SCHOOL OF EXCELLENCE IN LAW

Rights of Shareholders

NAME: ABHINEETH SARAVANAN

REG NO.: HA19005

COURSE: B.A. L.L.B. (Hons.)

YEAR: IIInd YEAR

SECTION: “A”

SUBJECT: COMPANY LAW

Abhineeth Saravanan

STUDENT SIGNATURE FACULTY SIGNATURE

1
 Table Of Contents

S.NO. TOPIC PAGE NOs.

1 Sources of Law (Summary) 3 to 4

2 Sources of Hindu Law – Traditional and Modern 4 to 9
3 Sources of Muslim Law 9 to 10
4 Secondary Sources of Muslim Law 10 to 11
5 Schools of Hindu Law 12 to 13
6 Schools of Muslim Law 13 to 15
7 Webliography 15

2
 Sources Of Law

(Summary)

The phrase “source of law” has several connotations. It may be the authority which issues rules

of conduct which are recognized by Courts as binding. In this context, ‘source of law’ means ‘the

maker of law’. It may mean the social conditions which inspires the making of law for the

governance of the conditions.

Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage and

divorce, adoption, inheritance, minority and guardianship, family matters, etc.). It is not Hindus alone

who must follow Hindu law but there are several other communities and religious denominations

that are subject to its dominion such as Jains, Buddhists, Sikhs, Brahmo-Samajists, Prarthana-

Samajists, the Virashaivas and Lingayats and the Santhals of Chhota Nagpur besides others. Similarly,

Mohammedan Law is applicable to Muslims, Christian Law is applicable to Christians and so on.

Hindus are governed by four major acts:

• The Hindu Marriage Act (1955)

• The Hindu Adoptions and Maintenance Act (1956)

• The Hindu Minority and Guardianship Act (1956)

• The Hindu Succession Act (1956)

Muslims are governed by:

• The Shariat Application Act (1937)

• The Mussalman Wakf Validating Act (1913)

• The Dissolution of Muslim Marriage Act (1939)

• The Wakf Act

• The Muslim Women (Protection of Rights on Divorce) Act (1986)

The applicable Christian Laws are:

• The Christian Marriage Act (1872)

• The Indian Divorce Act (1869)

3
 Sources of Hindu Law

The sources of Hindu law can be classified under the following types:

I. Traditional Sources

(i) The Vedas

(ii) Smriti

(iii) Digests and Commentaries and

(iv) Custom.

II. Modern Sources

(i) Justice, equity and good conscience

(ii) Precedent, and

(iii) Legislation.

The Vedas:

It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that

they are the repository of all knowledge. There are four Vedas namely, Rig Veda (containing 1028

hymns arranged in 10 mandalas in Sanskrit to be recited by the chief priest), Yajur Veda (containing

formulas to be recited by the officiating priest), Sama Veda (containing verses to be chanted by

seers) and Atharva Veda (containing a collection of spells and incantations, stories, predictions,

apotropaic charms and some speculative hymns).

Smriti:

The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis

contain those portions of the Shrutis which the sages forgot in their original form and the idea

whereby they wrote in their own language with the help of their memory. Thus, the basis of the

4
Smritis is Shrutis but they are human works.

There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is

almost the same. The difference is that the Dharmasutras are written in prose, in short maxims

(Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find

Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is

used to denote the poetical Dharmashastras.

The number of Smriti writers is almost impossible to determine but some of the noted Smriti

writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishad

Gautama, Shatatapa, Vasishtha, etc.

The rules laid down in Smritis can be divided into three categories viz. Achar (relating to morality),

Vyavahar (signifying procedural and substantive rules which the King or the State applied for

settling disputes in the adjudication of justice) and Prayaschit (signifying the penal provision for

commission of a wrong).s) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana,

Brihaspati, Parashar, Vyas, Shankh, Daksha,

Digests and Commentaries:

Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand

years from 7th century to 1800 A.D. In the first part of the period most of the commentaries were

written on the Smritis but in the later period the works were in the nature of digests containing a

synthesis of the various Smritis and explaining and reconciling the various contradictions.

The evolution of the different schools of Hindu law has been possible on account of the different

commentaries that were written by various authorities. The original source of Hindu law was the

same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the

other school for different reasons. The Dayabhaga and Mitakshara are the two major schools of

Hindu law. The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of

Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries

5
written by Vijnaneswar on the Code of Yajnavalkya.

Custom:

Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’) is

regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule

which in a particular family or in a particular class or district has from long usage obtained the

force of law.

Custom is a principal source and its position is next to the Shrutis and Smritis but usage of custom

prevails over the Smritis. It is superior to written law. There are certain characteristics which need

to be fulfilled for declaring custom to be a valid one. They are:-

(i) The custom must be ancient. The particular usage must have been practised for a long time and

accepted by common consent as a governing rule of a particular society.

(ii) The custom must be certain and should be free from any sort of ambiguity. It must also be free

from technicalities.

(iii) The custom must be reasonable and not against any existing law. It must not be immoral or

against any public policy and

(iv) The custom must have been continuously and uniformly followed for a long time.

Indian Courts recognize three types of customs:

Local Custom

These are the customs or practises that are binding on people belonging to the Hindu

community of a particular geographical area. Thus the major part of that particular place’s

6
 culture.

Family Custom

Family Custom can be defined as family tradition or family culture, which they are

following from a long time which was given by their ancestors long back. It can also be

stated as the environment in which a person is born and brought up by their parents and

ancestors.

Class or Caste Custom

These are the customs for a particular caste or sector or class of people such as traders,

agriculture , businesses etc. Every caste or class has different traditions to be followed

which they have been following for a long time which can be named as class or caste

custom.

Eg. There is a custom in families of ancient India that the eldest male member of the family

shall inherit the estates.

Modern Sources of Hindu Law:

The following are the modern sources of Hindu law:

Equity, Justice, and Good conscience:

Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True

justice can only be delivered through equity and good conscience. In a situation where no rule is

given, a sense of 'reasonableness' must prevail.

Occasionally it might happen that a dispute comes before a Court which cannot be settled by the

application of any existing rule in any of the sources available. Such a situation may be rare but it is

7
possible because not every kind of fact situation which arises can have a corresponding law

governing it.

The Courts cannot refuse to settle the dispute in the absence of law and they are under an obligation

to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms

and standards of fair play and propriety.

In terminology, this is known as principles of justice, equity and good conscience. They may also be

termed as Natural law. This principle in our country has enjoyed the status of a source of law since

the 18th century when the British administration made it clear that in the absence of a rule, the above

principle shall be applied.

According to Gautama, in such a situation, the decision should be given that is acceptable to at least

ten people who are knowledgeable in shastras. Yagyavalkya has said that wherever there are

conflicting rules, the decision must be based on 'Nyaya'. This principle has been followed by the

Privy Council while deciding cases.

Precedent:

The doctrine of stare decisis started in India from the British rule. All cases are now recorded and

new cases are decided based on existing case laws.

After the establishment of British rule, the hierarchy of Courts was established. The doctrine of

precedent based on the principle of treating like cases alike was established. Today, the judgment of

SC is binding on all courts across India and the judgment of HC is binding on all courts in that state,

except where they have been modified or altered by the Supreme Court whose decisions are binding

on all the Courts except for itself.

Legislation:

Legislations are Acts of Parliament which have been playing a profound role in the formation of

Hindu law. After India achieved independence, some important aspects of Hindu Law have been

codified.

Sources Of Muslim Law

8
Islam is one of the oldest and most followed religions in the world. The religion entered India with

the Delhi sultanate and remained intact. Today India is a secular country with more than 15% of the

population being Muslims who regulate themselves according to their personal laws.

1) The Quran
The Quran, which all Muslims consider to be their holy book, contains direct revelations of God
through Prophet Mohammed. It is due to this reason that it is the foundation of all Islamic laws. All
tenets, teachings, principles, and practices of Islam originate from the Quran.
It contains verses of religious nature as well as teachings regulating human conduct. Due to its

stature as Islam’s holy book, it is the final authority on Muslim law.

2) Sunna of Hadis
Sunna basically translates to ‘path’ and means the practices, traditions, and precedents of Prophet

Mohammed. Whenever the Quran did not explain something, the Prophet’s actions and words

became the authority.

This is because people believe that even his sayings and actions derive inspiration from God. These

precedents of the Prophet are Hadis and their legal deductions are Sunna.

3) Ijma
After Prophet Mohammed’s demise, there was a consensus in the Muslim world that opinions of

religious jurists will prevail. In other words, the Mujtahids (jurists with knowledge of Islam) will

interpret the Quran, Sunna, and Hadis.

The common opinions of the jurists on aspects that the Quran did not explain became Ijma. This

source of law is very expansive and covers many topics. In fact, it gets almost as much importance

as the Quran and the Sunnah themselves.

4) Qiya

The term ‘Qiya’ basically means an analogical deduction from the existing sources. Whenever the

other sources do not explain something, Qiya helps in deducting interpretations that seem to be the

most obvious.

9
Qiya, however, can only explain or interpret the law but it cannot change the law or its essence.

This source of Muslim personal law ranks below other sources because of its deductive nature.

Secondary Sources of Muslim Law

Apart from the primary sources we saw above, the following secondary sources also govern

Muslim law to a limited extent:

1) Legislation
Although Muslim law in India is uncodified, the Parliament has made some laws to regulate some

Islamic practices. For example, the Muslim Personal Law (Shariat) Application Act, 1937 governs

marriage, succession, and inheritance. The Dissolution of Muslim Marriages Act, 1939 is another

law regulating certain divorce cases amongst Muslims.

2) Judicial decisions
Courts in India have at several instances interpreted Muslim law in many cases. All these

interpretations generally rely on primary sources, legislation and opinions of jurists. Courts have

settled many important legal anomalies using judicial interpretations.

3) Customs
Customs are basically practices that people follow continuously for a long period of time. In fact,

they follow them for so long that they obtain the status of law in some cases. Muslim law contains

various customs regulating practices of people.

4) Legal Fiction

You should keep in mind that it is based upon the convention that “old law remains ostensibly

unaltered, while in reality it has undergone changes and modifications.” It can be illustrated as

follows: The inhabitants of Bukhara had been accustomed to long term leases of land. But, as the

Hanafi school did not approve long lease contracts whereby the orchard was sold and the vendor

retained the right to redeem it. This form of sale was obviously a legal fiction to defeat the

prohibition of long lease contracts. This source is approved only by Hanafis and a Section of Shafis

and no others.

10
5) Precedent

Precedent means a previous instance or case which is, or may be taken as an example or rule or

subsequent cases, or by which some similar act or circumstances may be supported or justified. The

doctrine has never been a part of Muslim Law. The opinions of the jurists called Futawa, have great

persuasive force, yet the Kazi was not bound to follow Futawa, or if he thought it fit in his

judgment, he could ignore it and render an independent judgment. But the common law doctrine of

precedent became a part of Muslim Law during British period. Under this modern theory of

judicial decisions of the High Courts attain a position of authority in respect of all branches of law

and Muslim Law is no exception. The civil courts at various levels rely upon the decisions of the

Higher Courts for the ascertainment of the provisions of Muslim Law judicial precedent is thus and

important source of Muslim Law in India.

Schools of Hindu Law

There are two main schools of Hindu Law, the Mitakshara and the Dayabhaga. The Mitakshara

(literally meaning “a concise work”) is a running commentary on the code of Yajnavalkya. It has

been written by an eleventh century jurist by the name of Vijnaneshwar, and prevails in all parts of

India, except in Bengal.

The Dayabhaga School, which is followed mainly in Bengal, is not a commentary on any particular

code, but is a digest of all the codes. It has been written by Jimutavahana, who lived sometime in

the twelfth century. It may also be noted that the Mitakshara is the orthodox school, whereas the

Dayabhaga (or the Bengal school, as it is sometimes called) is the reformist school of Hindu Law.

It may be noted that the Dayabhaga is not divided into any sub- schools. However, the Mitakshara

is subdivided into four schools prevailing in different parts of India. These different schools have

the same fundamental principles, but differ in matters of details, especially with reference to the

topics of adoption and inheritance.

11
These four Mitakshara sub-schools are as follows:

(i) The Banaras School, which prevails in northern and northwestern India;

(ii) The Mithila School, which has most of its followers in Bihar;

(iii) The Dravida or Madras School, which prevails in southern India; and

(iv) The Maharashtra or Bombay School, which prevails in western India.

The Mitakshara and the Dayabhaga Schools differed on important issues as regards the rules of

inheritance. However, this branch of the law is now codified by the Hindu Succession Act, 1956,

which has dissolved the differences between the two.

The main divergence between the two in matters connected with the joint family system has now

been diluted further after the 2005 Amendment of the Hindu Succession Act, which has abolished

the gender inequality which existed prior to the said Amendment,

Although it is the Dayabhaga School that prevails in Bengal, the Mitakshara is also regarded there

as being a very high authority on all questions in respect whereof there is no express conflict

between the two schools.

Schools of Muslim Law

Islam is pre-eminently, democratic and republic one, and the peoples religion par excellence.

Though great freedom of opinion is allowed, but it should be noted that in Islam all institutions like

political, legal and social etc. are guided by divine law and their freedom is within the bounds of

Allah’s Commands. The basis on which all Schools of Islamic jurisprudence developed their

doctrines is the same and it is only in matters of secondary nature, they differ from each other.

These differences are due to their various methods of interpretation of the Holy Quran and the

Sunna, the fundamental sources of Islamic law. All Schools accepted the superiority of these

fundamental sources and based their system on them and with their own way of understanding and

interpreting them. Thus, they are the stream of one ocean that is Sharia and their aim is to guide the

people towards understanding of Islam and in following the right path and thereby to obey Allah’s

Commands in which lies his, the welfare of individual, as well as the society in general.

12
1. Hanafi School or Kufah School

(i) Less reliance on tradition unless their authority is beyond doubt. (Abu Hanifa was

stricter than others in lifting the traditions.)

(ii) Greater reliance on Qiyas;

(iii) A little extension of the scope of Ijma. (Abu Hanifa advocated the validity of Ijma in

every age, though in theory it was strictly confined to companions of the prophet.

(iv) Recognizing the authority of Local custom and usages as guiding the application of

law.

(v) Evolving the doctrine of Istihsan. (It means the modification of theory of law in its

application to actual fact)

2. The Maliki School (Madina School)

(i) Acceptance of traditions, which in the opinion of Imam Malik, were authentic, even if

tradition carried authority of only one narrator.

(ii) Acceptance of practices, usages customs of the people of Madina and of the saying of

companions of prophet.

(iii) Resource to Qiyas (Analogy), only in the absence of an explicit test.

(iv) Recognition of Principle of public welfare (Al-masalih al- mursalah) as basis of

deduction.

(v) Adding to the four main sources of Muslim Law, one more source viz., Istidial i.e.,

principle of logical deduction.

3. Shafi’s School

(i) Acceptance of four sources of law; the Quran, the Sunnah; the Ijma and the Qiyas.

(ii) Acceptance of Istidial as fifth source of law;

13
 (iii) Non-Acceptance of Ishithsan of Hanafi School and al-Malih al-mursalah of Maliki

School.

4. The Hanbali School

The adherents of Hanabali School recognize five main sources:

(i) The Quran;

(ii) The Sunnah;

(iii) The Ijma of the companions of Prophet, if there is nothing to contradict them, and

sayings of some of the companions when these are consistent with the Quran and the

Sunnah;

(iv) ‘Zaief’ and ‘Mursal’ traditions (traditions having a weak chair of transmission and

lacking in the name of some of the transmitters); and (e) Qiyas whenever it is necessary.

5. Zaidiyah School

(i) Recognition of principle of election as the basis of succession.

(ii) Considering the Imam is nothing more than a ‘right guide’.

6. Ashriyah school

Believing that last of these Imams has disappeared and to be returning as Mehdi (Messiah).

Webliography

http://www.legalservicesindia.com
https://libraryguides.law.pace.edu/
https://en.wikipedia.org
https://legal-dictionary.thefreedictionary.com

14