Jamia Millia Islamia

Family Law Project

Topic: Mitakshara and Dayabhaga

Submitted To: Professor Kehkashan Danyal

Introduction

A Hindu Joint Family setup is an extended family arrangement prevalent which has an
enormous legal significance in India. Simply, a Hindu Joint Family would at best be described as,
the lineal descendants and their dependents where, the former trace their origin to one
common ancestor. The underlying essence of a joint family is the fact that it traces its origin
back to one common ancestor and with the addition and deaths of members, joint families can
continue till eternity.

It is important to understand that though a single familial unit, a Joint Hindu Family does not
have a separate legal identity and is not a juristic person. Though, the only collective statutory
recognition that has been bestowed upon a Joint Hindu Family is for the purposes of taxation.
Though, the definition is highly flexible.

The Hindu Joint Family being considered as the close knit unit as it is though has a few
prominent members while its legal status is being considered. The researcher intends to reflect
the legal status of two prominent members: the Karta, the status of a female as a coparcener
post the 2005 amendment.

It is also important to note the once a severance of joint status has taken place, the subsequent
conduct of the parties is not relevant to be determined. The mere fact that separated
coparceners chose to live together or act jointly for purposes of business or trade or in their
dealing with properties, would not give them the status or coparceners under the Mitakshara
law. The important point here is that the coparceners must be proved to have been separated,
and if so, then mere subsequent conduct unless a reunion takes place, would not restore the
joint family status.

Joint family is a fundamental aspect of Hindu Law in which the concept of joint family is where
their common ancestor and his male lineal descendants along with other members such as
wives, daughters, unmarried persons who stay together under one roof sharing everything in
common. In both the schools i.e. Mitakshara & Dayabhaga. The concept of joint family
property is the area which makes each of them different from one other. For every Hindu there
will be no escape from the Joint Family, may be in one generation or other the Hindu will come
into the existence of Joint Family automatically. Therefore it is mentioned under the Hindu
Laws that there is a presumption that each family will be considered as a Joint Family. So under
this article I would be focusing more on the concept of Hindu Joint Family involved and the
major roles played by of Karta, Coparcenary in handling with the Joint Family Property. Apart
from all the above will come into the major difference between Mitakshara and Dayabhaga.

My topic for the given project in the Hindu Joint family is ‘Mitakshara and Dayabhaga’ which, I
would be explaining it in further specifically in the given project. Hereinafter,I , the
introduction, would make you come across the definitions, differentiations, and furthermore
the explanation of my topic in detail. In a case 1Rajgopal v Padmini, whenever if two or more
families agree to live together by sharing their food, work, resources, gains etc. into a common
stock, then there will be an existence of Joint Family as well as in the given case 2Ram Kumar v
Commr the same is mentioned.

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1
AIR 1990 Mad 353, International Journal of Law Management & Humanities, Saimy Eliza Abraham
2
Supra 1, AIR 1953 ALL 150
 Mitakshara

In Mitakshara Joint Family Property son has a right over the property since the birth, even an
illegitimate son or a widowed daughter has a right over the property of their father’s Joint
Family Property. Another feature is the right to Maintenance and right of survivorship which
will be given to the unmarried daughters and other members respectively in the Joint Family.
Under Mitakshara only Joint Family property will be acquired by the coparcenary by the
concept of succession and survivorship. In case Board of Revenue v. Muthu Kumar3 it was
observed that when a son inherit the father’s separate property, he will acquire it as a separate
property even if he has a son under Section 8 of Hindu Succession Act4 .Whereas in Dayabhaga
Joint Family Property son has no right over the properties by birth. Even the concept of
Survivorship is not given to son and therefore there is no joint family between the son and the
father. Under Dayabhaga it includes all the properties both self-acquired and joint family
property will be devolve by succession.

In the Mitakshara School, the allocation of inherited property was based on the law of
possession by birth and a man could leave his self-acquired property to which he willed. The
joint family property went to the group known as coparceners, i.e. those who belonged to next
three generations and also the joint family property by partition could be, at any time,
converted into separate property (Karve 1968:344). Therefore in Mitakshara School, Sons had
an exclusive right by birth in joint family property. Mitakshara was based on the ‘principle of
ownership by birth’. Mitakshara School, a family was also a joint family because property was
assumed equally by all the male members.5

A female cannot be a member of Mitakshara coparcenary i.e. by birth she has no right in the
joint family property. If a division took place only certain females were permitted to a share,
usually she had no right of partition. Under the Act, the Hindu Women’s Right to Property Act,
1937, the undivided interest of a coparcener on his death did not go by survivorship to
coparceners, but his widow took it as heir, though she took it as a limited succession his
interest in the joint family property6. The Mitakshara School did not give complete result to the
principle, and restricted it by two supplementary rules: (1) females are excluded from
inheritance and (2) importance of agnates over cognates7. Mitakshara is a straightforward and
comprehensible with a definition that has been competent and controlled in its relevance by
our Courts in result of its difference with the vision of other establishment8.

3
AIR 1979 Mad
4
Hindu Succession Act,1957
5
shodhganga.inflibnet.ac.in,Karve 1968:356,
6
Diwan(2006:276-277)
7
Abrol 2011:80
8
Chapter 2, shobgana.in
The Hindu Women’s Right to Property Act came into force. The Act was not effective and was
amended by the Hindu Women’s Right to property (Amendment) Act, 1937. Even after the
amendment, the Act was not satisfactory. The Act does not takes into consideration the
properties situated in foreign countries, or to the properties which did not belong to the
deceased in his own right and the Act was applied only when a Hindu dies intestate. The
property of a Hindu female was also not considered in the Act. Under this Act, property is
permitted to a Hindu man’s widow, his widowed daughter in law and widowed granddaughter
along with his male heirs. However the rights established to the widow is a narrow one because
the Hindu Mitakshara law determines estates in terms of tradition but not the basis of custom
of the estate in terms of period.9 The Hindu Succession Act, 1956, bases its rule of succession
on the basic Mitakshara principle of propinquity, i.e., preference of heirs on the basis of
proximity of relationship. The Mitakshara limited the effect of the principle by the twin rules of
exclusion of females and of agnatic preference. The rule of exclusion of females has been done
away with, while the rule of agnatic preference has been considerably modified so far as it
concerns the nearer relations.10 Under the Hindu Succession (Amendment) Act, 2005, the
daughters by birth have the same rights in the coparcenary property as she would have had if
had been a son and the same liabilities are given to daughters in the said coparcenary property
as that of son. The position of a daughter as a coparcener shall be deemed to include in the
Hindu Mitakshara School11

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9
Supra 8.
10
Ibid 9
11
Ibid 10
 Dayabhaga

Dayabhaga Joint Family Property son have no right over the properties by birth. Dayabhaga it
includes all the properties both self-acquired and joint family property will be devolved by
succession.12 The property is inherited in the Dayabhaga School after the death of the person
who was in possession of it. The doctrine of son’s birth right and the devolution of property by
survivorship had limited space in Dayabagha School.13 Under the Dayabhaga School there is no
such constraint and each coparcener has complete right of separation of his exclusive share in
the joint family property.14 Dayabagha on principle of ownership by death15In the Dayabhaga
Scheme the division of property was very simple. If a man died intestate, his supposed the
property was divided uniformly between his sons. If he has share in the common property with
the brothers then the property (a share equal to his own) of the brothers would be put apart
and his share would be separated between the sons. The law of succession in the Dayabhaga
School was based on the principle of religious value or divine profit. The law of inheritance in
the Mitakshara School was based on the rule of blood-relationship.

The Mitakshara School did not give complete result to the principle, and restricted it by two
supplementary rules:

(1) Females are excluded from inheritance and

(2) Importance of agnates over cognates16

This means that in case of a death of a Hindu man leaving behind a son and a daughter, the
latter would be excluded totally and the former would get the entire property. In case he leaves
behind a son’s son and a daughter’s son, the former should succeed to the entire property and
the latter would be excluded.

Dayabhaga Joint Family Property son have no right over the properties by birth. Even the
concept of Survivorship is not given to son and therefore there is no joint family between the
son and the father. Under Dayabhaga it includes all the properties both self-acquired and joint
family property will be devolve by succession17 There is no concept of Joint Family under the
Dayabhaga School.

The existing of Dayabhaga coparcenary comes only after the death of the father, by that the
son will inherit the property of him and constitutes a coparcenary. The concept of Dayabhaga is
followed only in certain parts of India like West Bengal, Assam etc. in this school there is no
right by birth given to son. Son can inherit the property on his father’s death. Likewise when

12
2018 IJLMH | Volume 2, Issue 1 | ISSN: 2581-5369
13
Ibid 10
14
(Abrol 2011:77)
15
Supra 7
16
(Abrol 2011:80).

17
2018 IJLMH | Volume 2, Issue 1 | ISSN: 2581-5369
son dies his heir’s male or females can succeed his property. If suppose, the son dies leaving
behind widows or daughter’s daughter then they can succeed the property and becomes
coparcener. The main difference between both the schools is that here the females can
become coparcener. Here the each coparcener takes definite shares, unity of possession.
Suppose in a family consist of P and four sons A, B, C, D. On the death of A, the B, C, D will
consist of a coparcener. On the Death of B his heirs will coparcener and so on. But, under
Dayabhaga school the coparcenary can’t consist of only females, there should be a male in first
and followed by female’s members. So if a male dies leaving behind his widow and two
daughters they will succeed upon his property but will not be forming a coparcener. 18

Under Dayabhaga school also classify the properties in Apratibandha daya (Unobstructed
Heritage) and SapratibandhaDaya (Obstructed Heritage). But Unobstructed Heritage is not
recognised under this school. All the property under this school is governed by the Obstructed
Heritage. All other classification of Property under Mitakshara is similar to Dayabhaga.19

There is no concept of Joint Family under the Dayabhaga School as compared to the
Mitakshara. There is no coparcenary consisting of Father, son, son’s son, son’s son’s son. The
existing of Dayabhaga coparcenary comes only after the death of the father, but that the son
will inherit the property of him and constitutes a coparcenary. The concept of Dayabhaga is
followed only in certain parts of India like West Bengal, Assam etc. in this school there is no
right by birth given to son. Son can inherit the property on his father’s death. Likewise when
son dies his heir’s male or females can succeed his property. If suppose the son dies leaving
behind widows or daughter’s then they can succeed the property and becomes coparcener. The
main difference between both the schools is that here the females can become coparcener.
Here the each coparcener takes definite shares, unity of possession. Suppose in a family consist
of P and three sons B, C, D. On the death of A, the B, C, D will be consisting of a coparcener. On
the Death of B his heirs will coparcener and so on. But under Dayabhaga school the
coparcenary can’t consist of only females, there should be a male in first and followed by
female’s members. So if a male dies leaving behind his widow and two daughters they will
succeed upon his property but will not be forming a coparcener.20

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18
Supra 7
19
Ibid 19
20
Supra 7
 Difference between Mitakshara and Dayabhaga

The ancient Schools of Hindu laws are believed to be of two types and were in existence before
the Hindu law was codified with the Hindu Succession Act of 1956.

1. The Mitakshara School, and

2. The Dayabhaga School or Bengal School

In Bengal and Assam the Dayabagha School was established and in the entire of India apart
from in Bengal and Assam Mitakshara School was broaden. The two main interpreters who
wrote on Mitakshara and Dayabagha Schools were Vijnaneshwar and Jeenutavahan
respectively.

In the Mitakshara School, the allocation of inherited property was based on the law of
possession by birth and a man could leave his self-acquired property to which he willed. The
joint family property went to the group known as coparceners, i.e. those who belonged to next
three generations and also the joint family property by partition could be, at any time,
converted into separate property (Karve 1968:344). Therefore in Mitakshara School, Sons had
an exclusive right by birth in joint family property.

The property is inherited in the Dayabhaga School after the death of the person who was in
possession of it. The doctrine of son’s birth right and the devolution of property by survivorship
had limited space in Dayabagha School (Ibid 345). It is establish that in the Mitakshara School
neither the father nor any other coparcener could normally disaffect the joint family property.
Under the Dayabhaga School there is no such constraint and each coparcener has complete
right of separation of his exclusive share in the joint family property (Abrol 2011:77). To put it
simply, Mitakshara was based on the ‘principle of ownership by birth, and Dayabagha on
principle of ownership by death’ (Karve 1968:344).

In the Dayabhaga Scheme the division of property was very simple. If a man died intestate, his
supposed the property was divided uniformly between his sons. If he has share in the common
property with the brothers then the property (a share equal to his own) of the brothers would
be put apart and his share would be 4 separated between the sons. And in the Mitakshara
School, a family was also there just because property was assumed equally by all the male
members (Karve 1968:356).

A female cannot be a member of Mitakshara coparcenary i.e. by birth she has no right in the
joint family property. If a division took place only certain females were permitted to a share,
usually she had no right of partition. Under the Act, the Hindu Women’s Right to Property Act,
1937, the undivided interest of a coparcener on his death did not go by survivorship to
coparceners, but his widow took it as heir, though she took it as a limited succession his
interest in the joint family property (Diwan 2006:276-277).
The law of succession in the Dayabhaga School was based on the principle of religious value or
divine profit. The law of inheritance in the Mitakshara School was based on the rule of blood-
relationship. The Mitakshara School did not give complete result to the principle, and restricted
it by two supplementary rules: (1) females are excluded from inheritance and (2) importance of
agnates over cognates (Abrol 2011:80). This means that in case of a death of a Hindu man
leaving behind a son and a daughter, the latter would be excluded totally and the former would
get the entire property. In case he leaves behind a son’s son and a daughter’s son, the former
should succeed to the entire property and the latter would be excluded.

Stridhan

The literally meaning of the word stridhan is “woman’s property”. But in In Hindu law practical
meaning has been given to the concept of stridhan. In the whole history of Hindu law, woman’s
right to grasp and dispose of property has been acknowledged. At no time the woman has not
deprived of the use of her property as an absolute owner. It is also true that the sum of her
property has been anything but not enough. The Smritikars vary from each other as to what
things of property represent stridhan.

The difficulties about the problem what includes stridhan, begin from the information that
greater part of sages and commentators give neither an accurate definition of stridhan, nor an
extensive details, and the definition given by 5 Mitakshara is a straightforward and
comprehensible. That definition has been competent and controlled in its relevance by our
Courts in result of its difference with the vision of other establishment.

According to the Smritikars, the stridhan include those things which a woman expected by a
manner of gift from relations which incorporated generally impermanent property such as
ornaments, jewellery and dresses. The gift given to her by strangers at the time of the
ceremony of wedding or at the time of wedding demonstration also comprised her stridhan (
Diwan 2009: 376).

The women’s right to property was controlled due to the patriarchal structure of Indian society.
Although the male members owned property, this ownership cannot be equated with the
modern notion of ownership which essentially confers the right of alienation. The basic
characteristic of the joint property was its inalienability. The property could not be easily
disposed of by way of sale, gift or will. Hence the joint ownership, of males was more notional
than actual. The property was managed by the head of the family or karta for the benefit of the
entire family including its female members. When the property was divided, the right of male
members was effectively the right of protection. Even after partition, the property in the hands
of each of the coparceners, continued to be joint property, held in trust along with his male
progeny for the benefit of the next line of descendants (Agnes 2004:14).

Since women did not figure as a component of the coparcenary, they did not have even the
speculative right of joint possession; hence they could not claim division. After division, a
sonless widow had the right to take over the split of her departed husband. Women had the
right to be maintained from the joint property and this right included the right of residence.
Since divorce was not commonly prevalent, after marriage, women could not be easily deprived
of their residence and maintenance in their husband’s house.

The husband was bound to maintain the wife despite all her faults including quarrelsome
nature, neglect of household, barrenness and adultery, though the scale at which she had to be
maintained would go down as per the 6 severity of her faults. In addition, the wife was entitled
to ‘supersession fee’ an equal share of the property, which the husband gifted to the new wife.
Women also had the right to claim marriage expenses from the joint property in their natal
house. A special category of property i.e. stridhan is assigned under the joint possession to the
women (Agnes 2004:15).

The stridhan includes all those properties which women inward by way of present from
relatives which incorporated mostly impermanent property, however sometimes a house or a
piece of land was also specified in present along with ornaments, jewellery and dresses. The
present made to her by unknown persons at the time of the rituals of wedding or at the time of
bridal procession also become her stridhan.

Giving of dowry to daughters in the marriages is found from the Vedic period in the form of
gifts given by parents, brothers and by other relatives. These offerings would become her
individual possession which means that she had total control over such property. Even in
modern time stridhan or women’s property including gifts specified at the time of wedding
form the women’s property (Kant 2008: 335). The property achieved by a woman at any period
of her life by adverse ownership, self-exertion, such as by physical effort, by service, by singing,
dancing, etc., or by any emotionless art also become her stridhan. Property specified by present
or by determination by strangers to a woman, during maidenhood or widowhood, before the
wedding or at the marriage procession also constitutes her stridhan and the investments of the
income of stridhan, constitute stridhan. Even all impermanent and permanent properties given
to her by means of an absolute present in lieu of protection also constitute her stridhan (Diwan
2009:367). Thus, stridhan is the supreme property of the female and she can make use of it
according to her personal will. This means that she can sell, present or substitute or if she
chooses, she can lay it on flames.
 Conclusion

So by this paper we have understood the concept of Joint Family Property under Mitakshara
and Dayabhaga School. Coparcenary idea under Hindu Law was mainly by the male member of
the family where just children, grandsons and great-grandsons son who have a right by birth,
who has an interest in the coparcenary property. No female of a Mitakshara coparcenary could
be a coparcener but she will always be a part of the Joint Family. So under Mitakshara a son,
son’s son, son’s son’s son can a coparcenary i.e. father and his three lineal male descendants
can be a coparcener. There is no concept of Joint Family under the Dayabhaga School as
compared to the Mitakshara. There is no coparcenary consisting of Father, son, son’s son, son’s
son’s son. The existing of Dayabhaga coparcenary comes only after the death of the father, by
that the son will inherit the property of him and constitutes a coparcenary. The concept of
Dayabhaga is followed only in certain parts of India like West Bengal, Assam etc. in this school
there is no right by birth given to son. Son can inherit the property on his father’s death.
Likewise when son dies his heir’s male or females can succeed his property. If suppose the son
dies leaving behind widows or daughter’s then they can succeed the property and becomes
coparcener. The main difference between both the schools is that here the females can
become coparcener. Here the each coparceners takes a definite shares, unity of possession.