Mitakshara School vs Dayabhaga school of law

Subject: History

Context:

SC has ruled that a Hindu woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005.

Concept:

• The Dayabhaga and The Mitakshara are the two schools of law that govern the law of succession of the Hindu Undivided Family under Indian Law.
• The Dayabhaga School of law is observed in Bengal and Assam, in all other parts of India the Mitakshara School of law is observed. The Mitakshara School of law is subdivided into the Benares, the Mithila, the Maharashtra and the Dravida schools.
• The two main interpreters who wrote on Mitakshara and Dayabagha Schools were Vijnaneshwar and Jeenutavahan respectively.
• In the Mitakshara School, the allocation of inherited property was based on the law of possession by birth and a man could leave his self-acquired property to which he willed. The joint family property went to the group known as coparceners, i.e. those who belonged to next three generations and also the joint family property by partition could be, at any time, converted into separate property. Therefore in Mitakshara School, Sons had an exclusive right by birth in joint family property.
• The property is inherited in the Dayabhaga School after the death of the person who was in possession of it. The doctrine of son’s birth right and the devolution of property by survivorship had limited space in Dayabagha School.
• It is establish that in the Mitakshara Schoolneitherthe fathernor any other coparcener could normally disaffect the joint family property. Under the Dayabhaga School there is no such constraint and each coparcener has complete right of separation of his exclusive share in the joint family property. To put it simply, Mitakshara was based on the ‘principle of ownership by birth, and Dayabagha on principle of ownership by death’.
• In the Dayabhaga Scheme the division of property was very simple. If a man died intestate, his supposed the property was divided uniformly between his sons. If he has share in the common property with the brothers then the property (a share equal to his own) of the brothers would be put apart and his share would be 4 separated between the sons.
• The law of succession in the Dayabhaga School was based on the principle of religious value or divine profit. The law of inheritance in the Mitakshara School was based on the rule of blood-relationship.
• The Mitakshara School did not give complete result to the principle, and restricted it by two supplementary rules:

(1) females are excluded from inheritance

(2) importance of agnates over cognates .

This means that in case of a death of a Hindu man leaving behind a son and a daughter, the latter would be excluded totally and the former would get the entire property. In case he leaves behind a son’s son and a daughter’s son, the former should succeed to the entire property and the latter would be excluded.

• The Mitakshara school of Hindu law codified as the Hindu Succession Act, 1956 governed succession and inheritance of property but only recognised males as legal heirs. The law applied to everyone who is not a Muslim, Christian, Parsi or Jew by religion. Buddhists, Sikhs, Jains and followers of Arya Samaj, BrahmoSamaj are also considered Hindus for the purposes of this law.

Source: https://shodhganga.inflibnet.ac.in/bitstream/10603/189726/6/chapter%202.pdf