Mitakshara and its Application in the 21st Century

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 Mitakshara and Dayabhaga are the two principal schools of Hindu Law. These schools are based on different interpretations of the Yanjyavalkya Smriti. There are a few differences regarding adoption and inheritance while interpreting the Yajnyavalkya Smriti, which have occurred due to the prevalence of diverse cultures and traditions in different parts of India.  Smritis consist of the words of rishis who had drafted the provisions of the Hindu Law[1]. But these rishis were not the actual lawmakers[2] because they had drafted these Smritis based only on the divine revelations which they had received. These divine revelations are compiled in the Shrutis. Shrutis consist of the Vedas[3] and ancient Hindu law is rooted in these Vedas. Shrutis are the texts that constitute actual utterings and wordings of the revelations made by the divine powers.

MITAKSHARA SCHOOL OF HINDU LAW:

As stated earlier, Mitakshara is a commentary on Yajnyavalkya Smriti[4] written by Vijnyaneshwar. Yajnyavalkya divides it into three sections:

1.     Achara: Proper conduct

2.     Vyavahara: Civil Laws

3.     Prasyaschitta: Religious observance and redemption

The vyavahara section contains forensic laws and their practices, as well as rules for private acts and disputes. This section is the primary concern of this article. Mitakshara prevails all over India, except in Bengal, some part of Assam, Bihar and Orissa. Considering the huge territory of India and the varied customs and traditions, there further appeared subdivisions in the school of Mitakshara:

      I.          Benaras School

    II.          Mithila School

  III.          Bombay School (also known as Maharashtra School/Mayukha School/School of Western India)

  IV.          Dravida school (also known as Madras School)

The application of these schools is region-wise. All of these schools have different customs and traditions, and they have their own set of authorities only for the purpose of recognising these customs and traditions; otherwise they still consider Mitakshara as their paramount authority, whenever and wherever any confusion arises.

Some of these schools have remained static by adopting the literal meaning of the parental text, while others have modernised the provisions in accordance with the requirements of the society and its prevailing ethos. As a result, schools such as Benaras School are often considered as orthodox schools, while Bombay School is considered as the most liberal school.

THE COPARCENARY SYSTEM:

In addition to adoption, Mitakshara also discusses inheritance laws. While doing so, it advocates ‘The Coparcenary system’. The word ‘Coparcener’ is a blending of two words- ‘co’ and ‘parcener’. ‘Co’ means together while ‘parcener’ has a Latin origin, meaning a person sharing inherited property. Collectively thus, the word ‘Coparcener’ means sharing the rights over inherited property i.e. joint heir-ship.

Under the coparcenary system, three lineal male descendants[5] from the propositus are recognised and are deemed to be eligible for acquiring the rights over inherited property. Propositus is the person who is at the top of the lineal descent. For example – A is holding the property, B is his son, C is his grandson, D is his great-grandson and E is his great-great-grandson. Here, A is a propositus, and B, C, D are consecutive lineal descendants, E can only claim the rights over inherited property when one of these lineal ascendant dies. Only a coparcener has a right to demand partition of the property.

Under the coparcenary system, there is no unity of ownership of coparcenary property with the members thereof; every member is the sole owner of his share. However, there is a unity of possession.[6] This means one member of the system cannot sell his share without partition and without the consent of the other members in the coparcenary system.[7] Mere determination of share does not bring about the final partition.

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005:

The Hindu Succession (Amendment) Act, 2005 (Hereinafter referred to as HSA, 2005) was introduced as an attempt to bridge the gap between the conservatives who wanted to retain the Mitakshara law in its literal text, and the progressives who wanted its modification with women being recognised in the line of descent under coparcenary system. The HAS, 2005 amended section 6 of the concerned Act by declaring that, the daughter of a coparcener in a joint family governed by the Mitakshara law shall, on and from the date of commencement of the Hindu Succession Act, 2005 (September 9, 2005), by birth become a coparcener in her own right and, in the same manner as a son. This Act also recognised the daughter’s rights over dwelling house, irrespective of whether she is unmarried, deserted or widowed.[8]

Later on, various High Courts and their judgments highlighted different interpretations of the said Act and posed certain questions:

1.     Whether the Act is of retrospective nature, i.e. can daughters born before 2005, claim the rights over coparcenary property on the basis of the term “by birth”?

2.     Whether the property can be claimed by a daughter if her father is not alive as on September 9, 2005?

3.     Can a daughter reclaim her rights in accordance with the said Act, even if the partition has already happened?

While the first question remains partially unanswered, with respect to the second and the third question, various High Courts had earlier ruled that if the father is not alive as on September 9, 2005, a daughter cannot claim the rights over inherited property. This interpretation was also upheld by the Supreme Court and subsequently it became the law of the land. It was ruled in Prakash v Phulvati[9] that fathers must be alive for daughters to claim succession rights.

 Now even though the dust over the issue was very much settled, it was still important to analyse what caused the Supreme Court to modify its previous verdict and reinterpret the words from the Act, in the recent judgment of Vineeta Sharma v. Rakesh Sharma (2020). In the aforesaid judgment[10], Supreme Court ruled that, if the Act itself says ‘by birth’ then there is no need for answering the question of whether the father is alive or not on the date of commencement of the Act. By depriving daughters of their rights over ancestral property, we are indulging into gender discrimination and going against the constitutionally envisaged goal of gender justice.

The Court also quoted a common saying-

 “A son is a son until he gets a wife. A daughter is a daughter throughout her life”[11].

Therefore, finally the Court overruled its previous judgment in Prakash v Phulwati[12] and highlighted that it has to be taken in a literal sense that daughters are to be treated as a coparcener in the same manner as that of sons.

Now answering the first and third question, the Supreme Court ruled that the Act cannot be said to be of retrospective nature, because by inserting the clause stating that daughters cannot claim their rights over inherited property where the partition which got crystallised before December 20, 2004, it clearly implies that the legislature did not intend to disturb the rights that have already been conferred and crystallised. But yes, the Act would apply in situations where there is no partition, even though it is before the December 20, 2004.

Thus, in a sense it is more retroactive than retrospective, as it does not disturb the partitions and rights already conferred in accordance with the pre-existing laws. The Court also made a notable point where it defined what partition exactly would be. Mere preliminary decree which determines shares does not bring about the final partition. For, while the final decree is pending, the shares themselves are liable to be changed on account of the intervening events. Therefore, unless the partition of the property is affected by metes and bounds, daughters cannot be deprived of the benefits conferred by this Act. [13]

Even though the Courts and the Act have made it a point to recognise the rights of daughter from a constitutional point of view, and tried to terminate the gender discrimination, it would be curious to find out, as to what extent the verdict and the amended Act actually reflects its practical application, keeping in mind the patriarchal ethos of the Indian society.

            By

Harshal Kshirsagar

III B.A. LL.B.

ILS Law College, Pune.

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[1] Smritis are also referred to as ‘institutes’ or ‘codes’.

[2] Smritiskars claim themselves to be the exponents of the divine precepts enshrined in the Shrutis.

[3] Shrutis consists of four Vedas: Rugveda, Yajurveda, Samveda, Atharvaveda and each one is divided into three parts i.e. Sanhita which means praise of god, Brahmana meaning duties and means of performing duties and at last, Upanishad which means rationale behind those duties.

[4] Yajnyavalkya is one of the 32 Smritis in Hindu Law. Padma Puran, written by Maharishi Vyas, mentions 36 Smritis- 18 Major Smritis and 18 Minor Smritis. Each Smriti is named after its author. Manu, Atri, Vishnu, Harita, Yajnyavalkya, Angira, Yama, Apasthamba, Samvrata, Katyayan, Brihaspati, Parashara, Vyasa, Sankha, Likhita, Daksha, Gotama, Satapata, Vashishtha are the 18 major Smritis.

[5] Sunil Kumar and Anr. v. Ram Prakash and Ors., (1988) 2 SCC 77.

[6] State of Maharashtra v Narayanrao Shamrao Deshmukh and Ors., (1985) 2 SCC 32.

[7] Controller of Estate Duty v. Alladi Kuppuswamy, (1977) 3 SCC 385.

It is settled proposition of Mitakshara law that without partition, nor joint partition nor specific property can be disrupted by any alienation of coparcener. In Benaras School, there is a prohibition on the sale of property without the consent of other coparceners.

[8] S. 23 of Hindu Succession (Amendment) Act, 2005.

[9] Prakash v. Phulvati, Civil Appeal No. 7217 of 2013.

[10] Vineeta Sharma v. Rakesh Sharma and Ors., Diary No. 32601 of 2018.

[11] Savita Samvedi (Ms) and Anr. v. Union of India and Ors., 1996 (2) SCC 380, para 50.

[12] Supra at 5.

[13] S. Sai Reddy v. S. Narayana Reddy and Ors, (1991) 3 SCC 647.