The main points of difference between the Mitakshara and Dayabhagaa are as follows:—
(1) As Regards Joint Property:
Under the Mitakshara—
1. The right to property of the coparcener arises by birth; hence the son is a co-owner with the father in ancestral property, whereas under the Dayabhaga the right to property arises after the death of the last owner. Hence the son has no right to ancestral property during father’s life time.
ADVERTISEMENTS:
2. Under the Mitakshara the father has the restricted power of alienation of ancestral property whereas the father has the absolute power of alienation of ancestral property under the Dayabhaga School.
3. Under the Mitakshara the son can ask for partition of the joint family property even against the father, whereas under the Dayabhaga the son cannot demand partition against the father.
4. The interest of a member of joint family under the Mitakshara would, on his death pass to other members by survivorship whereas under the Dayabhaga, the interest of a member would, on his death, pass by inheritance to his heirs namely widow, son and daughters.
5. Under the Mitakshara, members of joint family cannot dispose of their shares while undivided, whereas under the Dayabhaga any member of joint family may sell or give away his share even when undivided.
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ADVERTISEMENTS:
The modern Hindu Law does not affect the joint family system of Hindus and therefore both the Schools with their differences still operate. The Hindu Succession Act, 1956, affects the Mitakshara joint family only on its fringes.
(2) As Regards Inheritance:
1. Under the Mitakshara, inheritance is governed by the rule of consanguinity i.e., blood relationship, whereas under the Dayabhaga inheritance is governed by the rule of religious efficacy i.e., offering of Pindas.
2. Under the Mitakshara, cognates are postponed to agnates but under the Dayabhaga some cognates like sister’s sons are preferred to many agnates.
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3. As regards the recognition of the doctrine of factum valet, Mitakshara extended its recognition to a very limited extent but Dayabhaga has extended its full recognition to it.
Under the modern Hindu Law, the difference between two main schools is no longer tenable. Under the Hindu Succession Act, 1956, we have one uniform law of succession for all Hindus, to whatever school or sub-school they may belong.
Migration and the School:
A Hindu is governed by the law of the place to which he originally belonged. On migration he continues to be governed by the law of the original domicile. A Hindu family carries with it, its law including customs of locality and the burden is heavy on the party alleging otherwise.
Where a Hindu Marwari governed by the Benaras school of law migrated from Jodhpur it was held that the Hindu Womens Right to Property Act, 1937 applied to his estate on the ground that law does not hold a migrating family to be immune from changes introduced in the law of its origin by statutes governing all Hindus subsequent to its migration.
It is a settled law that there is a presumption that parties residing in particular area are governed by the lex loci unless migration is proved. The burden of proving that the family came from some other tract and is, therefore, governed by some other branch of Hindu law is on the party which asserts it.
The ordinary presumption is that a Hindu is governed by the law of the 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.
Their Lordships of the Privy Council said, where a Hindu family migrates from one part of India to another, prima fade they carry with them their personal law, and if they are alleged to have become subject to a new local custom, their 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 when they have joined seems to their lordships to be one that should be much more readily made.
The analogy is that of a change of domicile on settling in a new country rather than the analogy of a change of custom on migration within India. If nothing is known about a man except that he lived in 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, e.g., Khojas and Kutchi Memons of Kutch and Kathiawad on migration to Madras and other parts of India retained the (Mitakshara) rules of Hindu law in general not only in matters of succession and inheritance but also with regard to their property including the Hindu concept of coparcenary and survivorship.
Doctrine of Factum Valet:
The corresponding maxim in Roman Civil law for this is “factum valet quad fieri non debuit” i.e., what ought not to be done becomes valid when done. This doctrine was applied by British Courts in India. The doctrine declares that a fact cannot be altered by a hundred texts of law.
If a fact is accomplished or an act is done the fact will nevertheless stand and the act done will be deemed to be legal and binding. This doctrine was originally enunciated by the author of the Dayabhagaa School and was recognised by the followers of Mitakshara School. The doctrine applies only to directory texts and not to mandatory text; the application of the doctrine cannot cure it.