B.A. LL.B. (Five Years) Sem 5 Family Law I (Hindu Law) 2011 Jun Question Paper with Solutions

For full marks, cover: the two schools in a few lines (the Mitakshara of Vijnaneshwara on the Yajnavalkya Smriti, all India except Bengal and Assam, with its sub-schools; the Dayabhaga of Jimutavahana, Bengal and Assam); the root of the difference (ownership by birth against ownership on the father's death); the differences traced through one family's life: a son's birth (State Bank of India v. Ghamandi Ram), the father's sale of ancestral land, a son's sale of his own interest (Sukhram), a son's death (survivorship against succession), the widow of a sonless member, partition (severance of status by declaration, Puttrangamma, against division of fixed shares), and the basis of inheritance (blood relationship against spiritual benefit); the doctrine of factum valet; how far the Hindu Succession Act 1956 and the 2005 amendment removed the differences (sections 6 and 8; Vineeta Sharma); a table; a conclusion.

Event 1: S1 is born

Mitakshara. S1 acquires an interest in the ancestral land at birth. He becomes a coparcener with F. State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330, set out the incidents. The lineal male descendants up to the third generation acquire by birth ownership in the ancestral property. Each member's ownership extends over the whole property jointly with the rest. There is community of possession and enjoyment.

Dayabhaga. S1 acquires nothing at birth. While F lives, F is the sole owner of the land. So there is no coparcenary between father and son.

Event 2: F wants to sell the ancestral land

Mitakshara. F cannot sell freely, because S1 and S2 are owners too. As manager he may sell only for legal necessity, for the benefit of the estate or, as father, to pay an antecedent debt.

Dayabhaga. F is absolute owner. He may sell, mortgage, gift or even will the whole land. His sons cannot object.

Event 3: after F's death, S1 wants to sell his own share

Under the Dayabhaga, S1 and S2 now form a coparcenary, having inherited from F.

Event 6: the brothers decide to partition

Mitakshara. Partition means severance of joint status. The shares become fixed only then. Physical division may follow later. Severance can be effected by one member's clear declaration. Puttrangamma v. M.S. Ranganna, AIR 1968 SC 1018. Savoy Ranganna, the karta, sent registered notices declaring his intention to separate, and the other members learnt of it. He then had the notices withdrawn from the post, filed a partition suit and died the same day. The Supreme Court held that his communicated declaration had already severed his status. Withdrawing the notices did not restore it.

Dayabhaga. The shares are already fixed. Partition means only the physical division of those shares by metes and bounds.

Event 7: the family's line ends and distant heirs are sought

Mitakshara. The order of heirs rests on blood relationship (consanguinity), with agnates preferred.

Dayabhaga. The order rests on spiritual benefit: the relative who can offer oblations (pinda) of greatest benefit to the deceased comes first. This let some cognates come in earlier than under the Mitakshara.

4. Daughters as coparceners. Section 6 now makes a daughter a Mitakshara coparcener by birth. Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, held that this right arises by birth.
5. What survives. The Mitakshara coparcenary, with its birthright in ancestral property and its karta, still exists. The Dayabhaga father's absolute power over ancestral property also survives. So the root difference remains, though much narrowed.

An assessment

Each school had a strength. The Mitakshara protected the family. Because sons owned the property from birth, a father could not waste it, and the next generation was secure. The Dayabhaga protected the individual. Each member knew his share and could deal with it, and a widow without a son was not left with mere maintenance.

Each also had a weakness. The Mitakshara's survivorship excluded widows and daughters, and its undefined shares made dealings with outsiders uncertain. The Dayabhaga's absolute paternal power left sons exposed to a careless father.

Conclusion. The Mitakshara and the Dayabhaga part company on one point: whether a son owns ancestral property from birth or only from his father's death. From that follow the differences in the father's power of sale and in the nature of each member's share. Its alienation differs too, as Sukhram records. So do survivorship and the meaning of partition, which Puttrangamma shows to be severance of status in the Mitakshara. The Hindu Succession Act has unified inheritance and, since 2005, ended survivorship and made daughters coparceners, as Vineeta Sharma holds. But the birthright in ancestral property still divides the two schools.