Dayabhaga Coparcenary, and Property under Dayabhaga Law
Chapter Forty-Two
Syllabus topic 2.3, "Dayabhaga coparcenary, formation and incidents; property under Dayabhaga law"
Pages 254 to 257 of 477
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.
Dayabhaga Coparcenary, and Property under Dayabhaga Law
That last feature is worth pausing on. Long before the amendment of 2005, the Dayabhaga school admitted women to the coparcenary as a matter of course, because its structure had no survivorship to exclude them.
The two schools side by side
| Mitakshara | Dayabhaga | |
|---|---|---|
| Where | All India except Bengal and Assam | Bengal and Assam |
| Commentary | Vijnaneswara on the Yajnavalkya Smriti | Jimutavahana |
| Right in the property | By birth | On the death of the last owner |
| Coparcenary with the father | Yes, during his life | No, only after his death |
| Shares | Fluctuating and unascertained | Defined and ascertained |
| Unity | Of ownership and of possession | Of possession only |
| Devolution on death | Classically survivorship | Succession to his own heirs |
| May a coparcener sell his share | Classically no | Yes |
| May he will it away | Classically no | Yes |
| The widow | Not a coparcener; classically excluded by survivorship | Succeeds to her husband's share |
| Partition | Of an unascertained interest, which the partition ascertains | Of a share already known, which the partition separates by metes and bounds |
| Basis of inheritance | Consanguinity, nearness of blood | Spiritual benefit, capacity to confer religious benefit on the deceased |
The last row is the theoretical difference and it is the one that generates all the others. Mitakshara measures the right by propinquity of blood; Dayabhaga measures it by the religious efficacy of the offerings the heir can make.
What partition means in each
The word is the same and the operation is not.
Under Mitakshara, partition does two things at once: it ascertains the share, which until then did not exist as a definite quantity, and it divides the property. That is why the classical writers say a Mitakshara partition is a partition of status first and of property second, and why a severance in status can happen without any physical division at all.
Under Dayabhaga, the share is already known. Partition therefore does only one thing: it divides the property by metes and bounds. There is no separate concept of severance in status, because there was no unity of ownership to sever.
Both are taken further in [Partition: What It Is, Who Can Demand It, and How].
What is left of the difference today
This is what turns a comparison into an answer.
Section 6 of the Hindu Succession Act, as substituted in 2005, applies only to Mitakshara. Its words are "in a Joint Hindu family governed by the Mitakshara law". So the daughter's coparcenary right by birth is a Mitakshara reform. It had to be, because in Dayabhaga there is no right by birth for anybody.
Survivorship is gone from Mitakshara too. The 2005 substitution provides that a coparcener's interest devolves by testamentary or intestate succession and not by survivorship. On that point the two schools have converged, and the convergence is in the Dayabhaga direction.
Dayabhaga Coparcenary, and Property under Dayabhaga Law
The Hindu Succession Act governs succession in both schools. Sections 8 to 16 apply to every Hindu, whichever commentary his region followed.
So the practical position is that the schools still differ on the right by birth and on everything that flows from it during the holder's lifetime, and no longer differ much on what happens when he dies. A useful closing line for an essay is that the Dayabhaga lost the geography and won the argument.
A worked example
A family in Bengal consists of a father F and two sons S1 and S2, holding land inherited from F's father. Compare what happens with a Mitakshara family in Maharashtra in identical facts.
Who owns the land while F lives? Under Dayabhaga, F is the absolute owner. His sons take nothing by birth, because no right arises by birth. Under Mitakshara, S1 and S2 are coparceners with F and take an interest by birth.
Can F sell the land? Under Dayabhaga, yes, freely, and he may will it away. Under Mitakshara he may alienate only for legal necessity, benefit of the estate or an antecedent debt.
Can S1 demand a partition while F lives? Under Dayabhaga, no, because he has no interest yet. Under Mitakshara, yes, at any time and without a reason.
F dies. Under Dayabhaga the coparcenary now forms between S1 and S2, each with a defined share, holding in unity of possession without unity of ownership.
S1 then dies leaving a widow. Under Dayabhaga, his share passes by succession, and the widow takes her husband's place in the coparcenary. Under the classical Mitakshara it would have passed by survivorship, and this is what section 6(3) of the Hindu Succession Act has changed for deaths after 9 September 2005.
How does each school rank heirs? Mitakshara by nearness of blood; Dayabhaga by the capacity to confer spiritual benefit.
What is left of the difference? Section 6 reformed Mitakshara alone, because there was nothing of the kind in Dayabhaga to reform, and in abolishing survivorship it moved Mitakshara towards the Dayabhaga position.
What it does NOT mean
Dayabhaga is not a school without a coparcenary. It has one; it simply forms on the father's death rather than at birth.
Absolute ownership is not unlimited by anything. The father remains bound to maintain the family.
Unity of possession is not unity of ownership. Under Dayabhaga the shares are defined even before division.
Dayabhaga Coparcenary, and Property under Dayabhaga Law
A widow taking her husband's place is not a general rule of Hindu law. It is a Dayabhaga incident, and it followed from succession rather than survivorship.
Section 6 did not amend Dayabhaga. It reformed the Mitakshara coparcenary, and it is Mitakshara that has moved.
The schools do not differ only on survivorship. They differ on the principle of selection among heirs: propinquity against spiritual benefit.
Quick revision
- Where: Dayabhaga applied in Bengal and Assam; Mitakshara elsewhere.
- The single principle: no right arises by birth. The father is absolute owner, and the coparcenary forms only on his death.
- The incidents: defined shares; unity of possession without unity of ownership; devolution by succession, not survivorship; a power to sell and to bequeath a share; and a widow who takes her husband's place.
- The two schools: Mitakshara ranks heirs by nearness of blood, Dayabhaga by spiritual benefit; under Mitakshara a son may demand partition against the father, under Dayabhaga he may not.
- What partition means: under Mitakshara, severance of an undivided interest; under Dayabhaga, division of defined shares already owned.
- Today: s.6 of the Hindu Succession Act reformed Mitakshara only, and by abolishing survivorship moved it towards the Dayabhaga position.
Test yourself
1. On what single principle does the Dayabhaga school rest? That no right in property arises by birth. The father is the absolute owner during his life, and the coparcenary comes into existence only on his death.
2. State three incidents of a Dayabhaga coparcenary. The shares of the coparceners are defined; there is unity of possession but not unity of ownership; the interest devolves by succession and not by survivorship; a coparcener may sell or bequeath his share; and a widow takes her deceased husband's place in the coparcenary.
3. Can a son demand partition against his father under each school? Under Mitakshara, yes, because he has an interest by birth. Under Dayabhaga, no, because he has no interest until his father's death.
4. Why did section 6 of the Hindu Succession Act not affect Dayabhaga? Because it abolished survivorship in the Mitakshara coparcenary, and there was no survivorship in Dayabhaga to abolish; a Dayabhaga interest already passed by succession.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.