Family Law I · Hindu Law · Lecture 3
Mitakshara and Dayabhaga Schools of Hindu Law
Hindu Law developed through different commentaries, digests and regional juristic traditions. Among these, the Mitakshara and Dayabhaga Schools are the two principal schools. Their difference is most clearly seen in ancestral property, right by birth, coparcenary, survivorship, partition, widow’s rights and the basis of heirship.
Lecture Map
This lecture moves from origin to comparison, then to sub-schools, migration and case law.
Origin
How commentaries created different schools of Hindu Law.
Comparison
Birth-based rights under Mitakshara and succession-based rights under Dayabhaga.
Application
Sub-schools, migration and leading case law.
Video Lecture
Watch: Mitakshara and Dayabhaga Schools of Hindu Law
Watch this lecture to understand the two principal schools of Hindu Law, their historical foundation, their differences in property and succession, the sub-schools of Mitakshara, and the effect of migration from one sub-school to another.
Understanding the Two Schools
The schools of Hindu Law arose because different jurists interpreted the ancient Smritis through commentaries and digests. These juristic writings were accepted as authoritative in different regions of India. Therefore, the schools of Hindu Law are not separate religions; they are different legal traditions within Hindu Law.
The two principal schools are the Mitakshara School and the Dayabhaga School. The Mitakshara School is followed in most parts of India, while the Dayabhaga School is mainly associated with Bengal. Even in Bengal, Mitakshara may be relevant on matters where Dayabhaga has not expressed a contrary view.
Central idea: Mitakshara is primarily associated with right by birth, while Dayabhaga is primarily associated with succession after death.
The Core Distinction Between Mitakshara and Dayabhaga
Before studying the detailed differences, it is useful to understand the basic juristic idea behind both schools. The Mitakshara School treats ancestral property as something in which the son acquires an interest by birth. The Dayabhaga School treats inheritance as opening after the father’s death, and therefore gives greater importance to succession.
Birth creates interest
Under Mitakshara, a son, grandson and great-grandson acquire a right by birth in ancestral property. This creates a coparcenary from birth and restricts the father’s absolute control over ancestral property.
Birth → Coparcenary → Survivorship → Blood relationship
Death opens succession
Under Dayabhaga, the son does not acquire the same right by birth. His ownership generally arises after the father’s death. This gives the father wider control during his lifetime and makes succession the central principle.
Death → Succession → Individual share → Spiritual benefit
Four Ideas That Explain the Topic
The entire distinction between Mitakshara and Dayabhaga can be understood through four connected ideas.
Birth or Death
Mitakshara recognises right by birth. Dayabhaga gives importance to succession after death.
Coparcenary
Mitakshara coparcenary arises by birth. Dayabhaga coparcenary arises only after the father’s death.
Survivorship
Mitakshara recognises survivorship. Dayabhaga generally follows succession rather than survivorship.
Heirship
Mitakshara is based on blood relationship. Dayabhaga is based on spiritual benefit through pinda offerings.
Meaning and Origin of the Schools
Mitakshara
The Mitakshara School takes its name from the work Mitakshara, written by Vijnaneshwara as a commentary on the Yajnavalkya Smriti. The word Mitakshara is commonly understood to mean “measured words”.
- It is followed in most parts of India.
- It recognises a son’s right by birth in ancestral property.
- It forms the basis of the Mitakshara joint family and coparcenary system.
- It places emphasis on blood relationship and propinquity for heirship.
- It recognises survivorship in relation to coparcenary property.
Dayabhaga
The Dayabhaga School takes its name from the work Dayabhaga, written by Jimutavahana. It was originally a chapter of a larger work, but this chapter became the recognised authority in Bengal.
- It is principally followed in Bengal.
- It does not recognise the son’s right by birth in the same manner.
- The son’s ownership generally arises only after the father’s death.
- It gives importance to pinda offerings and spiritual benefit.
- It does not recognise survivorship in the same manner as Mitakshara.
Differences Between Mitakshara and Dayabhaga Schools
The difference between the two schools is not merely theoretical. It affects the legal position of sons, fathers, widows and coparceners, especially in relation to ancestral property and succession.
| Basis of Difference | Mitakshara School | Dayabhaga School |
|---|---|---|
| Authoritative work | The Mitakshara School is based on the commentary written by Vijnaneshwara on the Yajnavalkya Smriti. | The Dayabhaga School is based on the digest written by Jimutavahana, which collects, reconciles and systematises rules of older Smritis. |
| Regional application | The Mitakshara School is followed in most parts of India, except Bengal and parts of Assam. | The Dayabhaga School is mainly followed in West Bengal and parts of Assam and Tripura. |
| Basis of inheritance | Inheritance is substantially based on apratibandha daya, or unobstructed heritage. The son acquires an interest by birth. | Inheritance is based on sapratibandha daya, or obstructed heritage. The son’s right is generally obstructed during the father’s lifetime and arises after the father’s death. |
| Right by birth | A son, grandson and great-grandson acquire a right by birth in ancestral property. This is the foundation of the Mitakshara joint family system. | The son does not acquire ownership by birth in the same manner. His ownership generally arises only after the death of the father. |
| Coparcenary | Coparcenary arises by birth and includes the father and male lineal descendants up to four generations under traditional law. | Coparcenary arises only after the father’s death, when heirs inherit jointly. |
| Size of coparcenary | The coparcenary is usually larger because rights arise by birth. | The coparcenary is usually smaller because rights arise only after death. |
| Partition by sons | Sons can demand partition during the father’s lifetime, subject to regional rules and limitations. | Sons cannot demand partition during the father’s lifetime because they do not have the same birthright in the father’s property. |
| Father’s power of alienation | The father cannot ordinarily alienate ancestral property except for legal necessity, benefit of estate or other recognised purposes. | The father has a wider and more absolute power of alienation over property during his lifetime. |
| Ancestral and separate property | There is a clear distinction between ancestral property and separate property. | The distinction is less rigid because inheritance generally begins after death. |
| Survivorship | The doctrine of survivorship applies to coparcenary property. | The doctrine of survivorship does not apply in the same way; property devolves by succession. |
| Widow’s right | Under traditional Mitakshara law, a widow did not receive a share during the husband’s lifetime, and her claim after his death could be excluded by survivorship. | Under Dayabhaga law, the widow may inherit the share of her deceased husband because succession, rather than survivorship, governs devolution. |
| Women as coparceners | Traditionally, females were not coparceners. Daughters became coparceners after statutory reform under the Hindu Succession (Amendment) Act, 2005. | The Dayabhaga system did not rest upon the same traditional coparcenary by birth. Widow’s succession had a stronger place because property devolved by succession. |
| Mode of partition | Partition generally takes place per stirpes, that is, according to branches of the family. | Partition generally takes place per capita, that is, in equal shares among heirs. |
| Basis of heirship | Heirship is based on blood relationship, propinquity and community of blood. | Heirship is based on religious efficacy and spiritual benefit through pinda offerings to deceased ancestors. |
| Practical emphasis | The Mitakshara system gives greater emphasis to joint family ownership, coparcenary and birth-based rights. | The Dayabhaga system gives greater emphasis to succession, individual ownership after death and spiritual benefit. |
Swipe horizontally to read the full comparison table on mobile devices.
Concise distinction: Mitakshara looks to birth, blood and coparcenary. Dayabhaga looks to death, succession and spiritual benefit.
Sub-schools of the Mitakshara School
The Mitakshara School is usually divided into four sub-schools: Dravida, Maharashtra or Bombay, Benares and Mithila. These sub-schools accept Mitakshara but also attach special importance to regional commentaries and digests.
Dravida School
The Dravida School applied in Southern India. In addition to the Mitakshara, certain works were treated as highly authoritative.
Maharashtra / Bombay School
The Maharashtra or Bombay School attaches special importance to the Mayukha literature in addition to the Mitakshara.
Benares School
The Benares School recognises certain works in addition to the Mitakshara, especially Viramitrodaya.
Mithila School
The Mithila School developed in the Mithila region and relied upon important Nibandhas and commentaries.
Effect of Migration from One Sub-school to Another
Hindu Law is a system of personal law. It traditionally attaches to the person and the family, even when the family shifts from one place to another. Therefore, if a Hindu migrates from an area governed by one sub-school to another area governed by a different sub-school, he does not automatically become governed by the law of the new place.
General Rule
A Hindu family ordinarily carries its personal law with it after migration. The original school continues unless abandonment of the old law or adoption of the new local law is clearly proved.
- Mere migration does not change the applicable school of Hindu Law.
- Mere residence in a new province is not sufficient.
- Mere acquisition of property in the new province is not sufficient.
- Clear evidence of renunciation, abandonment or adoption of the new law is required.
The reason behind this rule is that family usage and personal law are closely connected. Courts have recognised that adherence to family usage is a strong traditional habit. Therefore, the law of the place of origin continues unless a contrary intention or changed usage is proved.
Important Case Law
The following cases explain how courts applied the principles relating to migration, personal law, sapinda relationship and recognised commentaries.
Balwant Rao v. Baji Rao
This Privy Council decision is important for the rule that a Hindu family ordinarily carries its personal law after migration.
Facts
A Maharashtra Brahmin family had settled in the Central Provinces, where the Benares School was generally applicable. A dispute arose regarding the law governing succession to property.
Issue
Whether the family would be governed by the Benares School of the place of residence, or by the Maharashtra/Bombay School connected with its origin.
Held
The Privy Council held that the Maharashtra School applied because the family had not renounced its original personal law merely by migration.
Legal principle: Migration does not by itself change the school of Hindu Law applicable to a family. The original personal law continues unless abandonment or adoption of another law is proved.
Keshao Rao v. Sadasheo Rao
This case also deals with the position of a Maharashtra Brahmin family settled in the Central Provinces.
Facts
A Maharashtra Brahmin family settled in the Central Provinces and acquired property in that province.
Issue
Whether succession would be governed by the local Benares School or by the Maharashtra/Bombay School of the family’s origin.
Held
The Court held that succession was governed by Mayukha law of the Maharashtra/Bombay School even after migration.
Legal principle: Acquisition of property in another province does not by itself change the personal law of the family.
Vedachela Mudaliar v. Subramania Mudaliar
This case is relevant for understanding sapinda relationship, bandhu succession and the authority of recognised commentaries under Mitakshara law.
Facts
A dispute arose regarding inheritance to the estate of a Hindu governed by Mitakshara law. Rival claimants asserted rights as bandhus.
Issue
The question was which bandhu had the superior right to inherit and how sapinda relationship should be applied.
Held
The Privy Council emphasised nearness of blood relationship and treated recognised commentaries as useful in clarifying doubtful points.
Legal principle: Under Mitakshara, sapinda relationship and propinquity or nearness of blood are important in determining heirship.
Girdhari Lal v. Bengal Government
This case is cited for the authority of Viramitrodaya in explaining matters left doubtful by the Mitakshara.
Legal principle: Where the Mitakshara is doubtful or incomplete, recognised digests such as Viramitrodaya can be used to explain the law. The enumeration of bandhus should not be read in an unnecessarily rigid or exhaustive manner.
Key Takeaways
The central distinction is that Mitakshara is based on right by birth and blood relationship, while Dayabhaga is based on succession after death and spiritual benefit.
Mitakshara
Followed in most of India. It recognises birth-based coparcenary, right by birth, survivorship and blood relationship as the basis of heirship.
Dayabhaga
Mainly followed in Bengal. It does not recognise the same right by birth. Ownership arises after death and spiritual benefit is important.
Sub-schools
Mitakshara has four sub-schools: Dravida, Maharashtra/Bombay, Benares and Mithila.
Migration Rule
A Hindu family generally carries its personal law unless it is proved that the family abandoned it or adopted the law of the new place.