What is Partition
According to the true notion of an undivided Mitakshara family, no individual member of that family, Whist it remains undivided, can predicate of the joint property that he (that particular member) has a certain definite share, one third or one fourth. Partition, According to that law, consists of ascertaining and defining the shares of the coparceners, in other words, it consists of the numerical division of the property by which the proportion of each coparcener in the property is fixed.1
According to Dayabhaga law, on the other hand, each coparcener has even whilst the family remains undivided, a definite share in the joint property of which he is the absolute owner. The property is held in defined shares, though the possession is the joint possession of the whole family. Partition according to that law, Consists of separating the shares of the coparceners and assigning to the coparceners specific portions of the property.2
SOME IMPORTANT SCHOOLS OF HINDU LAW UNDER THE MITAKSHARA AND DAYABHAGA SCHOOL WHICH EFFECTS THE PARTITION OF JOINT HINDU FAMILY.
|MITAKSHARA SCHOOL||DAYABHAGA SCHOOL|
|Benaras School||Dayabhaga of Jimutabahana|
|Mithila School||Mitashar of Unansewara|
|Maharastra or Bombay School||Dayabhaga of Reghunandana|
|Dravida or Madras school||Daya karma sangraha of Shrikrishana|
|Punjab School||Viramitradaya of Mitra Misra|
Following are some points which distinguish the Mitakshara and Dayabhaga.
- Under Mitakshara Law only Male Members are coparcener. Females develop into coparcener after the enactment of the Hindu Succession Act.
- Persons are acquiring coparcenary by birth or adoption.
- Property dissolved on the doctrine of survivorship. In case of the death of one coparcener, his share in the property is belongs to other coparceners.
- Both Male and female members are coparcener.
- Persons are acquiring Coparcenary only after the passing away of the father.
- In case of the death of one coparcener his share is given to his lawful heirs i.e., Son Daughter, wife etc.
- Persons who are Entitled to partition:-
Under Dayabhaga Law, every adult coparcener, male or female is entitled to enforce a partition of the coparcener property.
A, a Hindu governed Dayabhaga school dies leaving two sons, B and C. On the A’s death B and C inherit the property left by A as coparcener B dies leaving a son D. On B’s death, D inherit B’s share in the coparcenary property as B’s heir and he comes coparcener with C. C dies next leaving a widow W. On C’s death W inherit C’s share in the coparcener with D. The position at this stage is of two members namely D and W i.e. One male and one female.
W sues D for the Partition.
Is She entitled to do so?
Yes, and the court will allot to her a moiety of the joint property both moveable and immovable.
- Sons, Grandsons, Great Grandsons-
Under Dayabhaga law, a son is not entitled to a partition of the coparcenary property against his father. The reason is that a son, according to that law does not acquire by birth an interest in ancestral property. The same rule applies to grandsons and great-grandsons.
- Illegitimate Sons –
According to all schools the illegitimate son of the regenerate classes is not entitled to any share of the inheritance nor to any share on the partition. They are entitled to maintenance only under the Hindu Adoption and Maintenance Act.
Where a fractional share in a property, which forms part of a joint estate has been sold the purchaser may sue for partition of that property only and for possession of the share brought by him without asking for the partition of the whole joint estate4.
According to Mitakshara law, though a wife can-not, she demands a partition between her husband and his sons. No such question can arise under Dayabhaga law, for according to that law a father is the absolute owner of his property, whether ancestral or self-acquired and the sons not being entitled to any interest in his property in his lifetime can-not demand a partition against him5.
Since a Father according to Dayabhaga law has absolute power of disposal over his property, whether ancestral or self-acquired he may in his lifetime divide his property among his sons in such proportions as he likes. He is not bound to divide it equally between them, not even the ancestral property.
As under Mitakshara law, so under Dayabhaga law a mother can-not herself demand a partition but if a partition takes place between her sons, she is entitled to a share equal to that of a son after deducting the value of Shridhana if any, which She may have received from her husband or father in law6. Reference may also be made to the Hindu women’s right to property Act, 1937.
If a son dies before partition, leaving the mother as his heir the matter is entitled upon a partition between her surviving sons to receive a share as heirers of her deceased son as well as a share in her own right. The share which she is entitled to receive as the heirs of her deceased son, is not stridhana, for property inherited by a mother is not shridhana at all and it is not, therefore, to be taken into account in determining the value of her share on partition7.
- Sons, Grandsons, Great Grandsons8–
Every adult coparcener is entitled to demand and sue for partition of the coparcener is entitled to demand and sue for partition of the coparcenary property at any time. In Bombay, it has been held that without the assets of his father a son is not entitled to a partition if the father is joint with his own father, brothers or other coparceners, though he may enforce a partition against the father if the father is separate from them. The other High court do -not recognize any such exception.
The Hindu Succession Act was amended in 2005 by virtues of this Amendment daughter of a coparcener have been conferred equality of status as coparcener along with the sons and the persons entitled to share would thus have to be read accordingly.
- Minor Coparceners9–
Where a suit is brought on behalf of a minor coparcener for partition the court should not pass a decree for partition unless the partition is likely to be for the benefit of the minor by advancing his interest or protecting them from danger.
For the right of a widow, a predeceased son’s widow and the widow of a predeceased son of the predeceased son of the coparcener.
- Adopted son –
Adopted son having all rights as a real son under the Mitakshara Partition.
The concept of Mitakshara and Dayabhaga play a prominent rule under the Hindu law partition. So, by this article we have been aware of the concept of Joint Family property under the Mitakshara and Dayabhaga School, Coparcenary idea under Hindu law was mainly by the male associate of the family where just children grandsons, and great-grandsons who have right by birth, who has an interest in the coparcener property. No feminine of Mitakshara coparcener 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 the father-son, son’s son, son’s, son’s, son. The existence of Dayabhaga coparcenary comes only after the death of the Father, by that the son will inherit the property of him and constitute 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 heir male of females can succeed in his property and become coparcener. Here each coparcener takes a definite unity of possession.
- Sir Dinshaw Farding Mulla, 22nd edition, ChapterXVIII, page537.
- Dayabhaga Chapter-I, Paras 8-9.
- Durga Nath Versus Chintamoni (19-04) 31 Cal 214.
- Barahi Versus Debkanini (1893)20 cal 682.
- Bhattacharaya’s Hindu law, Second edition, Page361 Mitra’s law of joint property and Partition Page 320 Saraloh Versus Bhoobun (1888 ) 15 cal 292, p 306-307.
- Kishori Versus Moni Mohan (1886)12 cal 165.
- Jagomohan versus Sarodamoyee (1878)3 cal 149.
- Sir Dinshaw Farding Mulla, 22nd edition, Chapter XVI Partition and Reunion, Mkitakshara Law page 490.
- Sir Dinshaw Farding Mulla, 22nd edition, Chapter XVI Partition and Reunion, Mkitakshara Law, Minor Coparcener, page 491.
- 10 Sir Dinshaw Farding Mulla, 22nd edition, Chapter XVI Partition and Reunion, Mkitakshara Law, Widow page 498.
This Article is written by Manpreet Kaur, Practising lawyer District and Session Court, Faridkot, Punjab
Also Read – Explain In Detail The Character Of Mitakshara And Dayabhaga Coparcenary. Difference Between Them.