The Law of Inheritance in Bengal

The law of inheritance and successions in India finds its statutory roots in the Hindu Succession Act, 1956. The pattern of succession as provided under it is for in testate inheritance i.e. when a death occurs without any will then the property has to be distributed as per the guidelines of the law. In India this pattern is not uniform and differs from one religion to another and from one region to another as per the customs and guidelines set by the respective religious scriptures and teachings. However, this research paper shall, as suggested by the title itself, restrict itself to the region of Bengal (including Orissa and parts of Assam) and shall cover the Hindus residing therein. It shall cover only the Dayabhaga system, glancing at the Mitakshara system only to draw a comparison and better the reader’s understanding.

Since time immemorial the framing of all property laws have been exclusively for the benefit of man, and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws [1] . As the country is vast and communications and social interactions in the past were difficult, it led to diversity in the law. Consequently, in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations.

The Evolution of the Dayabhaga School

Both schools of medieval Hindu law – the Dayabhaga and the Mitakshara are based on the texts of the learned sage Manu. They are merely different interpretations of the same treatise. But it must be noted that the approach adopted by both schools is radically different.

The difference really stems from the interpretation of who is a sapinda. Both schools concur on the principle that property should be inherited by the sapindas, but the definition of the word itself given by the schools is different. According to the Mitakshara system it means ‘one that has the same body’ which can be construed as a close relative who is a descendent of a common ancestor. But such descendence should always be from the male line. [2] Thus, in this system only agnates have the right to inherit. There distance in relationship is not a factor determining inheritance but their sex does play an important role. In this system, for example, property of the deceased may devolve upon a distant male cousin but not to his own daughter’s son.

Such a system was not agreeable with Jimutvahana, the founder of the Bengal school – the Dayabhaga sytem. According to him, sapinda is any relative who can offer ‘pindas’, the balls of rice offered during the funeral of the deceased. [3] This would include cognates, the women in the family as well, allowing them to freely inherit property.

The Mitakshara system founded by Vijaneswara, following a rigid patriarchal system based such a theory on the principle established by the school of the “Black Yajurveda” which quoted “Nirindriya hyadayadah strio nritam” as the reason backing it. This can be translated as “women are generally incompetent and do not have the power to inherit” [4] Jimutvahana did not agree with such reasoning and later Jaimini, the great scholar on Hindu jurisprudence too backed him stating that certain Vedic texts explicitly provide for women owning and possessing wealth.

Vijaneswara in his later treaties propounds a theory of female ownership (but this is quite different from that propounded by the Bengal school). He remarks that women do have a title over property but only through their husband or their son, not otherwise. Women under Mitakshara law have no direct right to ownership of property or inheritance.

Basic Differences – Dayabhaga & Mitakshara Schools

As stated earlier, Classified, under the classification contained in Shastric laws all Hindus can be identified as being members of a particular school of legal philosophy. The chief ones being the Dayabhaga school of law in and around Bengal, the Mitakshara school located mainly in northern India, the Bombay school dominant in Maharashtra, and the Nambudri and Marumakkattayam schools which govern southern India. However, the scope of this paper is restricted to the Dayabhaga school and for the sake of better understanding, the paper shall also delve upon certain provisions of the Mitakshara school in order to compare the two.

Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparceners, based on birth in the family. No female is a member of the coparcener in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.

The Mitakshara law also recognizes inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law. Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations as being entitled to inherit namely – widow, daughter, mother paternal grandmother, and paternal great-grand mother. (a) The Madras sub-school recognized the heritable capacity of a larger number of females heirs that is of the son’s daughter, daughter’s daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance (Amendment) Act,1929.(b) The son’s daughter and the daughter’s daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to women, recognized a number of other female heirs, including a half sister, father’s sister and women married into the family such as stepmother, son’s widow, brother’s widow and also many other females classified as bandhus. [5]

The Dayabhaga School neither accords a right by birth nor by survivorship though a joint family and joint property is recognized. It lays down only one mode of succession and the same rules of inheritance apply whether the family is divided or undivided and whether the property is ancestral or self-acquired. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father’s lifetime. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers. Since this ownership arises only on the extinction of the father’s ownership none of them can compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him. Since females could be coparceners, they could also act as kartas, and manage the property on behalf of the other members in the Dayabhaga School. [6]

One of the important differences between the two schools is that under the Dayabhaga, the father is regarded as the absolute owner of his property whether it is self-acquired or inherited from his ancestors. Mitakshara law draws a distinction between ancestral property (referred to as joint family property or coparcenary property) and separate (e.g. property inherited from mother) and self-acquired properties. In the case of ancestral properties, a son has a right to that property equal to that of his father by the very fact of his birth. The term son includes paternal grandsons and paternal great-grandsons who are referred to as coparceners. An important category of ancestral property is property inherited from one’s father, paternal grandfather and paternal great-grand father. The other categories are: i) Share obtained at a partition (ii) accretions to joint properties and self-acquisitions thrown into common stock. The point that deserves attention is that under traditional Hindu law, a daughter is not entitled to property rights by birth in such ancestral properties. In the case of separate or self-acquired property, the father is an absolute owner under the Mitakshara law.

Features of the Dayabhaga System

1. Widow’s Right to Inherit

Jimutvahana, combats the theory propounded by the Mitakshara school and criticizes it over the exclusion of the deceased brother who was either joint or reunited with his other brothers. He maintains that such a theory, would be in conflict with the texts of Vrihaspati [7] . Jimutvahana, whilst protecting the right of the widow to hold property, states that whether the deceased be divided or undivided, his next heir is his widow in the case of him not being succeeded by a male issue.

Jimutvahana bases his theory on Vrihaspati who states, “Among brothers, who become reunited…there is no right of seniority, if partition be again made. Should any one of them die, or in any manner depart, his portion is not lost but devolves upon his uterine brother. His sister too entitled to take a share of it.” [8] He thus supports the right of the sister to inherent from coparcenary as well.

The Dayabhaga school also contests the fundamental principle of the Mitakshara system that several undivided brothers are like joint tenants, each having an unascertained interest in the whole of the joint property, so that when on the death of one of the brothers, the joint property belongs exclusively to the survivors, since the ownership of the other brothers is not divested. Jimutvahana holds that several coparcenars are like tenants in common, each having a right to the undivided portion, so that on the death of one, there is no right of survivorship to intercept his widow’s right of succession under the text of Yajnavalkya. [9]

To sum on this issue, in the Mitakshara system, the widow is entitled to inherit her deceased husband’s property only when he dies leaving behind no male issue and he dies separated from his brothers. Under the Dayabhaga system, the widow’s inheritance is not determined by whether he died separated or united.

Thus, by granting the widow the right to inherit her deceased husband’s property when he leaves behind no male issue, the Dayabhaga school dilutes the heavily patriarchal system prevalent in India at the time.

2. Self Acquired Property

According to the Dayabhaga, the father is given absolute rights over his self-acquired property and sons have no inherent interest in it. Therefore, the father possesses the right to dispose of his self acquired property in a manner he chooses, without involving his sons. He may also decide to divide it amongst his sons at will in a proportion determined by him. He allows its division by the father at his will even when his wife in the child-bearing age, and it is therefore possible for more sons to be born because the sons already born, and those yet to be born have no interest in the father’s self acquired wealth, atleast during his lifetime. [10]

Running counter to this, the Mitakshara system lays out that the sons do have an interst since birth in their father’s self acquired property, be it movable or immovable. Jimutvahana on the other hand does not recognize the son’s vested right in the father’s estate, and hence he cannot grant to the son the right to separate from the father at will. Whilst interpreting the Yajnavlykas, Jimutvahana has stated that the sons have an equal right in the ancestral estate along with their fathers. According to him, this applies to the situation where an undivided brother dies eaving behind him a son and when the deceased’s brothers divide, his son steps into the father’s shoes and takes the father’s share. Thus while a son does not possess an equal right with his father during the latter’s life time he inherits his father’s share when his uncles divide. Until then the property remains intact.

*Partition During Mother’s Lifetime

The Dayabhaga borrows from the treatise of Maskari in this field of inheritance. Maskari, commentating on the Gautama dharma sutra ‘urddhvam pituh putra rkhtam vibhajeran’, said that the expression “pituh” means both parents – father and mother because this word is an “ekasesa dvandva” and therefore the sutra means that sons can divide ancestral property only after the death of both – father and mother. [11] This provision has been mentioned in brief earlier in the previous chapter of this paper in “the evolution of the Dayabhaga school” and more light is shed on the same in this section.

The Dayabhaga borrowing from this interpretation of Maskari, lays down that after the death of the father the sons have no independent power to partition father’s estate throughout the lifetime of the mother, yet the son is given a position of eminence and the widow’s seemingly absolute right in the husband’s property is circumscribed by the rights of the son, and it is said that though the sons acquire ownership in father’s property immediately upon his death, the actual position is postponed until the death of the mother. However, the sons may divide the property with the mother’s consent. [12]

Jimutvahana further lays down that when a person leaves behind more than one widow, each having an equal number of sons, the widows may partition the property amongst themselves and though he says that this partition is as per the widows and not their sons, yet it its submitted that the reference to equal number of sons signifies that the mother’s right to partition is encroached by the sons, although in a subtle manner, and that each widow is allowed to take an equal share only to pass-on to her sons upon her death [13] .

*Wife’ Share when the Husband Divides in his Lifetime

In this regard, both schools – the Dayabhaga and the Mitakshara concur and state, on the basis of the Yajnavalkas, that when a person divides his property whilst he is alive, he must treat both – his son as well as his wife alike. [14] He must give his wife an equal share as that given to his son. But if the wife has received her stridhan, she would only be entitled to half the share of the son.

*Share of the Unmarried Sister

Smriti rules dictate that the unmarried sister should get a on-fourth share in the family property. But Jimutvahana relaxes this rule to such an extent that it does not confer upon her any vested right to get that share. According to him what the law stipulates is that the brothers are under an obligation to arrange her wedding and cater to other “necessities”. [15] What is “necessary” is not easily quantifiable and this may vary from family to family.