Explain the points of difference between the Mitakshara and the Dayabhaga with regards to the law of coparcenary interest of a Hindu.

Question: Explain the points of difference between the Mitakshara and the Dayabhaga with regards to the law of coparcenary interest of a Hindu. [BJS 1975, 1991]

Find the question and answer of Hindu Law only on Legal Bites. [Explain the points of difference between the Mitakshara and the Dayabhaga with regards to the law of coparcenary interest of a Hindu.]

Answer

Within the unit of the joint family system under Hindu Law, there is another unit known as the coparcenary. Coparcenary is a narrower body than the joint Hindu family. Every coparcenary starts with a common ancestor which after his death includes collaterals also.

The extension of coparcenary up to three generations carries special significance for Hindus as the male descendants up to three generations are competent to offer spiritual benefits to their ancestors.

The special characteristics of a Mitakshara coparcenary are a community of interest and unity of possession between all members of the coparcenary. Each coparcener is entitled to joint possession and enjoyment of the common property. The essence of a coparcenary is the unity of ownership, no individual member of the family, while it remains undivided, can predicate of the joint and undivided property that he has a certain definite share.

Under the Dayabhaga the technical meaning of 'coparcenary' comes into existence on the death of the holder of coparcenary property, provided he leaves two or more male issues or grandsons or great-grandsons. The male issues of a deceased father form at the coparcenary and become entitled as coparceners to the coparcenary as well as separate property left behind by the father.

The conception of a coparcenary and coparcenary property according to the Dayabhaga law is entirely distinct from that of Mitakshara law.

Points of distinction between the two systems -

A joint family governed by the Dayabhag law differs from the Mitakshara law in the following matters -

Interest by birth -

According to Mitakshara law, each son acquires at his birth an equal interest with his father in all ancestral property held by the father, and on the death of the father, the son takes the property, not as his heir, but, by survivorship.

According to Dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time after the father's death. On the death of the father, they take such property as is left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property lifetime, there can be no coparcenary in the strict sense of the word between a father and son according to Dayabhaga law, as regards ancestral property.

As a corollary of the above doctrine, negating the son's right by birth is the other peculiar doctrine of the Bengal School, what is called the 'fractional ownership' of the heirs, contrasted with the doctrine of aggregate ownership' expounded by the other schools. As was held in the case of Commissioner of Wealth-tax v. Bishwanath Chatterjee, AIR 1976 SC 1492.

Father's right of disposition -

Since sons do not, according to Dayabhaga law, acquire any interest by birth in ancestral property held by the father, the father can dispose of ancestral property, whether movable or immovable, by sale, gift, will, or otherwise, in the same way as he can dispose of his separate property. As was held in the case of Ramkishore v. Bhoobunmoyee, 1859 Beng Sudder Court 229.

According to Mitakshara, the powers of a father to dispose of ancestral property are limited.

Section 30 of the Hindu Succession Act, 1956, enables a male Hindu in a Mitakshara coparcenary to dispose of by will, his interest in the coparcenary property. It also recognizes in effect the right of a male Hindu governed by Dayabhaga law to dispose of by will his interest in coparcenary property.

Right to account and Right to partition -

Since sons, according to Dayabhaga law, do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father as they can under Mitakshara law, nor can they call for an account of the management thereof from the father as they can under Mitakshara law. It was held in the case of Makhan Lall v. Sushama Rani, AIR 1953 Cal 164: 57 Cal WN 81, that the father is the absolute owner of the property, and the property being his own, he can manage it in any way he likes.

Manager of property -

The rules as to the management of ancestral property by a manager do not apply at all to a father under Dayabhaga law. The reason is that he is not a manager of ancestral property; he is the owner, and sole owner, thereof. Besides, the term 'manager' as used in Hindu law, refers to the manager of a coparcenary, and there can be no coparcenary according to Dayabhaga law between a father and son even as regards ancestral property.

Coparceners -

According to Mitakshara law, the foundation of a coparcenary is first laid on the birth of a son. The son's birth is the starting point of a coparcenary according to that law. Thus, if a Hindu, governed by Mitakshara law, has a son born to him, the father and son at once become coparceners.

According to Dayabhaga law, the foundation of a coparcenary is that which is laid on the death of the father. So long as the father is alive, there is no coparcenary in the strict sense of the word between him and his male issue. It is only on his death, leaving two or more male matters, that a coparcenary is first formed.

Defined shares -

Under the Mitakshara, all the coparceners hold the property jointly, and no one has any defined share, whereas, under the Dayabhaga, each heir holds a determined share.

Unity of ownership -

Under the Mitakshara, there is a unity of ownership among the coparceners, whereas there is no such unity of ownership, on the other hand, there is the exclusiveness of possession over the joint family property under the Dayabhaga law.

Position of females -

Under the Mitakshara, no female can be a coparcener, whereas under Dayabhaga law, she could be a coparcener under certain conditions.

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