family came from other tract and is, therefore, governed by some other branch of Hindu Law, is on the party which asserts it (Mst.Anjubai v. Ramchandra Rao, AIR 1960). The ordinary presumption, therefore, is that a Hindu is governed by the law of its land
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  where he resides.This presumption is, however, not based on the theory of lex loci, but on the ground of its being a personal law(Basani v. Dattoba).  Their Lordship of the Privy Council observed : “Where a Hindu Family migrates from one part of India to another, prima facie they carry with them their personal law, and if they are alleged to become subject to a new local custom, this new custom must be affirmatively proved to have been adopted but when such a family emigrates to another country and being themselves Mohammedans, settle among Mohammedans, the presumption that they have accepted the law of the people whom they have joined seems to their Lordships to be one that should be much more readily made. The analogy is that of a domicile on settling in a new country rather than the analogy of a change of custom on migration within India.”(Abdurahim v. Halimabai)
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   Of course,if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In such a case domicile plays an important role.