Mitakshara School

Mitakshara School

Before the codification of Hindu Law in the 1950s, Hindu Personal Law, particularly concerning property and succession, was not uniform across India. It was primarily divided into two major schools of thought, the Mitakshara School and the Dayabhaga School. These schools arose from different interpretations of the ancient Smritis, particularly Yajnavalkya Smriti, as explained in prominent commentaries and digests.

Key Features (e.g., Coparcenary, Ancestral Property)

The Mitakshara School is based on the commentary 'Mitakshara' on the Yajnavalkya Smriti written by Vijnaneshwara in the 11th century. It is the dominant school of Hindu Law, historically prevalent throughout India except in Bengal and Assam. Its key features revolve around the concept of the joint family, coparcenary, and rights in ancestral property:

1. Concept of Joint Family and Coparcenary: The Mitakshara school is strongly associated with the concept of a Hindu Joint Family, which typically consists of a common ancestor and all his male descendants up to four generations, their wives, and unmarried daughters. Within this joint family, a smaller body called the Coparcenary exists.

A coparcenary traditionally consists only of male members within the joint family who acquire a right by birth in the ancestral property. It includes the karta (head of the family) and his male descendants up to four generations below him. Until the 2005 amendment to the Hindu Succession Act, daughters were not coparceners by birth.

2. Right by Birth in Ancestral Property: A core principle of Mitakshara law was that a son acquired an interest in the ancestral property of his father and grandfather by birth. This right was irrespective of the father's wishes. Upon his birth, the son became a coparcener and had an equal, though undivided, interest with his father and other male coparceners in the coparcenary property.

3. Survivorship (Jus Accrescendi): If a coparcener died intestate (without a will), his undivided share in the coparcenary property did not pass to his heirs by succession but devolved by survivorship to the remaining coparceners. This principle meant that the share of a deceased coparcener simply merged into the common pool of coparcenary property, increasing the shares of the surviving coparceners.

4. Fluctuating Interest: The share of each coparcener in the coparcenary property was not fixed but fluctuated with births and deaths in the coparcenary. For example, if a new son was born, the share of every existing coparcener decreased.

5. Partition: A coparcener had the right to demand partition of the coparcenary property at any time. Partition involved dividing the common property into defined shares, after which the property ceased to be coparcenary property and became the individual property of the divided members.

6. Karta's Powers: The Karta (usually the senior-most male member) managed the affairs of the joint family and its property. He had extensive powers to manage, alienate property for legal necessity or benefit of the estate, but was accountable to the coparceners.

Impact of Codification: The Hindu Succession Act, 1956 significantly altered the Mitakshara concept of coparcenary, especially regarding succession. The 2005 amendment was revolutionary, making daughters coparceners by birth with the same rights and liabilities as sons in ancestral property. This changed the composition of the coparcenary and introduced simultaneous inheritance by survivorship (for coparcenary interest) and testamentary/intestate succession (for separate property and the individual defined share in coparcenary property after the amendment).

Sub-Schools (Banaras, Mithila, Maharashtra, Gujarat-Rajasthan, Dravida)

Although the Mitakshara school was widely followed, it had several sub-schools or branches that differed on certain points of law, primarily concerning succession, adoption, and the rights of women. These sub-schools were based on different regional commentaries and interpretations of the Mitakshara text itself. The five main sub-schools were:

1. Banaras School: Prevalent in North India (Uttar Pradesh, Bihar, Madhya Pradesh). It followed works like Viramitrodaya and Nirnayasindhu.

2. Mithila School: Followed in certain parts of Bihar and Nepal. Its authority was Vivada Ratnakara and Vivada Chintamani.

3. Maharashtra (Bombay) School: Followed in Western India (Maharashtra, Gujarat, parts of Madhya Pradesh and Karnataka). It was influenced by texts like Vyavahara Mayukha.

4. Gujarat-Rajasthan School: Followed in Gujarat, Rajasthan, and the Kathiawar peninsula. Similar to the Maharashtra school but with some regional variations.

5. Dravida (Madras) School: Followed in South India (Tamil Nadu, Kerala, parts of Karnataka and Andhra Pradesh). Its authorities included Parashara Madhaviya and Saraswati Vilasa.

These sub-schools primarily differed in their interpretation of who qualified as heirs in certain situations or the preference given to certain relatives. The codification in 1956, particularly the Hindu Succession Act, aimed to unify the law of succession for Hindus, largely superseding the detailed rules of inheritance of these various sub-schools, though some regional variations might still exist based on savings for custom or interpretation of specific provisions.

Dayabhaga School

Dayabhaga School

The Dayabhaga School is based on the digest 'Dayabhaga' written by Jimutavahana in the 12th century. Historically, its application was limited primarily to Bengal and Assam. The Dayabhaga school differs fundamentally from the Mitakshara school on the key concepts of coparcenary, right by birth, and devolution of property.

Key Features (e.g., Sapinda Relationship, Sons' Right by Birth)

1. No Right by Birth in Father's Lifetime: The most significant distinction is that under Dayabhaga law, a son does not acquire a right by birth in his father's property (ancestral or self-acquired) during the father's lifetime. The father is the absolute owner of his property and can deal with it as he wishes (sell, gift, mortgage), subject to certain moral obligations to maintain his family. The sons' right to the father's property arises only upon the father's death.

2. Devolution by Succession, Not Survivorship: When a person dies intestate, their property (both ancestral and self-acquired) devolves by succession (inheritance) to their heirs, not by survivorship among coparceners. The heirs succeed to the property in defined shares.

3. Concept of Coparcenary (Post-Death): A coparcenary under Dayabhaga law arises only after the death of the father. It consists of those male heirs who succeed to his property. However, unlike Mitakshara, their shares are fixed upon inheritance and do not fluctuate with births and deaths. Each coparcener has a defined, ascertained share which they can alienate, and which will pass to their own heirs upon their death (by succession, not survivorship amongst the Dayabhaga coparceners). The concept of coparcenary in Dayabhaga is thus more akin to joint ownership or tenancy-in-common than the Mitakshara notion of joint ownership by birth with rights of survivorship.

4. Sapinda Relationship: Both schools consider the concept of 'Sapinda' (related through common particles of the body) for purposes like marriage and inheritance. However, their interpretation of what constitutes Sapinda relationship and how it affects succession differs. Dayabhaga places more emphasis on the spiritual benefit conferred by funeral oblations (Pindadan) in determining inheritance rights, favouring those who can offer Pindas to the deceased.

5. Wife's Rights: Dayabhaga law traditionally gave the widow a greater right to inherit her husband's share upon his death compared to the Mitakshara school (where her rights to coparcenary property upon the husband's death were limited before statutory changes). If a husband in a Dayabhaga family died intestate, his widow could inherit his share in the property he held, whether it was his sole property or property he held jointly with others inherited from his ancestors.

Impact of Codification: The Hindu Succession Act, 1956, largely unified the law of succession across India. While it codified and modified parts of both schools, its provisions on inheritance (which favour succession over survivorship in many cases, and grant rights to female heirs) brought the Mitakshara system closer to the Dayabhaga principles in certain aspects, particularly by converting the interest of a deceased male coparcener in coparcenary property into a defined share for succession purposes. The 2005 amendment, by making daughters coparceners, further complicated the interplay between the old school rules and statutory law, but the fundamental Dayabhaga principle of no right by birth in the father's lifetime remains relevant for properties not covered by the expanded concept of coparcenary.

Geographical Prevalence (Bengal and Assam)

The Dayabhaga School of Hindu Law was historically prevalent and primarily applied only in the regions of Bengal and Assam. The rest of India, before codification, largely followed various sub-schools of the Mitakshara Law. This geographical division was maintained during the British period, with courts applying Dayabhaga law to Hindus residing in Bengal and Assam and Mitakshara law (as interpreted by the regional sub-schools) elsewhere.

Despite the enactment of the Hindu Succession Act, 1956, which applies uniformly across India, the distinction between Mitakshara and Dayabhaga schools remains relevant for certain specific issues, particularly regarding the nature of joint family property and partition if they are not directly and fully covered by the codified law, although the scope of these differences has significantly narrowed since 1956, and even more so after the 2005 amendment to the Hindu Succession Act.

Coparcenary and Ancestral Property

Coparcenary and Ancestral Property

The fundamental divergence between the Mitakshara and Dayabhaga schools lies in their conception of joint family property and the constitution of a coparcenary. This difference significantly impacts inheritance and property rights within the family.

Mitakshara View

Under the Mitakshara school:

• A coparcenary consists of male members (and daughters since the 2005 amendment) of a Hindu joint family descended from a common ancestor up to four degrees, who hold joint property.
• The key feature is the concept of right by birth (jus in re proprium). A son (and now a daughter) acquires an interest in the ancestral property of the joint family by birth itself. This interest is equal to that of their father and other coparceners.
• Ancestral property is property inherited by a Hindu from his father, father's father, or father's father's father. Property inherited from other relations or self-acquired property usually isn't ancestral property in the strict sense unless it's thrown into the common stock with the intention of abandoning separate claims.
• Coparcenary property is held jointly. Each coparcener has an undivided and fluctuating interest in the entire property. The specific share is not defined until a partition takes place. The share fluctuates because it is subject to variation by births and deaths within the coparcenary.

Dayabhaga View

Under the Dayabhaga school:

• There is no concept of a coparcenary in the Mitakshara sense during the lifetime of the father.
• A son does not acquire any right by birth in either the ancestral or self-acquired property of his father. The father is the sole and absolute owner of his property during his lifetime.
• A coparcenary under Dayabhaga law arises only after the death of the father, among those male heirs who succeed to his property. This is more akin to a tenancy-in-common among co-heirs.
• Each Dayabhaga coparcener has a definite, ascertained share in the inherited property from the moment of inheritance. This share does not fluctuate with births or deaths of other coparceners.
• There is less emphasis on the distinction between ancestral and self-acquired property in terms of the son's rights during the father's lifetime, as the son has no right in either type of property by birth.

Sapinda Relationship

Sapinda Relationship

The concept of Sapinda relationship is crucial in Hindu Law for determining prohibited degrees of marriage and for matters of inheritance and succession. Both Mitakshara and Dayabhaga schools recognise the concept of Sapinda, but they differ significantly in its definition and application.

Mitakshara Definition of Sapinda

The Mitakshara school defines Sapinda relationship based on connection through common particles of the body (physical propinquity or blood relationship). The definition includes persons related through:

• The father through six degrees in ascent.
• The mother through four degrees in ascent.
• Themselves (as descendants) through six degrees in descent from a common ancestor (male or female).

Marriage within the Sapinda relationship, according to this definition, is generally prohibited unless permitted by custom. In matters of inheritance, Mitakshara law traditionally gave preference to Sapindas over other relations based on this blood relationship.

Dayabhaga Definition of Sapinda

The Dayabhaga school defines Sapinda relationship based on the capacity to offer funeral oblations (Pindas) to a common ancestor or to accept Pindas from a common ancestor. This is a religious or spiritual criterion rather than a purely physical one.

The Dayabhaga definition typically extends to:

• Three degrees in ascent and descent from the common ancestor who receives or offers the Pinda.

Marriage within the degrees specified by the Dayabhaga definition of Sapinda is prohibited unless allowed by custom. In succession, Dayabhaga law gives preference to heirs who can confer spiritual benefit on the deceased by offering Pindas, which is primarily based on the male line.

Impact of Codification: The Hindu Marriage Act, 1955 (Section 1(f) read with Section 3(f)) provides a uniform definition of "Sapinda relationship" for the purpose of marriage, overriding the varying definitions of the schools and customs regarding prohibited degrees of marriage. It defines Sapinda relationship based on the degree of ascent through the mother (up to 3 degrees) and father (up to 5 degrees) and descent from a common ancestor within those degrees, encompassing both maternal and paternal lines. The Hindu Succession Act, 1956 determines heirs based on categories and rules of preference defined in the Act itself, largely moving away from the Sapinda concept for inheritance, though the concept of 'relation' is still key.

Powers of Alienation

Powers of Alienation

The power of a family member to alienate (sell, gift, mortgage) property differs significantly between the two schools, stemming from their core differences regarding ownership and rights in property.

Mitakshara School

Under the Mitakshara school, the power of a coparcener to alienate their interest in the coparcenary property during their lifetime was limited:

• Karta's Power: The Karta (manager) of the joint family had the power to alienate coparcenary property (sell, mortgage, etc.) only for specific purposes recognised by law:
  • Legal Necessity (Apatkale): For unavoidable family needs (e.g., medical expenses, marriage expenses of daughters, maintenance).
  • Benefit of the Estate (Kutumbarthe): For improving the property or the family's welfare, provided it is clearly beneficial to the entire family's estate.
  • Indispensable Duties (Dharmarthe): For performance of indispensable religious or charitable acts.
  Any alienation by the Karta without these justifications was voidable at the instance of other coparceners.
• Individual Coparcener's Power: A coparcener traditionally could not alienate their undivided interest in the coparcenary property by gift or will, as the property would devolve by survivorship. However, they could alienate their interest for value (sale or mortgage) in certain circumstances, particularly in the Bombay and Madras sub-schools, though this was not universally accepted in all Mitakshara regions.

Impact of Codification: The Hindu Succession Act, 1956, especially after the 2005 amendment, significantly altered the powers of alienation. Section 30 allows a Hindu (including a coparcener) to dispose of their interest in a Mitakshara coparcenary property by will or other testamentary disposition, effectively abolishing the principle of survivorship in favour of testamentary succession for that interest. This grants individual coparceners greater power over their share, though the concept of Karta's power for necessity/benefit of estate over the entire property remains relevant in certain contexts.

Dayabhaga School

Under the Dayabhaga school, the powers of alienation are much more extensive, flowing from the principle that there is no right by birth and property devolves by succession:

• Father's Power: The father is the absolute owner of all his property (ancestral or self-acquired) during his lifetime. He has the absolute power to alienate it by sale, gift, or will as he pleases, without needing the consent of his sons and without any specific restrictions like legal necessity, except for certain moral obligations.
• Coparcener's Power (Post-Death): Once property devolves by succession upon the father's death, the heirs become coparceners (in the Dayabhaga sense, like co-owners). Since each coparcener has a defined and ascertained share, they have the full power to alienate their share (by sale, gift, will) during their lifetime, just like any other owner of separate property.

The Dayabhaga system offers greater freedom of alienation compared to the traditional Mitakshara system because ownership and definite shares are established earlier (in the case of the father) or immediately upon inheritance (in the case of the heirs).

Succession

Succession

The rules of succession are where the differences between the two schools are most pronounced and historically significant, although these have been largely unified by the Hindu Succession Act, 1956.

Mitakshara Succession

Traditional Mitakshara succession was based on the principle of propinquity (nearness of blood relationship) and the concept of survivorship within the coparcenary.

• Survivorship: A coparcener's undivided interest in the coparcenary property passed by survivorship to the remaining coparceners upon his death, not by inheritance to his personal heirs (like his widow or daughters). This was the dominant mode of devolution for coparcenary property.
• Succession: Succession applied only to the separate property of a Hindu male or the separate property of a female Hindu. The order of heirs was determined based on nearness of relationship (propinquity), with preference given to Agnates (relations through males) over Cognates (relations through females).

This system often disadvantaged widows and daughters, as they could not inherit the husband's/father's interest in the coparcenary property by survivorship, although later legislation like the Hindu Women's Right to Property Act, 1937, introduced some changes before comprehensive codification.

Dayabhaga Succession

Traditional Dayabhaga succession was based on the principle of spiritual benefit conferred by offering funeral oblations (Pindas). It applied to all property of the deceased, as there was no concept of right by birth in ancestral property.

• Succession: All property of a deceased male devolved by succession to his heirs. There was no concept of survivorship.
• Spiritual Benefit: The order of male heirs was determined primarily by their capacity to confer spiritual benefit on the deceased through Pindadan. Those who could offer Pindas to the deceased himself (sons, grandsons, great-grandsons) or through whom the deceased could offer Pindas to common ancestors were preferred. Agnates were generally preferred over Cognates, but the basis was spiritual efficacy, not just blood relationship.
• Widow's Rights: The widow of a deceased male inherited his share in the property (whether self-acquired or inherited from his father) as an heir.

This system was considered relatively more favourable to the widow compared to the traditional Mitakshara system, as she inherited her husband's property directly, rather than it passing by survivorship to the coparceners.

Impact of Codification: The Hindu Succession Act, 1956, significantly reformed the law of succession for both schools. It abolished the rule of survivorship for the interest of a deceased male Hindu in a Mitakshara coparcenary property where he leaves behind certain female relatives (Class I heirs like daughter, widow, mother) or male relatives claiming through such female relatives. In such cases, his interest devolves by testamentary or intestate succession according to the rules laid down in the Act, not by survivorship (Section 6). The Act also provides a uniform list of heirs (Class I, Class II, Agnates, Cognates) and rules of succession for all Hindus, largely replacing the complex and differing rules of both schools and providing equal inheritance rights to daughters and widows along with sons.

While the Hindu Succession Act codified the rules of inheritance, the underlying concepts of Mitakshara and Dayabhaga regarding the nature of joint family property and the creation of interests (right by birth vs. right by succession) remain relevant for understanding the scheme of the Act and for issues like partition that are not fully codified.