Succession Under Classical Hindu Law: A Comparative Study Between Dayabhaga And Mitakshara Schools, And The Significance Of “The Hindu Will Act, 1870” And “Hindu Women’s Right To Property Act, 1937
Sachin Drall, Jindal Global Law School
Introduction
This paper is aimed to provide an extensive emphasis on succession under classical Hindu-Law. Initially, to have a precise understanding, it is important to take into consideration the historical facts in context with the Hindu-law. It has been time and again stated that Hindu Dharma is therefore so ancient that it is difficult to put it into a time frame. As in context with time, it is suggested that there is the existence of the time god itself said to be as “ Lord Mahakal’. Who has the powers to defeat time and is believed to be the incarnation of the ‘Lord Shiva’. However, in recent times, Hindu law as administered by the courts is found in ‘Shrutis’ (Vedas), ‘Smritis’ (the memorized word), the ‘Sadachara’, commentaries, and digests, customs, judicial decision, and legislative enactments. The hymns of the Veda’s; Rigveda, Yajurveda, Samaveda, and lastly Atharvaveda reflect the social conditions of Hindus but provides us sui generis stand in comparison to other religions with the simple fact; them not being a pastoral or nomadic people but at an advanced stage of civilization1. Hindu society during the Vedic age was considered to be an aggregation of patriarchal families2 with patriarch being the ruler and having unparalleled authority as rules laid down by patriarch for the management of the family estate were considered to be something like the command of the sovereign, which eventually went on to portray the image of the Hindus as individuals who keep women on the lowest pedestrian of social hierarchy. However, I do not comply with these views for the simple reason that even in ‘Lord Brahma’s cabinet the utmost priority was given to the female members with ‘Lord Durga’ being the head of the defense, ‘lord Lakshmi’ with the finance and ‘Sarasvati’ with the portfolio of education in order to further empower living beings. With this, I would also like to state that term ‘Hindu’ has defied all efforts of an appropriate or acceptable definition by jurists, judiciary and the legislature. I say this as even supreme court in 1966 attempted to explain it as acceptance of Veda’s with reverence, recognition and realization of the truth that the number of gods to be worshipped is large, is the distinguishing feature of Hindu religion3. However, after having read multiple works, I would contend that even this definition of the supreme court cannot be held accountable in order to explain the term “Hindu”, as one can be “Hindu” even after not recognizing the Veda’s or any other “Hindutva” texts. Which further endorses the idea that “Hindu” is something beyond religion and can be understood as a particular way of living life. Now, coming to the most important work in context with Succession under Hindu-law which can be found in ‘Smritis’, it is suggested in the relevant texts that the exact number of smritis is not conclusively established, as different jurists put their number differently but fundamentally in the three forms; ‘Manu-smriti’, ‘Yajnavalkya-Smriti’ and ‘Narada-Smriti’4 which are the work of sages in medieval times who were considered as reputed authorities and went on to establish their work as certain Grundnorm in regard with ‘code of conduct’ of life.
