Difference of opinion relating to inheritance and successions according to Dayabhaga and

Mitaskhara Family
 INTRODUCTION
The codified Hindu law lays down uniform laws for all the Hindus in the society 1. It leaves
no scope for the existence of two schools of Hindu Law in the codified laws. Their relevance
lies only in those areas in which there is no defined and codified law. It was in the era of
digests and commentaries that these schools originated in.

1. Mitakshara School
2. Dayabhaga School

Mithakshara School

This school owes its name to Vijnanaeshwara’s commentary on the Yajnavalkya smriti by the
name of ‘Mitakshara.’ This school prevails in the whole of India except Assam and
Bengal2. This inspite of being a running commentary is also a digest of practically all the
leading Smritis and the deals with all the titles of Hindu law. The date of composition is
placed by Kane from A.D. 1100-1200. The word Mitakshara literally means a ‘brief
compendium’.

The Mitakshara School follows the law of inheritance based on the Principle of

Propinquity i.e. on the nearness of blood relationship. However, full effect to this was not
given. The Hindu Succession Act 1956 has given full effect to the same principle3.

Doctrine of survivorship4: the property after the death of the common ancestor devolves by
the survivor. The sons of the family have a birth right in the property by virtue of the
following two rules:

 Females will not inherit.

 Agnates to be preferred over cognates.

Dayabhaga School

This school is written by Jimutvahana in around the latter half of the 12 th century, the
Dayabhaga is not a commentary on a specific work but a digest of all the Codes. It was a part
of a larger work titled “Dharmaratna” and is a valuable work on the laws of inheritance and
succession. Jimutvahana’s doctrines of inheritance, succession and joint family system
controvert some basic rules of Mitakshara by Vijananeshwara. Without accepting the set of
propositions laid down by other commentaries, Jimutvahana deals with the subject of
inheritance and succession with an objective science with a forthright and direct approach. He
appeals to reason and logic and not merely to precepts, precedents or postulations. Examining

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the roots by digging up various standpoints, he plunges into the heart of the subject to come
up with doctrines that were close to practically and rationally5.

CONCEPT OF COPARCENARY

Coparcenary is “unity of title, possession and interest”. Hindu Coparcenary is a much

narrower body than a Hindu joint family it includes only those persons who acquire by birth
an interest in the coparcenary property, they being the sons, grandsons, and great-grandsons
of the holders of the property for the time being.

The Black’s law dictionary gives a more comprehensive explanation of the term coparcenary.
It says, “such estate arises where several take by descent from same ancestor as one heir, all
coparceners constituting but one heir and having but one estate and being connected by unity
of interest and of title”6. A species of estate, or tenancy, which exists where lands of
inheritance descend from the ancestor to two or more persons. It arose in England either by
common law or particular custom. By common law, as where a person, seized in fee- simple
or fee-tail, dies, and his next heirs are two or more females, his daughters, sisters, aunts,
cousins, or their representatives; in this case they all inherit, and these coheirs, are then called
“coparceners”, or, for brevity “parceners” only. By particular custom, as where lands
descend, as in gavelkind, to all the mates in equal degree, as sons, brothers, uncles etc…An
estate which several persons hold as one heir, whether male or female. This estate has the
three unities of time, title and possession; but the interests of the coparceners may be
unequal.”[8]

In Dharmasastra coparceners are referred to as Sahadaee. The term coparceners came to be

used as a result of influence of Western Jurisprudence. Therefore, the present concept is not
very difficult from the earlier one. The justification of coparcenary according to the
Dayabhaga School is that those who can offer funeral oblations (Pindh-daan) are entitled to
the property. The concept of Pindh-daan is that the person who offers funeral oblations share
the same blood with the person to whom he is offering a Pindh. A coparcenary is purely a
creation of law; it cannot be created by act of parties, except by adoption. In order to be able
to claim a partition, it does not matter how remote from the common ancestor a person may
be, provided he is not more than four degrees removed from the last male owner who has
himself taken an interest by birth.[9]

Hindu Law of Succession: any part of the Hindu law which is yet uncodified is governed by
the two Schools i.e. the Mitakshara and the Dayabhaga. According to the Mitakshara School,
there is unity of ownership – no person has a definite share as his interest is always
fluctuating with the births and deaths in the family. The whole body of coparceners is the
owner. There is unity of possession and enjoyment. Further, while the family is joint and
some coparceners have children and others have few or none or some are absent, they cannot
complain at the time of partition about some coparceners having exhausted the whole income

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and cannot ask for an account of past income and expenditure. Katyayana expressly states
that the joint family property devolves by survivorship that is on the death of a coparcener his
interest lapses and goes to the other coparceners.

The difference between Mitakshara and Dayabhaga School’s conception of coparcenary: The
conception of coparcenary under the Dayabhaga School is entirely different from that of the
Mitakshara School. Under the Dayabhaga School, sons do not acquire any interest by birth in
ancestral property, but the son’s right arises only on the father’s death and the sons take
property as heirs and not as survivors.

However, the coparcenary in Hindu law is not identical to the coparcenary as understood in
English law. Thus, in the case of death of a member of coparcenary under the Mitakshara
law, his interest devolves on the other members by survivorship while under English law, if
one of the co-heirs jointly inheriting properties dies, his or her right goes to his or her legal
heirs.

DIFFERENCE BETWEEN MITAKSHARA AND DAYABHAGA

SCHOOLS

The differences between the Dayabhaga and the Mitakshara schools of law may be
categorized under the following:-

Formation of Coparcenary

A Mitakshara coparcenary is a creation of law and cannot be formed by agreement between

the parties. A Dayabhaga coparcenary on the other hand stems from a desire of the
coparceners to live together.

Joint Family

According to the Mitakshara law school a joint family refers only to the male member of a
family and extends to include his son, grandson and great-grandson. They collectively have
co-ownership/Coparcenary in the Joint Family. Thus a son by birth acquires an interest in the
ancestral property of the joint family. Under the Dayabhaga law school the son has no
automatic ownership right by birth but acquires it on the demise of his father.

In the Mitakshara school the father’s power over the property is qualified by the equal rights
by birth enjoyed by a son, a grandson and a great grand -son. An adult son can
demand partition during his father’s lifetime or his three immediate ancestors.  He has a say
in the disposition of the family property and can oppose any unauthorized disposition of
ancestral or family property .This is not possible under the Dayabhaga School as the father
has overall and uncontrolled power over the family property till death.
Coparcenary/Co-ownership

Under the Mitakshara law school all the members of the Joint family enjoy coparcenary
rights during the father’s lifetime. Under Dayabhaga School when the father is alive the sons
do not have coparcenary rights but acquire it on the death of the father. In the Mitakshara
School the coparcener’s share is not defined and cannot be disposed. In the Dayabhaga the
share of each Coparcener is defined and can be disposed.

Coparcenary between two Generations of Male Members

While under the Mitakshara law a coparcenary may consist of father and son or father and
sons, between brothers, grandfather and grandsons or even a father, under the Dayabhaga law
a coparcenary cannot consist of a father and son or grandfather and grandsons or a single
room. For eg. A family comprises father F and his son A and the two sons of A, B, C. On the
death of F, A, B and C cannot form a coparcenary under the Dayabhaga law as a single son
cannot form a coparcenary and he will inherit the property of the father as an absolute owner
with no right passing to B and C over this property. However, if the family is governed by the
classical law Mitakshara law, on the death of the father F, A takes the property with the rights
of B and C in it.
F

A
B C

Under the Dayabhaga law there cannot be coparcenary between a male ancestor and his male
descendants, but that does not mean that there cannot be a coparcenary if more than two
generations are present. Suppose family comprises the father and his two sons A and B. On
the death of A, his two sons C and D will take a fixed half each of the share of A, and if no
partition takes place C, D, and B i.e., nephews and uncle, will form a coparcenary.
F

A B

C D

Partition

While both the Mitakshara and the Dayabhaga schools hold that the true test of partition is in
the intention to separate the manifestation of this intention is different in each of the schools. 
In the case of the Mitakshara School the intention involves holding the property in defined
definite shares while in the Dayabhaga School there has to be a physical separation of the
property into specific portions and assigning of separate share to each coparcener.
In the Mitakshara system none of the members of the coparceners can claim a definite
physical share of the joint property. So partition in this system involves in ascertaining and
defining the share of the coparcener i.e. In the numerical division of the property. In the
Dayabhaga system each of the coparcener has a definite share in the joint family property
even though the family is joint and undivided and the possession is common. So partition in
this system involves the physical separation of the joint property into the separate shares of
the coparceners and assigning to each of the coparceners the specific portion of the property.

Rights of Woman

In the Mitakshara system the wife cannot demand partition. She however has the right to a
share in any partition affected between her husband and her sons. Under the Dayabhaga this
right does not exist for the women because the sons cannot demand partition as the father is
the absolute owner.

In both the systems, in any partition among the sons, the mother is entitled to a share equal to
that of a son. Similarly when a son dies before partition leaving the mother as his heir, the
mother is entitled to a share of her deceased son as well as share in her own right when there
is a partition between the remaining sons.

Absolute Powers of Disposal of Shares

The father has an absolute right of disposal over the property that he holds so long as he is
alive. Similar is the situation of each coparcener. Since the share of each of the coparceners is
a fixed share, his powers of alienation over this share are absolute 7. He can dispose of his
share in the property by way of sale, gift, lease8 or even a Will.

CONCLUSION

The law regarding the coparcenary in the joint Hindu family has evolved over time. Before
independence various legislations were passed regarding coparcenary. The main change that
has been brought after the independence was in 2005 when the Hindu Succession
(Amendment) Act, 2005 was enacted. This act changed the face of the Hindu Succession Act
by giving equal rights to women as that of the men. The women too can now be the
coparceners.

It is necessary to understand that if equality exists only as a phenomenon outside the

awareness and approval of the majority of the people, it cannot be realized by a section of
women socialized in traditions of inequality. Thus there is need to create social awareness
and to educate people to change their attitude towards the concept of gender equality. The
need of the hour is also to focus attention on changing the social attitudes in favour of
equality for all by enacting a uniform law.

7
Kounla v. Ram Huree, (1827) 4 Beng Sel R 196; Anunchand v. Kishen, (1805) 1 Beng Sel R 115.
8
Ram Debul Lall v. Mitterjeet Singh, (1872) 17 WR 420.
The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy;
efforts to enhance social awareness of the advantages to the whole family if women own
property; and legal and social aid for women seeking to assert their rights, are only a few of
the many steps needed to fulfill the change incorporated in the Act.

The Mitakshara system is Conservative. It provides good security in times of difficulties as a

member can rely on the joint family. However, sometimes a member can become a parasite.
The Dayabhaga system is more liberal. Among the two the Dayabhaga is more likely to last
in modern times with the growth of individualism, individual enterprise and economic
compulsions.