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Mitakshara School Of Law

Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy every need and welfare of the people. The assets of the idea for Hindu Law are Shruti (phrases of God), Smriti(text), customs (vintage practices), commentaries, and digest.

The codified law and uncodified law are two types of Modern Hindu Law. Codified law administers each Hindu. The concepts of schools of Hindu Law do now no longer exist in codified law, however, it exists in uncodified Hindu Law. Vedas and Smritis had been the forms of sources in which, many pupils all-round India, wrote the commentaries which shaped the idea for schools of Hindu Law.

With the improvement of the Smriti got here the disparity in opinion among commentators and interpreters. There turned into no authoritative role of regulation, despite the fact that diverse codes had been developed. An authority will be regular in a single part of India and absolutely rejected in different elements of India. Persons who regular one authority had been probably now no longer to simply accept different authorities. Thus, different schools of thought emerged.

Schools of thought refer to the divided opinions on a subject matter. Thus, schools of thought on Hindu law refers back to the various and divided opinions on the policies and principles of Hindu Law. Unlike statutes, they may be now no longer codified. They do now no longer have the force of law. However, they affect the minds of the legislature or lawmakers.
Schools of Hindu law are commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed to its development.
The two major schools of India are as follows:
  1. Mitakshara
  2. Dayabhaga

Mitakshara

Mitakshara: a very modest title which means a short compendiumóis a running commentary on the Code of Yajnavalkya,187, and a veritable digest of Smriti law. It was written in the latter part of the eleventh century by Vijananeshwara, an ascetic additionally mentioned as bearing the name Vijnana Yogin. In Mitakshara which is more of a digest than a mere commentary on a specific Smriti, we discover the quintessence of the Smriti law and its precepts and injunctions.

The chief merit of the work consists in its comprehensive treatment of almost all vital topics of the law and also the synthesising of assorted Smriti texts. it's of supreme authority throughout the Republic of India except in Bengal where the Dayabhaga of Jimutavahana is given dominant importance. In Bengal, the Mitakshara is more revered than followed however its authority isn't questioned on points on that there's no conflict between it and also the works prevalent there.

The Mitakshara is given general predominance in all the four minor schools which aren't any over sub-divisions of the Mitakshara school but in Gujarat, the island of Bombay, and North Konkan, the Mayukha, a trendier written material is allowed to contend with it and even considered an overruling authority on certain points; and within the Mithila, there are some deflections from the parental authority.

Vijananeshwara analyses and discusses the tests of Yajnavalkya sometimes at considerable length. as the council has observed, he "explains the meaning of recondite passages, supplies omissions and reconciles discrepancies by frequent regard to alternative old expounders of law".188 He has the great merit of being pontifical and being simply readable. Mitakshara is one of the maximum vital schools of Hindu law. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them.

Sub-Division Of Mitakshara School

The Mitakshara school is sub-divided into four minor schools; these differ between themselves in some matters of detail, relating particularly to adoption and inheritance. All these schools acknowledge the supreme authority of Mitakshara, but they give preference to certain treatises and to commentaries which control certain passages of Mitakshara. This accounts for the differences between those schools.

They are namely:
  • Banaras Hindu law school
  • Mithila law school
  • Maharashtra law school
  • Dravida or madras law school

Banaras law school
This law school comes under the authority of the Mitakshara law school and covers Northern India including Orissa. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries. The Benares School is sometimes called the most orthodox of the different schools of Hindu law.

Mithila law school
This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The principles of the law school prevail in the north. The major commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara. The Kalpataru by Lakshmidhara is a work that is freely cited by the exponents of the Mithila School.

Maharashtra or Bombay law school
The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts including Gujarat Karana and the parts where there is the Marathi language is proficiently spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.

Madras law school
This law school tends to cover the whole southern part of India. It also exercises its authority under Mitakshara law school. The Smriti Chandrika of Devanna Bhatta,233 who flourished at the close of the twelfth century has all along had a commanding influence in South India. It is an exposition on the law of inheritance and was considered by Colebrooke to be a work of uncommon excellence, equal, if not superior, to Parashara Madhaviya which also is a leading authority in the South. The main authorities of this school are Smriti Chandrika, Vaijayanti, etc.

Mitakshara Joint Hindu Family

According to the Mitakshara law school, a joint family refers only to the male member of a family and extends to include his son, grandson, and great-grandson. They collectively have co-ownership/Coparcenary in the Joint Family. Thus a son by birth acquires an interest in the ancestral property of the joint family.

Under the Dayabhaga law school, the son has no automatic ownership right by birth but acquires it on the demise of his father. The Hindu joint family is a normal condition of Hindu society. Its origin can be traced to the ancient patriarchal system where the patriarch or the head of the family was the unquestioned ruler, laying down norms for the members of his family to follow, obeyed by everyone in his family, and having an unparallel control over their lives and properties.

At the root was the general family welfare or promotion of the family as a unit for which the personal interests of the family members could be sacrificed. Under Hindu law therefore the joint family system came first in historical order and the individual recognition of a person distinct from the family came later. The ancient system generally treated the property acquired by the members of the family as family property or the joint property of the family with family members having one or the other right over it.

With the gradual transformation of the society and recognition of the members of the family as independent in their own right, the concept of separate property and rules for its inheritance were developed. This dual property system, though considerably diluted1, has survived the lashes of time, the judicial and legislative onslaught, and the Hindu society still recognises the joint family and joint family property as unique entities having no similar concept alive anywhere else in the world.

Composition Of Hindu Joint Family: Classical Concept

A ĎHindu Joint Familyí consists of all male members descended lineally from a common male ancestor together with their mothers, wives or widows, and unmarried daughters. An unmarried daughter on marriage ceases to be a part of her fatherís joint family and joins her husbandís joint family as his wife. If a daughter becomes a widow or is deserted by her husband and returns to her fatherís house permanently, she again becomes a member of her fatherís joint family.

Her children however donít become members of her fatherís joint family and continue being members of their fatherís joint family. Even an illegitimate son of a male descendant would be a member of his fatherís joint family. A child in the womb till it is born is not a member of the joint family for taxation purposes but is treated as in existence for certain purposes under Hindu law.

Mitakshara coparcenary
The primary purpose of understanding the concept of Mitakshara coparcenary was spiritual in nature. A coparcener in relation to the father is a person who can offer a funeral cake to him. This capability to offer spiritual salvation by the performance of funeral rites was with the son, son of a son (grandson), and son of a son of a son (great-grand-son)1 and as a consequence of it, they were conferred a right by birth in the property of the father.

This religious aspect that associated primarily with relationships and spiritual benefits and not merely from the property perspective was totally sidelined later by the legal aspect. The revenue authorities view coparcenary purely from the property angle. Presently it is understood to ascertain the rights and obligations of the members in the joint family property that is also called the ancestral property or the coparcenary property.

A person is the exclusive owner of his self-acquisitions and no one else, including his family members, has the legal power to restrict his rights over the separate property, save in accordance with the provisions of law. However, under Hindu law, where a person possesses an interest in ancestral or coparcenary property, he is not the sole owner of it, and his son, son of his son (grandson), and son of his son (great-grandson) acquire a right by birth in this property.2

 All such sons, grandsons, and great-grandsons irrespective of their numbers will be coparceners with him having joint ownership in this property. Presently the concept of coparcenary is linked with the ownership of this property.

Formation Of Mitakshara Coparcenary

A single person cannot form a coparcenary. There should be at least two male members to constitute it. Like a Hindu joint family, the presence of a seniormost male member is a must to start a coparcenary. As aforesaid, a minimum of two members is required to start and even continue a coparcenary. Moreover, the relationship between father and son is essential for starting a coparcenary.

Women As Coparceners

Under Mitakshara's coparcenary, women cannot be coparceners. A wife under Hindu law has a right of maintenance out of her husbandís property yet she is not a coparcener with him. A widow of a deceased coparcener is not a coparcener and therefore cannot be treated as the Karta of the family. Consequently, an alienation made by her will not be binding on the family members and will bind her own share in the property.

Even a widow succeeding to her deceased husbandís share in the joint family under the Hindu Womenís Right to Property Act, 1937 is not a coparcener. However, even though she cannot be a manager or Karta, yet she can be assessed as the head of the joint family for the purposes of income tax. A mother is neither a coparcener with her sons nor with her daughter even if they happen to be devadasis. Similarly, a mother-in-law cannot be a coparcener with her daughter-in-law.

Difference between Mitakshara and Dayabhaga Schools:
The differences between the Dayabhaga and the Mitakshara schools of law may be categorized under the following
  1. Joint Family:
    According to the Mitakshara law school a joint family refers only to the male member of a family and extends to include his son, grandson, and a great-grandson. They collectively have co-ownership/Coparcenary in the Joint Family. Thus, a son by birth acquires an interest in the ancestral property of the joint family.

    Under the Dayabhaga law school, the son has no automatic ownership right by birth but acquires it on the demise of his father. In the Mitakshara school, the fatherís power over the property is qualified by the equal rights by birth enjoyed by a son, a grandson, and a great-grandson.

    An adult son can demand partition during his fatherís lifetime or his three immediate ancestors. He has a say in the disposition of the family property and can oppose any unauthorized disposition of ancestral or family property. This is not possible under Dayabhaga school as the father has overall and uncontrolled power over the family property till death.
     
  2. Coparcenary/Co-ownership:
    Under the Mitakshara school of law all the members of the joint family enjoy coparcenary rights during the fatherís lifetime. Under Dayabhaga School when the father is alive the sons do not have coparcenary rights but acquire them on the death of the father. In the Mitakshara School of coparcenerís share is not defined and cannot be disposed of. In the Dayabhaga the share of each Coparcener is defined and can be disposed of.
     
  3. Partition:
    While both the Mitakshara and the Dayabhaga schools hold that the true test of partition is in the intention to separate the manifestation of this intention is different in each of the schools. In the case of Mitakshara School, the intention involves holding the property is defined definite shares while in the Dayabhaga School there has to be a physical separation of the property into specific portions and assigning of separate share to each coparcener.

    In the Mitakshara system, none of the members of the coparceners can claim a definite physical share of the joint property. So, partition in this system involves ascertaining and defining the share of the coparcener i.e. In the numerical division of the property. In the Dayabhaga system, each of the coparceners has a definite share in the joint family property even though the family is joint and undivided and the possession is common. So, partition in this system involves the physical separation of the joint property into the separate shares of the coparceners and assigning to each of the coparceners the specific portion of the property.
     
  4. Rights of Women:
    In the Mitakshara system the wife cannot demand partition. She, however, has the right to a share in any partition affected between her husband and her sons. Under the Dayabhaga this right does not exist for the women because the sons cannot demand partition as the father is the absolute owner. In both the systems, in any partition among the sons, the mother is entitled to a share equal to that of a son.

    Similarly, when a son dies before partition leaving the mother as his heir, the mother is entitled to a share of her deceased son as well as a share in her own right when there is a partition between the remaining sons.
     
  5. Widowís rights:
    When one of the brothers dies, his widow can succeed to his share under the Dayabhaga but under the Mitakshara her rights are excluded by the right of survivorship of the brothers. The widow can then have only a right to maintenance.
     
  6. Sapinda: Heirship:
    The relationship of Sapinda arises according to Mitakshara by propinquity or community of blood. Under the Dayabhaga it arises utilizing Pinda offerings to deceased ancestors. The spiritual benefit is the criterion for heirship under the Dayabhaga while consanguinity (blood relationship) is the guiding principle under the Mitakshara.
     
  7. Survivorship:
    Brothers who have inherited property from their father have a right of survivorship in the Mitakshara joint family. The Dayabhaga does not respond to any right of survivorship and the brothers hold in quasi- severalty with the full power of alienation.

Conclusion
It can be concluded that the Mitakshara system is Conservative. It provides good security in difficult times as a member can rely on the joint family. However, sometimes a member can become a parasite.

Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy every need and welfare of the people. The assets of the idea for Hindu Law are Shruti (phrases of God), Smriti(text), customs (vintage practices), commentaries, and digest.

The codified law and uncodified law are two types of Modern Hindu Law. Codified law administers each Hindu. The concepts of schools of Hindu Law do now no longer exist in codified law, however, it exists in uncodified Hindu Law. Vedas and Smritis had been the forms of sources in which, many pupils all-round India, wrote the commentaries which shaped the idea for schools of Hindu Law.

With the improvement of the Smriti got here the disparity in opinion among commentators and interpreters. There turned into no authoritative role of regulation, despite the fact that diverse codes had been developed. An authority will be regular in a single a part of India and absolutely rejected in different elements of India. Persons who regular one authority had been probably now no longer to simply accept different authorities. Thus, different schools of thought emerged.

Schools of thought refer to the divided opinions on a subject matter. Thus, schools of thought on Hindu law refers back to the various and divided opinions on the policies and principles of Hindu Law. Unlike statutes, they may be now no longer codified. They do now no longer have the force of law. However, they affect the minds of the legislature or lawmakers.

References:
  1. Family Law Lectures: Family Law II Book by Poonam Pradhan Saxena
  2. Family law by Mulla

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