INFORMATION

TECHNOLOGY
ASSIGNMENT

Critical analysis of IT Amendment

Act 2008 with special referenceto
cyber crime.

MILIND RANA
Vth SEMESTER
16225BLT034
INDEX
Acknowledgement

Introduction

Mitakshara School

Dayabhaga School

Difference between Mitakshara and Dayabhaga School

Female as Coparcener

Effect of Migration

Bibliography
 Introduction
The modern Hindu law is divided into two parts one is codified Hindu law and other is un
codified Hindu law. Codified Hindu law applies to every Hindu. In codified part of Hindu law,
there is no relevance of Schools of Hindu Law. But according to Mayne the schools of Hindu
laws are still relevant more or less the same way as they were before codification. We all know
that Vedas and Smritis are the most reliable source for laws in India but they are not easy to
understand. So many scholars throughout India wrote commentaries on Vedas and Smritis by
including local customs. So this an number of commentaries led to the development of these
schools1. There are two main schools of Hindu Law:

1. Mitakshara School : It has four sub schools-

(a) Benaras School
(b) Mithila School
(c) Maharashtra School or Bombay School
(d) Dravida School
2. Dayabhaga School

Mitakshara School

The Mitakshara School got its name from the Commentary called Mitakshara written by
Vijnaneshwara on Yajnavalkya Smriti. The Mitakshara in its turn has been the subject of several
commentaries. Amongst them the best known are Subodhini and Balambhatti written by
Balakrishna alias Balabhatta in name of his mother Lakshmidevi towards the end of 18th Century
A.D.. By this time caste system was fully entrenched. He classifies all society into four classes,
the Brahmin, the Kshatriya, the Vaishya and the Shudra. He lays down minute rules regarding
pregnancy and the rites to be performed from time to time till the sacred thread ceremony. He
forbids marriage between a Shudra and Brahmins and advocated limited polygamy. He recites
eight types of marriage and out of the four were the acceptable. Inter caste marriage was limited
to upper castes. The second part of his work deals with vyavhar and embraces the rules of

1
Collector of Madrai v/s Mottaramlingam
common morality. His work on partition and inheritance is in great detail and is the basis of the
present day law on partition. The rest of the work deals with boundary disputes, bailments,
mortgage, rule of evidence, duties of kings etc.

Mitakshara Sub Schools

The four sub schools of Mitakshara to a large extent follow same fundamental principles of
Mitakshara, though on some matters they differ among themselves. There were some differences
on succession and adoption but they are removed by The Hindu Succession Act, 1956 and Hindu
Adoption and Maintenance Act, 1956.

1. Banaras School
It extends to the whole of the Northern India except in rural Punjab where its authority
has been considerably modified by customary law. The main authorities of the school are
the Viramitrodaya and Nirnaya Sindhu.
2. Mithila School
It operates in Tirhut and certain districts of Northen Bihar. The main authorities are
Vivada Chintamani and Vivada Ratnakara.
3. Bombay School
It extends to western India western India including the states of Gujarat and Bombay. The
main authorities are the Vyavahar Mayukha, the Viramitrodaya and the Nirnaya Sindhu.
4. Madras School
The Dravida or Madras school covers southern India including the States of Tamil Nadu,
Karnataka, AndhraPradesh and Kerala. The main authoriries of this school are Smriri
Chandrika, Saraswati Vilasa and Vyavahara Nirnaya.

Dayabhaga School
The Dayabhaga School which find its following mainly in Bengal and Assam is not a
commentary on any particular code but is a digest of all the codes. It has been written by
Jimtavahana who lived sometimes in 12th century. Dayabhaga is not divided into any sub-
schools. Jimutvahan professes to base his views on the Manusmriti which he says have not been
fully comprehended. He propounds the theory of spiritual benefit fot he governance of the rules
of succession. The immediate benefit of this new theory was the inclusion of many cognates in
the list of heirs, excluded by the Mitakshara which was mainly agnatic2. Without accepting the
set of propositions laid down by other commentators, he deals with the subject of inheritance,
partition and succession as an objective science with a fortnight and direct approach. He appeals
to reason and logic and not merely to precepts, precedents or postulations. Examining the roots
by digging up various stand points, he plunges into the heart of the subject to come up with
doctrines that were close to practically and rationally.

Difference between the two schools

Mitakshara and dayabhaga differ in certain matters. Basic differences are-

2
Prof. V.C. Sarkar Hindu Law p.48
 1. On the basis of Succession
The Mitakshara school bases its law of inheritance on principle of Proponquity(nearness)
while Dayabhaga school bases its law of succession on principle of religious efficacy.
The principle of propinquity means that one who is nearer in blood relationship succeeds.
It means sons and daughters will get the property equally because they are the nearest to
their father. But Mitakshara did not give full effect to the principle. It is limited by two
subsidiary Princles
(i) Exclusion of females from inheritance
(ii) Preference of agnates over cognates

Thus a Hindu dies leaving behind a son and a daughter, the daughter will be excluded from the
property by following the first principle. Similarly if Hindu dies leaving a son’s son and
daughter’s son, the son’s son will succeed to the entire property by application of second
principle.

The principle of religious efficacy means that the one who perform after death rituals of the
deceased will be entitled to inheritance. The conferment of religious benefit is based on the
doctrine of offering of oblations or Pindadana to deceased. Although the principle is based on the
religious doctrine its operation does not always lead to preference of agnates over cognates.

Under the Modern Hindu Law this difference between two main schools is no more exists. Under
the Hindu Succession Act, 1956 we have one uniform law of succession for all Hindus
irrespective of school, to which they belong.

2. On the basis of joint family

The Mitakshara school propounds the doctrine of son’s right by birth in the joint family property.
It is a unique contribution of this school to Hindu jurisprudence. This doctrine means that the
moment a son is born in family he acquires an interest in joint family property. The doctrine
means that each son on his birth acquires an equal interest with his father in the joint family
property. It follows the principle of survivorship. In other words the joint family property does
not pass by inheritance but it goes to coparceners i.e. who are able to live longer than others. On
the other hand son has no right by birth in any property. So long as the father is alive he is the
master of all properties whether ancestral or self- acquired.

The concept of joint family property under the Mitakshara school implies the notion of
community of ownership and unity of possession. This expression means that before partition no
individual coparcener can say that he owns so much share in the joint family property. The
interest of coparceners is fluctuating, it diminishes on birth and increases on death in family. But
there is no concept of birth right under the Dayabhaga school, interest of coparceners remains
constant, not effected by death or birth in the family. Under both the school unity of the
possession is same.

Hindu Succession Amendment Act, (2005) and females as coparceners

The most significant amendment made by the Hindu Succession Amendment Act, (2005) was to
make the daughter a coparcener by birth in her own right. The term Mitakshara Coparcener now
includes daughters in it. A daughter now has the same rights in the Coparcenary property as that
of a son and is subject to the same liabilities as that of a son in respect of the said Coparcenary
property. For example if the Coparcenary property is subject to some debts then on partition the
female as a coparcener would also be liable to pay the debts over her share of the property and
thus is subject to the same sets of liabilities as that of a son in respect of the said property. Also
any property which a daughter obtains under the amended section will be held by her with the
incidents of Coparcenary property and she can dispose it off by the testamentary disposition.
This act also abolishes survivorship and the only modes of devolution now followed are
testamentary or intestate succession. Further in case of notional partition the daughter is allotted
the same share as is allotted to a son. This act also removes the obligation of a son, grandson or
great grandson to pay the debts of his father, grandfather or great grandfather solely on the
ground of his pious obligation thus bringing equality amongst sons and daughters.
In case of Prakash and Ors vs Phulvathi and Ors 3the Supreme Court has categorically held that
the Amendment Act is prospective in nature. Therefore, it is only from 09/09/2005 onwards that
the daughters would be considered as coparceners and have an equal share as that of sons in joint
family property. However, this does not mean that the daughter has to be born after 2005. The
daughter may have been born at any time prior to 2005 but the daughter must be living in 2005
for her to claim a share. This would imply that if a daughter has died prior to 2005, her legal
heirs cannot claim that they should be having a larger share on the basis that the daughter, had
she been alive, would have had an equal share in the joint family properties.

Effects of Migration

When a Hindu migrates from one part of India to another prima facie he carries with him his
personal law. Thus it is his law in operation at the time of migration which applies even though
the law is ascertained by decisions, subsequent to migration.4 However this is a merely
apresumption and can be rebutted by showing that the family adopted the law or usage of the
palce to which it migrated by confronting to the manners, customs and usages of the people
among whom it came to live.5 So if a family migrates from Benaras to Bengal where the
Dayabhaga school prevails, will continue to be governed by Benaras school of law in all personal
matter including succession to immovable property. This rule is an exception to the rule of
Private International Law that immovable property is governed by lex situs.

In Balwant Rao v. Baji Rao6 Privy Council said where a Hindu family migrates from one part of
india to another part of India prima facie they carry with them their personal law and if they are
alleged to have become subject to a new local custom, this new custom must affirmatively be
proved to have been adopted. The analogy is that of a change domicile on settling in anew
country rather than the analogy of a change of custom on migration within India.

3
2015(6) Kar L J 177
4
Lachman v. Jhagar AIR 1939 All 437
5
Sarda v. Umakanta AIR 1923 Cal. 584
6
1920 41 IA 213
Bibliography

1. Paras Deewan Family Law

2. Dr. S.R. Myneni Hindu Law
3. Hari Kohli Supreme Court on Hindu Law
4. Mullah on Hindu Law