Dayabhaga Coparcenary, and Property under Dayabhaga Law

In one line

In Bengal and Assam a son took nothing in his father's property until the father died, and when he did take, he took a defined share he could sell.

Where it applied

The Dayabhaga, written by Jimutavahana, was the authority in Bengal and Assam. The Mitakshara, Vijnaneswara's commentary on the Yajnavalkya Smriti, was the authority everywhere else in India. Neither is a statute and neither ever was; they are commentaries that the courts treated as authoritative for their regions.

That geography is worth stating in an answer, because it explains why the two systems never had to be reconciled: they were never applied in the same place.

The single principle

Under Dayabhaga law, ownership arises on the death of the last owner, not on birth.

The Dayabhaga rejected the Mitakshara idea that a son acquires an interest in his father's property the moment he is born. It reasoned from the religious side of inheritance: a person succeeds to property because of his capacity to confer spiritual benefit on the deceased, and that capacity cannot arise until there is a deceased.

So during the father's lifetime the father is the absolute owner. The son has nothing. He has no interest, no right to demand partition, no right to object to what his father does with the property.

The incidents, one by one

Each of these is the negative of the corresponding Mitakshara rule.

No right by birth. The son takes on the father's death and not before.

No coparcenary during the father's lifetime. A Dayabhaga coparcenary is formed after the father dies, among the heirs who then take together. Father and son are never coparceners with each other.

Defined and ascertained shares. When the heirs take, each takes a specified share, which is known from the beginning. There is no fluctuating interest and no community of interest in the Mitakshara sense: what the coparceners have is unity of possession without unity of ownership.

No survivorship. On the death of a Dayabhaga coparcener his share passes to his own heirs, including his widow and daughters. It does not go to the other coparceners.

A coparcener may alienate his share. Because his share is defined and owned, he may sell it, mortgage it or will it away, and he may do so without the consent of the others. Under Mitakshara he classically could not.

A widow succeeds. Since there is no survivorship, a Dayabhaga coparcener's widow takes his share, and she may demand partition of it. Under Mitakshara she could not, because survivorship carried the interest past her to the surviving coparceners.

Females may be coparceners. It follows from the last point: a widow who succeeds to her husband's share becomes a member of the coparcenary in his place.