From earlier times there were 2 lines of thought putting forward father’s absolute right over the property:
Mitakshara (Janmasvatvada or ownership arising due to birth)
Dayabhaga (Upramasvatvada or ownership arising due to death)
School Of Mitakshara
This school advocates that the son shall have equal rights and ownership over the father’s ancestral property.
The coparcener comes into existence on the birth of a son. When it comes to female coparceners, before the 2005 amendment no female could have been a coparcener.
Mitakshara is also known as the school of aggregate ownership(survivorship or notional partition). Which means that share of each coparcener alters; when either birth or death takes place in the family.The share of coparceners is not defined. It keeps on varying when a person dies or is born.
For eg:- A is the father of the family, B,C,and D are the coparceners. Upon the death of B, his share will be equally distributed among C,D and E, where E is an additional coparcener.
This school works under the principle of propinquity;
which means closeness in blood or kinship.
According to Mitakshara law the powers of the father are limited and qualified over joint family property.
A coparcener in Mitakshara has no power to alienate his share by sale, mortgage or exchange.
Mitakshara is further divided into 4 sub-schools.
Benaras school :- The authority of this school extends to the whole of northern India, except Punjab where its authority is modified by customary law in rural areas.
Bombay school :- The authority of this school extends to the whole of western India, Including the presidency of
Bombay, Guujarat and Berar and parts where Gujarati Language is spoken as a language.
3. Mithila school :- The authority of this school prevailed in Tirhoot and North Bihar.
4. Madras or Dravida school :- The authority of this school extends to the whole province of Madras.
It may be relevant to mention here that the differences between these sub schools regarding adoption and maintenance have been swept away by Hiindu Adoption and maintenance act 2005.
School Of Dayabhaga
The concept of coparcenary in Dayabhaga is completely different from that of Mitakshara.
Under the Dayabhaga law, the son does not acquire any interest by birth in the ancestral property,
but the son’s right arises for the first time on the death of the father and property devolves by succession and not by survivorship. So there is no correspondence between father and son in Dayabhaga law.
The father has absolute power to dispose of all kinds of property, separate as well as ancestral, by sale, mortgage or will. The son has no right to demand partition during father’s lifetime.
Dayabhaga is also known as school fractional ownership. The shares of coparceners are defined.
This school is based on religious efficacy.
If a coparcener dies without male issue,
his share will be passed onto his widow or daughter.
In IT Comm. V. Sandhya Rani. A Hindu dies intestate leaving behind a widow and his 2 daughters. Supreme court held that with the absence of a male member, females cannot form a Hindu joint family.
Points Of Difference
The main points of difference between the two schools are as follows:
1. Coparcenary: Under Mitakshara system, coparcenary comes into existence on the birth of a son. Under Dayabhaga it comes into existence on the death of the father. But only females cannot start a coparcenary.
2. Female as coparcener : Under Mitakshara when it comes to female coparceners, before the 2005 amendment no female could have been a coparcener.
Under the Dayabhaga law, the son does not acquire any interest by birth in the ancestral property, but the son’s right arises for the first time on the death of the father and property devolves by succession and not by survivorship.
3. Defined share : Mitakshara is also known as the school of aggregate ownership(survivorship or notional partition). Which means that share of each coparcener alters; when either birth or death takes place in the family.The share of coparceners is not defined. It keeps on varying when a person dies or is born. Dayabhaga is also known as school fractional ownership.
The shares of coparceners are defined.
4. No right by birth : Under Dayabhaga coparcenary starts with the death of the father. In Mitakshara it is the birth of the son.
5. Basis of two schools: Mitakshara school works under the principle of propinquity; which means closeness in blood or kinship. Dayabhaga school is based on religious efficacy.
6. Right of survivorship: There is no rule of survivorship in Dayabhaga. In Mitakshara too this rule has been abolished after the 2005 amendment.
7. Fathers power over property: According to Mitakshara law the powers of the father are limited and qualified over joint family property.
Under Dayabhaga the father has absolute power to dispose of all kinds of property, separate as well as ancestral, by sale, mortgage or will. The son has no right to demand partition during father’s lifetime.
8. Coparceners power over property: A coparcener in Mitakshara has no power to alienate his share by sale, mortgage or exchange.In Dayabhaga law there is unity of possession in defined portions and can dispose off even if there is no partition by metes and bounds.
9. Concept of joint family property: The concept of joint family property is same in both the systems and it may comprise of ancestral property, joint acquisitions and self- acquisitions thrown into common stock and accretions of such property.
Conclusion
Even though both Dayabhaga and Mitakshara reach to different conclusions and diverge on the laws of succession and inheritance these are digests on leading smritis equally admit and rely on the authority of Yajanvalkya Smriti.
This article is written by Arjun Raj M V of CT University.