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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

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.

Vivada Bhangarnava of Jagannatha Tarkapanchanana

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.

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.

Ancient Concepts, Sciences & Systems

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

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