Schools of Hindu law: Mitakshara and Dayabhaga - Family Law I - Hindu Law

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1. How the schools arose
2. Sub-schools of the Mitakshara
3. The fundamental differences
4. The differences today
5. The differences in a table
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

A table answer. “Distinguish between the Mitakshara and Dayabhaga schools” is among the most frequent questions in this paper. The examiner wants the origin of each school, the sub-schools, and then the differences point by point. Learn the differences as pairs and write them as a table or a numbered list; then add a paragraph on how far the Hindu Succession Act has made them obsolete.

1. How the schools arose

The schools are not sects. They grew out of the commentaries and digests, each of which interpreted the smritis in the light of the customs of its region. The two main schools take their names from two works:

Mitakshara, Vijnaneshwara's commentary on the Yajnavalkya Smriti, written in the eleventh century. It is followed in the whole of India except Bengal and Assam.
Dayabhaga, Jimutavahana's digest of the leading smritis, written in the twelfth century. It is followed in Bengal and Assam.

The Mitakshara is the older and more orthodox; the Dayabhaga is a reformist work that departs from it on inheritance and the joint family. Where the Dayabhaga is silent, the Mitakshara applies in Bengal too.

2. Sub-schools of the Mitakshara

All the sub-schools accept the Mitakshara as the main authority. They differ on points of detail, mainly adoption and inheritance, because each also relies on regional works.

Benares school: northern India (except Punjab and Mithila). Authorities: the Viramitrodaya and the Nirnaya Sindhu.
Mithila school: Tirhut and northern Bihar. Authorities: the Vivada Chintamani and the Vivada Ratnakara.
Maharashtra or Bombay school: Bombay, Gujarat and the Marathi-speaking areas, including much of Karnataka. Authorities: the Vyavahara Mayukha and the Nirnaya Sindhu.
Dravida or Madras school: southern India. Authorities: the Smriti Chandrika, Parashara Madhaviya and Saraswati Vilasa.

The Punjab is sometimes treated as a fifth, customary sub-school, since custom there displaced much of the textual law. The matrilineal systems of Kerala and the west coast (Marumakkattayam, Aliyasantana) were outside both schools; the Kerala Joint Hindu Family System (Abolition) Act, 1975 ended the joint family in that State.

3. The fundamental differences

(a) Basis of the right: birth or death. Under the Mitakshara a son acquires an interest in ancestral property by birth (janmasvatvavada). Under the Dayabhaga no one has any interest in the father's property during his lifetime; the right arises only on the death of the owner (uparamasvatvavada). So in Bengal the father is the absolute owner even of ancestral property and can dispose of it as he likes.

(b) Formation of the coparcenary. Under the Mitakshara father and sons form a coparcenary from the moment of the son's birth. Under the Dayabhaga a coparcenary arises only after the father's death, among his sons (or other heirs) who take his property jointly.

(c) Survivorship or succession. Under the Mitakshara, on the death of a coparcener his undivided interest passed to the surviving coparceners by survivorship; only separate property went by succession. Under the Dayabhaga the share of a deceased coparcener passes by succession to his heirs, including his widow and daughter.

(d) Nature of the share. A Mitakshara coparcener has no definite share; his interest fluctuates, increasing with deaths and decreasing with births in the family, and is fixed only on partition. A Dayabhaga coparcener holds a definite, specified share even while the family is joint.

(e) Alienation. A Mitakshara coparcener cannot alienate his undivided interest by gift; most sub-schools did not allow even a sale without the consent of the others, though the Bombay and Madras courts allowed alienation for value. A Dayabhaga coparcener can sell, mortgage or gift his definite share, because it is his.

(f) Partition. Under the Mitakshara partition means severance of status: an unequivocal declaration of intention to separate is enough, and division by metes and bounds may follow later. Under the Dayabhaga, since shares are already defined, partition means only the physical division of property into separate portions.

(g) Basis of succession. The Mitakshara rule of inheritance rested on consanguinity (propinquity, nearness of blood). The Dayabhaga rested on religious efficacy (spiritual benefit): the heir was the person who could offer the pinda to the deceased, so cognates on the mother's side were sometimes preferred.

(h) Position of women. The Dayabhaga was more favourable. A widow could succeed to her husband's share in joint property if he died without male issue, and could demand a partition. Under the Mitakshara, before the Hindu Women's Rights to Property Act, 1937, a widow of a coparcener took nothing in joint property and had only a right of maintenance; the property went to the surviving coparceners.

4. The differences today

The Hindu Succession Act, 1956 laid down a uniform scheme of intestate succession (sections 8 to 16) for both schools. Section 4 overrides the texts on matters it deals with.
Section 6 originally kept survivorship for the Mitakshara coparcenary, subject to the proviso that where a female heir in Class I survived, the deceased's interest went by succession. After the 2005 amendment, a daughter is a coparcener by birth and, for deaths after 9 September 2005, the interest of a coparcener passes by testamentary or intestate succession, not survivorship (section 6(3)). The gap between the schools has narrowed greatly.
Section 30 lets a Mitakshara coparcener dispose of his undivided interest by will, which the old law did not allow.
What survives is the Mitakshara rule of acquisition by birth in coparcenary property and the institution of the joint family with a karta. The Dayabhaga father still holds ancestral property absolutely.

Trap. Do not write that the 2005 amendment abolished the Mitakshara coparcenary. It did the opposite: it kept the coparcenary and admitted daughters to it. What it abolished, for deaths after the amendment, was devolution by survivorship.

5. The differences in a table

Right arises: Mitakshara by birth / Dayabhaga on death of owner.
Father's power over ancestral property: restricted / absolute.
Coparcenary of father and sons: yes / no, only after father's death.
Devolution of undivided interest: survivorship (now succession after 2005) / succession.
Share: fluctuating, undefined / fixed, defined.
Alienation of interest: restricted / free.
Partition: severance of status / physical division.
Basis of inheritance: consanguinity / spiritual benefit.
Widow of coparcener: maintenance only (old law) / takes husband's share.

How this is examined

As a 10-mark essay: “Explain the schools of Hindu law and distinguish between Mitakshara and Dayabhaga.” Begin with the origin of the two works, list the four sub-schools with one authority each, then the differences under headings, and close with the effect of the Hindu Succession Act and the 2005 amendment. As a short note: “Sub-schools of Mitakshara” or “Dayabhaga school”. The differences between the schools also come up within answers on coparcenary and partition, so the pairs above are worth learning once.