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Reference Material for Five Years Bachelor Of NAAC ACCREDITED Affiliated to GGS IP University, New Delhi ‘A’ Grade Institute by DHE, Govt. of NCT Delhi and Approved by the Bar Council of India and NCTE Reference Material for Five Years Bachelor of Law (Hons.) Code : 035 Semester – IV DISCLAIMER : FIMT, ND has exercised due care and caution in collecting the data before publishing tis Reference Material. In spite of this ,if any omission ,inaccuracy or any other error occurs with regards to the data contained in this reference material, FIMT, ND will not be held responsible or liable. FIMT , ND will be grateful if you could point out any such error or your suggestions which will be of great help for other readers. 1 | P a g e COPYRIGHT FIMT 2020 INDEX Five Years Bachelor of Law (Hons.) Code : 035 Semester – IV .NO. SUBJECTS CODE PG.NO. 1 Family Law-II 202 4 - 57 2 Constitutional Law-II 204 58-134 3 Law of Crimes-II 206 135-176 4 Administrative 208 177-203 Law 5 Strategic 214 204-233 Management 2 | P a g e COPYRIGHT FIMT 2020 SUBJECT CODE: BBA LLB-202 SUBJECT: FAMILY LAW UNIT I 1. What are the various schools of Hindu Law? Differentiate between Mitakshara and Dayabhaga Schools? Answer INTRODUCION:- As we know that Hindu Law is two types : 1. Codified Hindu Law 2. Un-codified Hindu Law. 1. The codified Hindu law applies to all Hindu equally whereas the un-codified Hindu Law the situation is different. The application of Un-codified Hindu Law depends upon the context of different schools. As per the context of schools, Hindu Law is of two types :- 1. MITAKSHARA SCHOOL 2. DAYABHAGA SCHOOL The Mitakshara school has further the following sub schools : a) Banaras or Varanasi sub school. b) Mithila Sub school. c) Maharashtra or Mumbai sub school. d) Dravid or Madras sub school. e) Punjab sub school. SCHOOLS OF HINDU LAW 3 | P a g e COPYRIGHT FIMT 2020 Case : Collector of Madrai v/s Mottaramlingam 1868: It was said that, ― There is only one remote source among the various schools of Hindu Law, but due to different beliefs of Digest and its commentaries several schools and sub schools of Hindu Law have developed.‖There are mainly two causes to differentiate between several schools of Hindu Law :-1 .Different Customs and Usages prevail in different parts of the country.2. These different areas are governed by different Digest and Commentaries. MIKAKSHARA SCHOOL The name of this school came from the Digest Mitakshara of Vigyaneshwa. The area of its application is whole India excluding the Assam State. Case : Rohan v/s Laksman – 1976. It was held that the effect of mitakshara school is so strong that it also applies to even undescribed subjects in Bengal and Assam. Sub-Schools of Mitakshara a) Banaras Sub-School :- The area of Banaras sub school is complete North India, rural area of Punjab, south Bihar, Orissa and few parts of Madhya Pradesh. The important books concerning to this are Mitakshara of Vigyaneshwa, Veer Mitrodaa and Niranaya Sandhu of Mitr Mishra. b) Mithila sub school : Area= Tirhut and few districts of North Bihar. Books are Vivadh Chintamani and Vivadh Ratnakar. c) Maharashtra sub school:- It is also called as Mayuk sub school. Area of this sub school is Maharashtra, Saurashtra, Madhya Pradesh and few parts of Andhra Pradesh. Books are Vyavhar Mayuk, Veer Mitradaya and Nirnaya Sandhu. 4 | P a g e COPYRIGHT FIMT 2020 d) Dravid sub school :- The whole south of India, i.e. Madras, Kerala, Mysore. Books are Smriti Chandrika, Parashar Madhviya, saraswati Vilas, Vyavhar Niranaya. e) Punjab sub school :- Area of the school is Punjab, Rajasthan, Jammu-Kashmir. This sub school emphasized on Customs and Usages. Books are Digest on Yagyavalkya Smriti written by Aprak, Mitakshara & Veer Mitrodaya. DAYALBHAGA SCHOOL Its name came from the Digest Dayabhaga of Jimuthvahan. The area of its application is Bengal and Assam. The period of writing of Dayabhaga is considered to be 1090-1130 A.D. Dayabhaga is mainly on essay on partition and succession. 2. What are the difference between Mitakshara and Dayabhaga schools? Answer The above two schools has the principally differences on two subjects:- 1. INHERITANCE 2. JOINT FAMIY & COPARCENARY. 1.MITAKSHARA SCHOOL: i) :- I) Inheritance in Mitakashaara is based on relation by blood. 2. A relative by blood receives succession in property which is the basic principle of Hindu succession law. 3. Women have been excluded in succession. 4. Agnates supersedes the cognates.5.The area of its application is whole India except Assam State. The coparcenary evolves with the birth of a son. Property over which all coparceners have similar ownership. 5 | P a g e COPYRIGHT FIMT 2020 5. No coparcenary can say before partition that he is the owner of that particular property. Coparcenary has been recognised by this school. 2. DAYABHAGA SCHOOL :- i) 1. The succession of property in Dayabhaga school based on spiritual principles. 2. In this school successor of property is such person who earns maximum peace and religious profit for the soul of deceased by performing ‗Pindadaan‘ & religious rituals etc. 3. This law is liberal because few women and cognates can also receive property in succession, but after passing of Hindu Succession Act this has been ceased. 4 The coparcenary evolves after the death of the father. In Dayabhaga school the son has no right during the lifetime of the father.5. On the death of a Hindu Person his property shall devolve among his heirs on the basis of succession.6. Coparcenary has been recognised by this school. 3. Who is karta. Can minor be a karta? Answer The head of the Hindu Joint Family also called the Karta or manager of the joint family occupies a unique position unlike any other member of the family. The senior most male member of the Hindu joint family is usually the Karta or head of the family. Often Karta is called Manager of the joint family, this is when there exists a family business or if it is a trading family, there has to be a manager to take care of the proper functioning and supervision of the business. The Karta has innumerable rights and powers. He can exercise these rights in any manner he thinks fit as long as it‘s for the greater good of the family. Along with such great power he has a number of liabilities such as maintenance of family members and keeping proper accounts. The manager of the joint family is called the karta. 1. The senior most member male member of a joint Hindu family is considered as the karta of the family provided he is otherwise fit to act as such that he is not suffering form any physical or mental deficiency. 6 | P a g e COPYRIGHT FIMT 2020 2. He is not an agent or trustee of the family but as the head of the family he is the custodian or guardian of the property and affair s of the family and of the interest of the family. 3.The karta of the joint Hindu family is certainly the manager of the joint family property but undoubtedly possesses powers which the ordinary manager does not possess. The Karta , therefore, cannot be just equated with the manager of property. Minor as a karta – As regards, junior male members, as long as a senior member is present they cannot become Karta, unless all the coparceners agree to the junior member occupying managerial position. This was re-affirmed by the Narendra Kumar v.CIT. If it turns out that a minor is the only one left to be manager, he can as long as a capable guardian represents him. Section 21 of the Guardians and Wards Act, 1890 recognises the competence of minors to occupy managerial position in an undivided family. 3 Father as karta :-If the manager or the karta is the father, he has certain additional powers of alienation under the Hindu law and in exercise of those powers, he can alienate joint family property so as to bind the interests of his minor sons in such property. 4. What are the position of karta? Answer It is the duty of the karta to see that all reasonable wants of the members are satisfied. If the karta fails to fulfill his duty, the members could enforce it by legal action. An undivided Hindu family is ordinarily joint not only in estate , but also in food or worship; therefore, not only the concerns of the joint property, but whatever relates to their commensality and their religious duties and observances, must be regulated by its members or the business manager to whom they have expressly, or by implication, delegated the task of regulation. The Karta 7 | P a g e COPYRIGHT FIMT 2020 represents his joint family on all matters, whether they are religious, social or legal in character. Legal position of the Karta a. The karta can file suits or take other legal proceedings to safeguard the interest of the family and its properties and business. b. He can represent the family effectively in a proceeding even if he has not been named as such. c. Where a transaction purports to have been entered into by two or more persons described as kartas or managers of the joint family, they must all join as plaintiffss in the suit. However, it is not necessary that all members of the joint family should join in the suit. d. The manager as the head of the family has control over the income and expenditure, and he is the custodian of the surplus, if any.
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