Schools of Hindu Law and Concept of Coparcenary

Schools of Hindu Law and Concept of Coparcenary

Schools of Hindu Law

Introduction to Schools of Hindu Law: The expression school of law is applied to different legal opinions prevalent in different parts of India. Strictly speaking, there are only two main schools of Hindu law: the Mitakshara and the Dayabhaga. All the other schools are sub-schools of the two. There are fundamental differences of doctrine between these schools. The Mitakshara is the supreme authority in India except in Bengal. In Bengal, the Dayabhaga is considered a superior authority. 

The subdivisions of the Mitakshara are as follows: 

  1. The Benaras school
  2. The Maharashtra school
  3. The Mithila school and
  4. The Dravida school

The subdivision was carried even to the extent of dividing the Dravida into a Tamil, a Karnataka, and an Andhra Pradesh school. The Mitakshara written by Vigneswara is a running commentary on the Smritis of Yagnavalka, whereas the Dayabhaga is written by Jimutavahana.

Differences between Mitakshara and Dayabhaga schools of Hindu law

The basic differences between Mitakshara and Dayabhaga are stated below:

  1. The school of Mitakshara prevails all over India except in Bengal, whereas the school of Dayabhaga prevails only in Bengal.
  2. The Mitakshara school was formed on the commentary written by Vigneswara, whereas the school of Dayabhaga was formed on the commentary written by Jimutavahana.
  3. The Mitakshara school is a commentary, whereas the Dayabhaga school is a digest of all the codes. 
  4. The Mitakshara school is an orthodox school, whereas the law Dayabhaga school is a reformed school. 
  5. Under the Mitakshara school, heirship is founded on blood relationship or propinquity. However, under the Dayabhaga school, the dominating factor is the principle of religious efficiency or spiritual benefit.
  6. The Mitakshara school recognizes the right of the sons t control and challenge unauthorized alienations of ancestral property by the father. The son has no such right under the Dayabhaga school. The father is the absolute owner in his lifetime.
  7. The Mitakshara school established the birthright of the son over the ancestral property held by the father. This entitles the son to claim partition of the property during the father’s lifetime. The Dayabhaga school does not recognize such birthrights. Jo
  8. A woman cannot be a member of a Mitakshara coparcenary. oin The Dayabhaga school recognizes the rights of a widow to succeed after her husband and to enforce partition against the husband’s brother on her account.
  9. In the Mitakshara coparcenary, no coparcenary has a defined or ascertained share in the property. Upon the death of a coparcener, his interest passes by survivorship to the coparcener. Under the Dayabhaga school, on the death of the father, his sons take the father’s property as quasi- severally as a partitioned succession whereby each brother is free to alienate his share.
  10. Members of the joint family cannot dispose of their shares until it is undivided under the Mitakshara school. However, under the Dayabhaga school, a member of a joint family may sell or give away his share even when undivided.

Also Read: Adoption under the Hindu Adoptions and Maintenance Act, 1956

Hindu Joint family and Coparcenary

The Hindu joint family is peculiar to Hindu society only. The concept of Hindu law is deeply rooted in Hindu philosophy and Hindu religion. Till today, no precise definition of the word Hindu is available in any statute or judicial pronouncement; it has defied all efforts at definition.

There are two main schools of Hindu law: the Mitakshara school and the Dayabhaga school, also known as the Bengal school. They have emerged in the era of digests and commentaries. The codified Hindu law lays down uniform law for all Hindus. In the codified areas of Hindu law, there is no scope for the existence of schools. The schools of Hindu law have relevance only in respect of the uncodified areas of Hindu law.

A Hindu joint family consists of all persons who are lineal descendants from a common ancestor. It includes their wives and unmarried daughters. The coparceners are the owners of the joint family property. The coparcenary property. It is to be noted that only male members are coparcenary. coparceners have the right of partition in 

The Mitakshara joint family is a unique contribution to Hindu law which has no parallel in any ancient or modern system of law.

PRESUMPTION

In Hindu law, there is a presumption that every family is a joint Hindu family. The males in a joint Hindu family, up to four generations from a common male ancestor, are known as coparceners, and they acquire a right by birth in the joint Hindu family property. This group of males is known as coparcenary.

Generally, an undivided family which is a normal condition of Hindu society is ordinarily joint not only in the estate but in food and worship. A joint Hindu family does not consist of male members only. It may consist even of females.

HINDU COPARCENARY

A coparcenary is a sole creature of law and cannot be created by any act of parties except in case of adoption. When adoption is effected, a stranger may be entered in the joint family as its member. Hindu coparcenary is a much narrower body than a joint Hindu family.

It includes only those persons, who acquire an interest by birth SE in the joint or coparcenary property. It is to be noted that no coparcenary can commence without a common male ancestor.

In the case of Hindu coparcenary, the property of a male Hindu can be divided into two parts:

  1. Self-acquired property and
  2. Ancestral property. 

Self-acquired Property

The self-acquired property is his separate and independent property. It does not constitute coparcenary property.

Ancestral Property

The inherited by a Hindu from his father, father’s father property, and father’s father’s father is ancestral. The gains of earning by way of educational qualification obtained by a member maintained out of joint family funds was also originally considered as part of coparcenary property. However, now it is well settled that it does not constitute coparcenary property by virtue of the Hindu Gains of Learning Act, 1930.

Ancestral property may be dealt with under the following heads:

  1. Property inherited from a paternal ancestor.
  2. Property inherited from the maternal grandfather.
  3. Property inherited from collaterals (descending from the same ancestor).
  4. Share allotted on the partition.

Classification of Coparcenary Property

The following are the classifications of properties:

  1. The coparcenary property or ancestral property or joint family property.
  2. Self-acquired property or separate property. 

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