Mitakshara and Dayabhaga
- The Mitakshara is a vivrti (legal commentary) on the Yajnavalkya Smriti best known for its theory of 'inheritance by birth'.
- The Dayabhaga is a Hindu law treatise written by Jirnutavahana (A Bengal Jurist of 12th Century) which primarily focuses on inheritance procedure. (Dayabhaga deals with the laws of inheritance based on Yajnavalkya Smriti/ Manu Smriti).
- The Mitakshara, along with the Dayabhaga, became an influential source for British Courts in India. The Mitakshara was influential throughout the majority of India, except in Bengal and Assam, where the Dayabhaga prevailed as an authority for law (In Bengal (and post-independence West Bengal and Tripura) and Assam, Dayabhag,-a was the principal guide for laws on inheritance till the enactment of the Hindu Succession Act; 1956). The British were interested in administering the law in India, but they wanted to administer the law that already existed to the people. Thus, they searched for a text that could be used to help solve disputes among the people of India in manners which were already customary in the sub-continent. These disputes often involved property rights or inheritance issues.
- Thus, the first translation of the Mitakshara was by 'Henry Thomas Colebrooke' (a Calcutta Supreme Court judge) in 1810 (because there was an immediate need in the British courts for the 'law' regarding inheritance that already existed among the people of India), and it was only this section of the text that gave the British insight on how to deal with inheritance issues. At that point, the Mitaksara held the status of a legislative text because it was used as a direct resource regarding inheritance in the courts of law in most of the India. Even he translated the Dayabhaga in 1810 through the use of manuscripts and Pandits.
Central differences between the Dayabhaga and the Mitaksara
The central difference between the texts is based upon when one becomes the owner of property. The Dayabhaga does not give the sons a right to their father's ancestral property until after his death, unlike Mitakshara, which gives the sons the right to ancestral property upon their birth.
Sons Inheritance
The son has no right to the father's ances- tral property until after his death, or the father's ownership becomes extinct through other means, such as being excluded from the caste or becoming ascetic_ This is in direct contrast to the Mitaksara, which gives the sons a claiin upon birth.
The Rights of the Widow
The widow succeeds the father's property rights on his death, even in cases where he held property jointly with his brother.
Ancestral Property
Dayabhaga states that the father is.the sole ruler of all property, both ancestral and personal. Unlike the Mitaksara, ancestral property is not seen as communal; therefore the father does not require the consent of his sons to act over the ancestral property_ The essential difference between the 'Dayabhaga' and the Mitaksara family is that the 'Dayabhaga' sees no difference between the father's total control over ancestral and personal property.
Personal Property
The father has the right to do as he wishes with his personal property in both the Mitaksara and the Dayabhaga.
Inheritance/ Succession
After the father's death, the sons will succeed his portion of the ancestral property. This can be done during the father's lifetime, but only if the father chooses to do so. The property is not communally owned by the family, as it is in the Mitaksara. Each son has the ability to do what he wishes with his portion of the property after his father's death.
