Under the Mitakshara school, there is a recognized mode of devolution of property by survivorship and inheritance while under the Dayabhaga school one mode of devolution of property is recognized… Discuss

Question: Under the Mitakshara school, there is a recognized mode of devolution of property by survivorship and inheritance while under the Dayabhaga school one mode of devolution of property is recognized.

Discuss what is the position of the joint family properties when it is recognized. Discuss what is the position of the joint family in the hands of a sole surviving coparcener. [UPJS 1991]

Find the answer only on Legal Bites. [Under the Mitakshara school, there is a recognized mode of devolution of property by survivorship and inheritance while under the Dayabhaga school one mode of devolution of property is recognized… Discuss]

Answer

The property of a person devolves in two ways after his death; by way of his Will, and according to the laws of succession, that is intestate, in the absence of Will. The property of a male Hindu who dies intestate shall devolve upon his heirs as per the laws of succession.

The term “intestate succession” implies succession to the property of a person who dies without making any testamentary disposition of it. It also refers to property that the intestate leaves behind him to pass to his heirs.

There are two systems of inheritance amongst the Hindus in India, namely, the Mitakshara system and the Dayabhag system. The Mitakshara system prevails in the whole of India except in Bengal and its adjoining parts, where the Dayabhag system prevails. Both the systems are based upon the text of Manu.

The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the governing principle of inheritance under the Dayabhag school, the rule of consanguinity has been regarded as the guiding principle under the Mitakshara system.

The basic difference between the two schools arose from their different modes of interpretation of the term ‘sapinda’. To Mitakshara it meant the nearest in blood, the rule of consanguinity or proximity of blood relationship became the basis of determining the line of succession.

The characteristic feature of Mitakshara law of succession is the principle of propinquity with this most important qualification that no cognate excepting a daughter’s son can succeed in preference to an agnate. The Dayabhag system interprets the text of Manu differently. According to the author of Dayabhag one who is competent to offer an oblation to the males is sapinda and thus the doctrine of religious or spiritual benefit has emanated to determine the order of succession.

Modes of devolution of property

The Mitakshara system recognizes two modes of devolution of property, namely, devolution by survivorship, and devolution by succession. The rule of survivorship applies with respect to joint family property or coparcenary property whereas the rules of succession apply with respect to property held in absolute severality by the last owner.

In determining the modes in which the property of a male Hindu devolved on his death the foremost consideration was whether the property of the deceased male Hindu at the time of his death constituted his undivided interest in the coparcenary property and whether he was a member of the coparcenary.

If he was a member of Mitakshara coparcenary and he had an undivided interest in the coparcenary property, it devolved on other coparceners by survivorship, subject to the provisions of the Hindu Women’s Right to Property Act, 1937. Coparcenary property is synonymous with ancestral property, i.e., property inherited by a male Hindu from his father, father’s father, and father’s father’s father.

It also consisted of the separate property of the coparceners thrown into the common coparcenary stock, property jointly acquired by the members of a joint family, and property acquired by the members of a joint family with the aid of ancestral property.

The main incidents of coparcenary property were :

1. it devolved by survivorship, not by succession,
2. it is a property in which the male issues of the coparceners up to three degrees acquire an interest by birth.

Under the Dayabhag system, the ruling canon determining the order of heirs was religious efficacy, whether the great jurist who built a system on the foundation of spiritual benefit was only justifying on a logical ground and usages which were already in existence, or to a large extent remolded them, it is a not easy to determine. But this much is clear in his hands the principle of spiritual benefit was utilized to free the father from the legal fetters of the joint family system and to frame the order of succession in accordance with more equitable principles. While Jimutvahana rested his scheme primarily on Manu’s text.

Probably the divergence between their view was, in part, due to this different approach. While Jimutvahana undoubtedly made the doctrine of religious efficacy very generally the determining factor in the law of succession, the proposition, that, in the Dayabhag school, that doctrine was universally and without exception the sole test cannot be said to be altogether free from doubt.

In a number of cases like Govind v. Anand Lal 1870 5 Beng LR 15 (F.B.); Digamber v. Moti Lal 1883 9 Cal. 563 (F.B.); Sambhu Chandra v. Kartik Chandara, 1927 Cal. 11, it was repeatedly held that religious efficacy was the sole test for determining the order of heirs under the Dayabhag system.

Later, on the earlier decisions, that the doctrine of religious efficacy was not always the guiding principle of inheritance under the Bengal school of law and that it could not be consistently applied in all cases, therefore, in cases not contemplated by the Dayabhag the doctrine of propinquity could be applied, or in such cases, religious efficacy alone could not be the test without giving due weight to propinquity. Inheritance under the Dayabhag system. The principle of succession according to the Dayabhag school is marked by two outstanding features:

1. the rule of religious or spiritual benefit i.e., the capacity to confer a spiritual benefit on the deceased,
2. single mode of succession, ie, devolution of the deceased male Hindu’s property by succession.

Thus, in the Dayabhag system, the basis of determining the order of heirs is the capacity to confer religious or spiritual benefits on the paternal and maternal ancestors. The basis of the rule of religious benefit is the Pravara Shradha ceremony which is considered one of the most important of the twelve kinds of Shraddha mentioned in the Dharmashastra.

The Dayabhag recognizes only one mode of devolution namely, succession. It does not recognize the rule of survivorship nor a distinction between joint family property and separate property. The reason, according to Mulla, is that while every member of a Mitakshara joint family has only an undivided interest in the joint property, a member of a Dayabhag joint family holds his share in quasi-severality, so that it passes on his death to his heir’s as if he was the absolute owner thereof, and not to the surviving coparceners as under the Mitakshara law.

Provisions related to Hindu Succession Act 1956

The Hindu Succession Act 1956 maintains the devolution of property as per the Mitakshara School. However, there is one exception- if a Mitashara Coparcener passes away and leaves behind any of the following family members – like a mother, widow, daughter, daughter’s children, son’s children, son’s widow, grandson’s widow, etc then his interest in the joint family property will devolve by succession.

The Hindu Succession Act 1956 handles matters of inheritance in the following categories:

• The separate properties of a Mitakshara male
• The separate and coparceners of a Dayabhaga male and
• The undivided interest in the joint family property of a Mitakshara Coparcener.

The Act has completely overhauled the law of succession as it existed before the commencement of the present Act. It now provides the following four schemes of devolution of property of a Hindu who dies intestate :

1. Devolution of coparcenary interest of a Mitakshara coparcener, dying intestate leaving only male heirs mentioned in class I of the Schedule. (Section 6). After the Hindu Succession (Amendment) Act, 2005, has totally damaged the concept of Mitakshara coparcenary because the daughter has been treated like a son under the Amended Act of 2005, she becomes entitled to a share in coparcenary by birth and she becomes a coparcener in her own right in the same manner as the son.
2. Devolution of Coparcenary interest of a Mitakshara coparcener dying intestate leaving male and female heirs given in class I of the Schedule. (Section 6). After the Hindu (Amendment) Act 2005, Now the position has been changed.
3. Succession to separate or self-acquired property of a male Hindu, dying intestate. (Sections 8-12).
4. Succession to the property of a female Hindu dying intestate. (Sections 15 and 16).

Sections 18 to 28 of the Act are captioned as ‘general provisions relating to succession’ and lay down the rules which are supplementary to the provisions contained in Sections 5 to 16.

The Hindu women’s limited estate is abolished and replaced by the absolute estate. Any property possessed by a female Hindu acquired lawfully either before or after the commencement of the Act becomes her absolute property and it is held by her as the full owner, not as a limited owner. A separate scheme of a succession of such property has been laid down in Sections 15 and 16 of the Act.

The Chapter containing Sections 5 to 17 are grouped under the heading “Intestate Succession-general”. The Chapter also deals with heirs who are entitled to succeed and the mode of devolution of property.

The Act applies to all property of the deceased Hindu except those mentioned in Section 5 of the Act. Section 5 runs as follows:

1. This Act shall not apply to any property, succession to which is regulated by the Indian Succession Act, 1925 by reasons of the provisions contained in Section 21 of the Special Marriage Act, 1954;
2. any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act;
3. The Valiamma Thampuran Kovilagam Estate and the Palace Fund are administered by the Palace Administration Board by, reason of the powers conferred by Proclamation (IX of 1124) dated 29th June 1949, promulgated by the Maharaja of Cochin.

Position of the joint family in the hands of a sole surviving coparcener

The people who have a right by birth in the joint family property are called Coparceners. In the ancestral property of a male, his son, grandson and great-grandson have a right by birth.

Text of Yajnavalkya says:

“In land, corrode or wealth received from the grandfather, the ownership of the father and son is equal”.

This means that the son can enforce a partition in ancestral property, that is, property descending to the father from his male ancestors. Such property becomes coparcenary property in the hands of the sons.

That is, their sons, grandsons, and great-grandsons can claim a share in it by birth. The share obtained by enforcing a partition would also be coparcenary property. The self­-acquired property of the coparceners may be kept apart by them or maybe blended by them with the coparcenary property. Coparcenary is a narrower body than the joint Hindu family.

When a coparcener outlives all other coparceners he is known as the sole surviving coparcener. Such property in the hands of the sole surviving coparcener is of the nature of that of Hindu Undivided Family property. Due to the Coparcener being sonless and because of the absence of any other coparcener, when the joint family property passes into the hands of such Coparcener it converts into a separate property.

---

• Hindu Law – Notes, Case Laws And Study Material
• Test Series for Competitions