MITAKSHARA AND DAYABHAGA SCHOOL
The Mitakshara is a running commentary on the code of Yajnavalkya and was written by Vijnaneshwar. It prevails in whole of India except Bengal and Assam. Even in cases where there is no conflict between Dayabhaga and Mitakshara school, the latter is still regarded as a supreme authority.
Salient features of Mitakshara School: The following are the features of this school :—
1. A son [now daughter also after the commencement of Hindu Succession (Amendment) Act, 2005] has an interest in the ancestral property since birth and is a coparcener in such property along with his father.
2. Father has restricted power of alienation of the joint family property and the son (or daughter) can claim partition at any time.
3. Members of the Mitakshara coparcenary cannot dispose of their share while the coparcenary is not divided.
4. The rule of survivorship was applied for the devolution of interest in coparcenery property. It has been now abolished by Hindu Succession (Amendment) Act, 2005.
5. The principle of inheritance under the Mitakshara law is consanguinity.
6. According to school, ‘sapinda‘ relationship is one arising between persons through their being connected by particles of one body.
Mitakshara School is further divided into five sub-schools which substantially differed on the law of adoption and inheritance. These five sub schools are –
1. Benaras School – This school prevails in whole of North India including Orissa but not Mithila and Punjab. Mitakshara, Viramitrodaya, Dattaka Mimansa are some of the important commentaries of this school.
2. Mithila School – This school prevails in Tirhoot and North Bihar. Vivada Ratnakar and Vivada Chintamani are some of authoritative commentaries of this school.
3. Dravida or Madras School – This school governs the whole of the Madras State. Some authoritative commentaries of this school are – Smriti Chandrika, Saraswati Vilasa, Vaijayanti, etc.
4. Bombay or Maharashtra School – This school 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. Vyavhara Mayukha and Nirnaya Sindhu are some of its authoritative work.
5. Punjab School – It prevails in parts of East Punjab. It is mainly governed by customs. Mitakshara and Viramitrodaya are some of its important commentaries.
Dayabhaga school owes its orign to the Jimutvahana’s digest on leading Smritis. The Dayabhaga is not a commentary on any code like Mitakshara but it purports to be a digest of all codes. Chief authorities of this school are – Dayabhaga, Dayatatva, Daya – Sangraha. It is supreme authority in Bengal and Assam.
Salient features of Dayabhaga School : The following can be enumerated as salient features of this school :—
1. The son has no interest in his father’s property by reason of his birth and right to property arises by death of the last owner.
2. Father has absolute power of alienation over all the property, whether ancestral or self-acquired.
3. The interest of every person passes by inheritance on his death to his heirs.
4. Any member of a joint family can alienate in any manner his share even when undivided.
5. The principle of succession is based on spiritual efficacy.
6. In this school, ‘sapinda‘ means of same ‘pinda‘, i.e., a ball of rice which is offered by a Hindu as obsequies to his deceased ancestors. So, ‘sapinda‘ connotes those related by duty to offer ‘pinda‘ to the other.
Difference between Mitakshara and Dayabhaga School
1. Right to property arises by birth hence the son and after the Hindu Succession (Amendment) Act, 2005 daughters of a coparcener also, is a co-owner in the ancestral property with his or her father.
2. Father has restricted power of alienation.
3. Son can claim partition even against his father.
4. Members of joint family cannot dispose of their shares while undivided.
5. The principle of inheritance is consanguinity.
6. Cognates comes after agnates.
7. Doctrine of factum valet (a fact cannot be altered by hundred texts) is recognised to a very limited extent.
1. Right to property arises on the death of the last owner hence there is no right in ancestral property during the father’s lifetime.
2. Father has absolute right of alienation.
3. Son cannot claim partition or even maintenance.
4. Members of joint family can dispose of their property in any manner even while undivided.
5. The principle of inheritance is spiritual efficacy.
6. Some cognates, likes sister’s sons are preferred to many agnates.
7. Doctrine of factum valet is fully recognized.