Eternal India Encyclopedia

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Ancient Concepts, Sciences & Systems

of the 12th century. His theory on the law of inheritance and partition which is essentially different from that of Mitakshara came to be accepted in Bengal and Assam and secured a command- ing position. On the provisions of the smritis governing the law of inheritance, Jimuthavahana took a view diametrically opposite to that of Vignaneswara. While Vignaneswara (in his Mitakshara) took the view that the sons acquire the right to the ancestral property by birth, Jimuthavahana in his Dayabhaga took the view that sons acquire the right to the property of their father, whether ancestral or self-acquired, only after the father's death. Mi- takshara was accepted as law in the whole of India whereas Dayabhaga was accepted as law only in Bengal and Assam. Vyavahara Matrika of Jimutavahana This is another important work of Jimutavahana. It deals with the qualification and appointment of Judges and also the whole of the procedural law. Several details about the life and work of Jimutavahana have been furnished by P.V. Kane. Dayatatva of Raghunandana Among other works on the Dayabhaga system, Dayatatva of Raghunandana occupies a predominant position. This work also deals with the law of inheritance and makes an authoritative and clear exposition of the Dayabhaga system. This has been trans- lated by Golap Chandra Sarkar Sastri. This work is held in high esteem, next only to that of Jimutavahana, and relied on by the High Courts. Dayakrama Sangraha of Srikrishna Tarkalandar This is another work of considerable importance on the law of inheritance as propounded by the Dayabhaga system. Courts have derive'd great support from this work in resolving complicated questions relating to the law of inheritance. This is one more commentary on the Dayabhaga system. This work is also popularly known as Cole Brooke's Digest. This work is taken as an authority, next only to the three works mentioned earlier in that order, and placed higher than any other commentary on the Dayabhaga law. Dipakalika of Shulapani This is a commentary on Yajnavalkya Smriti. This work is known for its brevity and good style. This has been relied on in respect of matters on which the other works are silent or where there is no conflict with Mitakshara. Shulapani was regarded as an eminent jurist, next only to Jimutavahana. 1. 2. 3. 4. Vivada Bhangarnava of Jagannatha Tarkapanchanana 5.

Growth of law through commentaries Though the Vedas were considered as the source of Dharma (law), the Smritis constituted the codified substantive civil and criminal law and procedural law of the ancient Indian legal system. But law could not remain static. Some scope was left for this purpose by the provisions of the Smritis which said that apart from the Shruti and the Smritis, the good customs and what was agree- able to men of virtuous conduct were also the sources of law. This gave scope for developing usages and customs by the people which ultimately got assimilated into the legal system and modified the earlier laws on certain topics. The later smriti writers, who were sages of great eminence like their predecessors, did modify the provisions of the earlier Smritis and made such modifications as part of the Smriti law. At some point of time the long line of Smriti writers came to an end. Thereafter the law had to grow and modify only through other works, such as commentaries and digests writ- ten by eminent jurists. This was practically the only device for the development of law. The reasons are obvious. The Smritis contin- ued to be the basic law of the Indian legal system. The king (State) was not invested with any legislative power. Therefore the Smritis which held the sacred and authoritative position could not be amended by the State. In such a situation, owing to the compelling circumstances of changing society, jurists resorted to modifying and adopting the law through the device of interpretation. The deep knowledge of the Vedas and Dharmasastras of the commentators and the respect commanded by them in the society by their virtuous conduct and the forceful interpretation they gave to the provisions of the Smritis in the light of the needs of the changing society, made their commentaries acceptable to the people and enforceable by the king. Asahaya who wrote the commentary on Naradasmriti was the pioneer in this direction. Thereafter a large number of commenta- tors took up such work which brought into existence the most merited commentaries which have been dwelt upon earlier. The last of such commentaries _ was Viramitrodaya of Mitra Misra. These commentators did not consider themselves bound by the orthodox views and were free from prejudices. They struck a balance be- tween the age-old constraints of the orthodox view and the growing needs of modern progressive society. In the absence of legislative institutions to amend the laws and an established judicial system whose decisions were binding as judicial precedents, the work of amending or modifying the laws was pre-eminently performed by the great commentators whose views came to be accepted as authoritative and they acquired an important place in the Indian legal history. Vijnaneswara and Jimutavahana are the most eminent in the galaxy of commentators. These commentators subordinated the text of the smritis wherever such a course was justified by the necessities of the times as also the usages and customs, and gave to the usages and customs over- riding effect on the text of the Smritis. The law as laid down by the commentators was recognised by the Privy Council which declared that the provisions contained in the Smritis were ancient and there- fore it would be wrong to go by the letter of the smritis, and the views of commentators should be accepted as representing the law in force. The Privy Council held that the courts should not look into the earliest authorities to find out an answer to a disputed question of law but they should see, in a particular area, which of the view has received sanction by usage. The commentators reflected the law as emerged from the age-old traditions as well as local usages while interpreting the law. Therefore, the Privy Council ruled that

Specialised works on the law of adoption Dattaka Mimansa and Dattaka Chandrika

Dattaka Mimamsa is a treatise on the law of adoption written by Nanda Pandita, and Dattaka Chandrika is by Devanna Bhatta, author of Smritichandrika. Both these works specially deal with the law of adoption and are regarded as authoritative works on the subject throughout India, Dattaka Mimamsa is preferred in the Mithila and Banares sub-divisions and Dattaka Chandrika is pre- ferred in Bengal.