Schools of Hindu Law

In one minute

Hindu law has two schools. The Mitakshara school governs most of India except Bengal. The Dayabhaga is the other school. Each rests on a different work.

The schools differ most on family property. Exams ask where each applies, why they arose and what the Mitakshara sub-schools are.

Legal provision

No Act lists the schools. The Hindu Acts only refer to them in a few places.

• Section 6(1), Hindu Succession Act, 1956: the daughter's birthright applies "in a Joint Hindu family governed by the Mitakshara law". A Dayabhaga family is outside that rule.
• Section 4, Hindu Succession Act, 1956: a text or interpretation of Hindu law on a matter covered by the Act stops having effect. School rules survive only on matters the Act does not cover.
• Section 3(a), Hindu Marriage Act, 1955: local custom that meets the test has the force of law, so a sub-school's local rule can survive as custom.

Meaning and definition

A school of Hindu law is a system of rules built on one authoritative commentary and followed in a particular region. The schools agree on the basic religion. They disagree on how a family holds and passes on property.

• Hindu law
  • Mitakshara schoolMost of India except Bengal. Sub-schools: Benares, Mithila, Maharashtra (Bombay), Dravida (Madras).
  • Dayabhaga schoolThe second school (Vineeta Sharma, para 18).

Detailed explanation

Why the schools arose

The Smritis were the common base, but they sometimes disagreed. Scholars in different regions wrote commentaries and digests to settle the conflicts. Two of these works became so respected that courts and communities followed them as the law of their region. That is how the schools formed.

The Mitakshara school

The Mitakshara is a commentary by Vijnaneshwara on the Yajnavalkya Smriti. It applies to most parts of India except Bengal (Vineeta Sharma, para 20). Its best-known idea is that a son gets an interest in ancestral property by birth. It has four sub-schools (para 18).

• Benares school: practically the whole of Northern India (para 19).
• Mithila school: an old name of a territory (para 18).
• Maharashtra (Bombay) school: Western India and various other territories (para 19).
• Dravida (Madras) school: an old name of a territory (para 18).

Regions and reorganisation of States

• The Supreme Court in Vineeta Sharma v. Rakesh Sharma records two main schools, the Mitakshara and the Dayabhaga. The Mitakshara has four sub-schools: Benares, Mithila, Maharashtra or Bombay, and Dravida or Madras. These are old names of territories (para 18).
• The schools of the Mitakshara apply region-wise. The Benares school practically governs the whole of Northern India. The Bombay school covers Western India and various other territories (para 19).
• After the States Reorganisation Act, 1956, some States have areas where different schools apply. Madhya Pradesh has areas under the Bombay school and areas under the Benares school (para 19).
• The Mitakshara applies to most parts of India except Bengal. Certain areas of Southern India are governed by the Marumakkattayam, Aliyasantana and Nambudri systems, which are outside both schools (para 20).

The Dayabhaga school

The Dayabhaga is the second school of Hindu law (Vineeta Sharma, para 18). The Mitakshara applies to most parts of India except Bengal (para 20). A separate note compares the two schools in detail.

In a Dayabhaga coparcenary every coparcener takes a defined share and owns it. The share does not rise or fall with births and deaths. There is unity of possession but no unity of ownership (Vineeta Sharma, para 35).

What the two schools share

In Surjit Lal Chhabda the Supreme Court said the schools differ on the birthright of coparceners and on the rules of inheritance. It added that a joint Hindu family under the Dayabhaga is, like a Mitakshara family, normally joint in food, worship and estate. In both, joint family property may include ancestral property, joint acquisitions and self-acquisitions thrown into the common stock. Whichever school governs a person, the basic idea of who can be a member of a Hindu undivided family is the same.

Sub-schools, authorities and regions (as stated in Mulla)

These points come from Mulla, Principles of Hindu Law (14th ed.), sections 11 to 13 and the Introduction. They describe the classical position.

• Only two schools in substance: the four Mitakshara sub-schools differ in details of adoption and inheritance. There is no disagreement on any basic principle. The differences come from different readings of some texts and from conflicting High Court decisions (Mulla, section 12(1) and Introduction).
• Order of inquiry: the sub-school works were meant to supplement the Mitakshara, not replace it. First ask what the Mitakshara says. Then turn to the other authorities (Introduction).
• Benares: Viramitrodaya is a special authority. Where the Mitakshara is clear, it is the guide of every sub-school. The Benares school covers practically all of Northern India except the Punjab, where custom has changed the Mitakshara in places (Introduction).
• Mithila: the Vivada Chintamani and the Vivada Ratnakara are favoured works. The school prevails in Tirhoot and parts of northern Bihar (Introduction).
• Maharashtra or Bombay: the Mitakshara ranks first in Maharashtra, Northern Kanara and Ratnagiri. In Gujarat, the Island of Bombay and the North Konkan the Vyavahara Mayukha overrules the Mitakshara where they differ. In some other districts the Mayukha is of equal authority but cannot overrule it (section 12(2)). Courts try to read the two works so that they agree.
• Dravida or Madras: the Smriti Chandrika is next in authority to the Mitakshara. The Saraswati Vilasa follows it. None of the Madras works can outweigh the Mitakshara (Introduction). Where no usage shows the Smriti Chandrika is living law, courts do not depart from the Mitakshara.
• Bengal or Dayabhaga: the Dayabhaga prevails in the Bengali-speaking areas of Bengal and Assam. The Dayatatva of Raghunandana is the most reliable exposition (Introduction).
• Orthodox and reformed: the Mitakshara is called the orthodox school and the Dayabhaga the reformed school. They differ mainly on inheritance and the joint family system (section 11(5), (6)).
• Basis of inheritance: the Mitakshara prefers nearness of blood. The Dayabhaga looks to the spiritual benefit a person can give to the ancestors (Introduction).
• Adoption works: where the Dattaka Mimansa and the Dattaka Chandrika differ, the Mimansa is preferred in Mithila and Benares and the Chandrika in Bengal (section 13).

Exceptions and special rules

• Uniform Act for both schools: the Hindu Succession Act, 1956 applies to persons governed by the Mitakshara and the Dayabhaga alike, and to those earlier governed by Marumakkattayam, Aliyasantana and Nambudri laws. It does not touch the special rights of members of a Mitakshara coparcenary, except to provide rules for the devolution of a deceased male's interest (Vineeta Sharma, para 47).
• The Acts prevail: on marriage, succession, adoption and guardianship the Hindu Acts apply to all schools alike. School differences now matter mainly for joint family property.
• Section 6, Hindu Succession Act: the coparcenary rule for daughters speaks of the Mitakshara law only.

Don't confuse: the four Mitakshara sub-schools

Sub-school	Region	Also called
Benares	Practically the whole of Northern India (para 19)	-
Mithila	An old name of a territory (para 18)	-
Maharashtra (Bombay)	Western India and various other territories (para 19)	Bombay
Dravida (Madras)	An old name of a territory (para 18)	Madras

Common mistakes

• Calling the four sub-schools separate schools. They are branches of the Mitakshara.
• Applying the Mitakshara to Bengal. Para 20 excepts Bengal.
• Saying the schools still govern marriage and succession. The Acts replaced them there.
• Forgetting that the Mitakshara is Vijnaneshwara's commentary on the Yajnavalkya Smriti.

Apply it

Problem

Arun's family is a Joint Hindu family governed by the Mitakshara law. His sister Radha claims to be a coparcener under section 6 of the Hindu Succession Act. Arun's brother says section 6 applies only to Dayabhaga families. Is the brother right?

Issue

Does section 6(1) apply to a family governed by the Mitakshara law?

Rule

Section 6(1) applies to a "Joint Hindu family governed by the Mitakshara law".

Application

Arun's family is governed by the Mitakshara law. It falls within the words of section 6(1).

Conclusion

The brother is wrong. Section 6 applies to a Mitakshara family.

Leading case laws

• Vineeta Sharma v. Rakesh Sharma

  Facts. The question was whether a daughter is a coparcener if her father died before 9 September 2005.

  Principle. The Court set out the two schools, the four Mitakshara sub-schools and their regions (paras 18-20), and held that section 6 makes the daughter a coparcener by birth.

  Why it matters. It is the Supreme Court's recent statement of the schools and their regions.

• Surjit Lal Chhabda v. Commissioner of Income Tax

  Facts. A man governed by the Mitakshara claimed that he, his wife and his unmarried daughter formed a Hindu undivided family.

  Principle. The schools differ on the coparcener's birthright and on inheritance, but the basic idea of who can be a member of a Hindu undivided family is the same.

  Why it matters. It shows what the two schools have in common.

How to write this answer in the exam

Key points to remember

• Two schools: Mitakshara (Vijnaneshwara) and Dayabhaga.
• Mitakshara applies to most parts of India except Bengal (Vineeta Sharma, para 20).
• Mitakshara sub-schools: Benares, Mithila, Maharashtra (Bombay), Dravida (Madras).
• In a Dayabhaga coparcenary each coparcener takes a defined share (Vineeta Sharma, para 35).
• Section 6, Hindu Succession Act, speaks of the Mitakshara law only.
• The Mitakshara applies to most of India except Bengal; some areas of Southern India follow Marumakkattayam, Aliyasantana and Nambudri systems (Vineeta Sharma, para 20).
• The Hindu Succession Act applies to both schools alike.

Quick self-test

Related topics

• Mitakshara and Dayabhaga Schools
• Sources of Hindu Law
• Concept of Joint Family, Coparcenary, Joint Family Property and Coparcenary Property