Successfully reported this slideshow.
You’ve unlocked unlimited downloads on SlideShare!
Schools of Hindu Law came into being when different commentaries
appeared to interpret “Smritis” with reference to different local customs in
vogue in different part of India.
In Rutchepatty v/s. Rajendra(1839) , it has been observed by the Privy
Council that the different local customs prevailed in different provinces of
India. The commentators of the smritis could not ignore the local customs
and usages and while interpreting the texts, they eventually incorporated
different local customs. The local conditions and customs of the different
provinces have, therefore, gone to mould the principles of law prevailing in
o In Collector of Madhura v/s. Mooto Ramalinga, the Privy Council has
held that “The ancient sources of Hindu Law i.e., Smritis are common to
all different schools. The process by which those schools have been
developed seems to have been of this kind. It works universally or very
generally received becomes the subject of subsequent commentaries.
The commentators puts his own gloss on ancient texts; and his authority
having been received in one and rejected in another part of India, thus
the school with conflicting doctrines arose.”
The Schools of Hindu Law has emerged from the commentaries and
digests. There are two main schools namely:-
1) Mitakshara School and
2) Dayabhaga School
Mitakshara and Dayabhaga are the two important schools of Hindu Law
which has given us the required information about the present legislated
It remarked Smritis and didn’t agree on all the concept of smritis.
Vignaneshwara Commentary on Yagnavalkya Smriti is called Mitakshara,
which means ‘measured in words’.
Dayabhaga School got its name from a leading smritis named Dayabhaga
written by Jimutavahana.
Mitakshara is written on later part of 11th century – comprehensive
commentary dealing with all titles of Hindu Law.
Mitakshara prevails in all over India except the state of Bengal and Assam.
Mitakshara School has been categorized in five school:-
i) The Benaras School – applicable in whole of North India including
Orissa and Madhya Pradesh.
ii) The Mithila School- applicable in Tirhoot and North Bihar
iii) The Bombay or Maharashtra School - prevails in whole of Bombay and
iv) The Punjab School- prevails in North-East Punjab.
v) Difference between Mitakshara and Dayabhaga School:-
1) As regards Joint Property:
Right to property arises by birth(of the claimant); hence the son is a co-
owner with the father in ancestral property. After the commencement of the
Hindu Succession (Amendment) Act,2005,the daughter of a coparcener is
also a coparcener.
The interest of a member of the joint family would, on his death, passed to
the other members by survivorship. Section 6(3) of the Hindu Succession
Act, as substituted by the Hindu Succession (Amendment) Act,2005
abolishes the principles of survivorship.
2) As regards Alienation:
Members of the joint family cannot dispose of their shares while
3) As regards Inheritence:
The Principle of Inheritence is Consanguinity (blood relationship)
3) As regards Inheritance:
But in Mitakshara School of Law cognates are postponed to agnates.
4) As regards Doctrine of Factum Valet:(Meaning:- fact cannot be altered
by Hundred texts).
It is less inclined towards the Doctrine.
1) As regards Joint Property:
Right to property by death (of the last owner); hence son has no right to
ancestral property during father’s lifetime.
The interest of every person would, on his death, pass by inheritance to
his heirs, like widow or daughters.
On death of the holder of the property, the property will fall on his legal
heirs according to the rule of inheritence or succession.
2) As regards Alienation:-
Any members of joint family may sell or give away his share even when
3) As regards Inheritence:-
The Principle of Inheritence is spiritual efficacy(i.e., spiritual efficacy)
Some nearer cognates like sister’s son are preferred to many agnates.
4) As regards Doctrine of Factum Valet:-
It is completely inclined towards Doctrine.
(i) Under the new Hindu Law, the difference between the two schools are
no longer tenable.
(ii) Under the Hindu Succession Act,1956 we have one uniform law of
succession for all Hindus, whatever school they may belong.
vii) Migration and The School of Law:-
On migration the family continues to be governed by the law of locality of
origin and the burden is heavy on the party alleging otherwise.
The presumption is that if a family migrates from one state to another, it
carries with it the customs regulating succession and family relations
prevailing in the state from where it comes. However, this presumption may
be rebutted by proving that the family has now already adopted the law and
usages of the state to which it has migrated.
It is a settled law that there is a presumption that parties residing in a
particular area are governed by lex loci unless migration is proved. The
burden of proving that the family came from other tract and is, therefore,
governed by some other branch of Hindu Law, is on the party which asserts
it (Mst.Anjubai v. Ramchandra Rao, AIR 1960). The ordinary
presumption, therefore, is that a Hindu is governed by the law of its land
where he resides. This presumption is, however, not based on the theory of lex
loci, but on the ground of its being a personal law(Basani v. Dattoba).
Their Lordship of the Privy Council observed : “Where a Hindu Family
migrates from one part of India to another, prima facie they carry with them
their personal law, and if they are alleged to become subject to a new local
custom, this new custom must be affirmatively proved to have been adopted
but when such a family emigrates to another country and being themselves
Mohammedans, settle among Mohammedans, the presumption that they have
accepted the law of the people whom they have joined seems to their Lordships
to be one that should be much more readily made. The analogy is that of a
domicile on settling in a new country rather than the analogy of a change of
custom on migration within India.”(Abdurahim v. Halimabai)
Of course, if nothing is known about a man except that he lived in a
certain place, it will be assumed that his personal law is the law which
prevails in that place. In such a case domicile plays an important role.