ABSTRACT

TITLE : DAYABHAGA AND MITAKHARA COPARCENERS INTREST

DAYABHAGA COPARCENARY:

Under the Dayabhaga School of Hindu Law there is no right by birth. So during the father’s life-
time between the father and the sons there is no coparcenary. When the father dies, his sons
constitute a coparcenary. In this School of Hindu Law each coparcener has a defined interest. It
can be alienated. It does not pass by survivorship. for during the father’s life-time the son is not
a coparcener. Under the Dayabhaga system, on the death of one coparcener his heirs become
coparceners. So even females may in this way become coparceners.

The alienee under both systems gets an equity which can be worked out in a suit for partition.
But under the Dayabhaga Law, the alienee can ask for joint possession along with the
coparceners. This is because he has a defined share. The Dayabhaga Law does not confer on
the son a right by birth and so he has no right of partition as against the father. The powers of
the Manager are the same under both systems. But under the Dayabhaga the coparceners can
call upon the Manager to account while under the Mitakshara the Manager is not liable to
account for past management.

MITAKSHARA COPARCENARY:

The Mitakshara coparcenary arises during the life-time of the father itself and his sons have
right by birth. In the Mitakshara coparcenary the coparcener’s share is not defined. It fluctuates
with births and deaths of coparceners. It passes by survivorship. So the power of alienation
either does not exist or is recognised only a limited extend (as in Bombay and Madras). On the
birth of a son to a coparcener, the son also becomes a coparcener under the Mitakshara
system. This is not so under the Dayabhaga for during the father’s life-time the son is not a
coparcener. Since there is no defined share, a suit for partition is the only appropriate remedy of
the alienee. Under the Mitakshara as administered today the sons can institute a suit for
partition even against their father. In the absence of fraud, under the Mitakshara the liability of
the Manager is only to account for the assets existing at the date of the partition.
 SYNOPSIS

TITLE: DAYABHAGA AND MITAKHARA COPARCENERS INTREST

INTRODUCTION:

Under dayabaga school, apparently a joint family may come into existence the same way as
under the mitakshara school. But the fact of the matter is that there is no joint family under
dayabaga school in the sence in which it exists in mitakshara school.

Similarly, there is no coparcenary consisting of father, son, son’s son, and son’s son’s son.
Dayabaga coparcenary comes into existence for the first time on the death of the father when
sons inherit their father’s property, they constitute a coparcenary.on the death of the father the
succession is per stripes, i.e., branch of each of his son takes an equal share. But this does mean
that the share on succession belongs to each branch.

SIGNIFICANCE:

Unmarried women, until 1956 only had the right of maintenance from the joint property, which
included only the marriage expenses. The 1937 legislation allowed a widow to move into the
shoes of her deceased husband and inherit his share. However, she does NOT become a
coparcenary to this joint property.

OBJECTIVE:

The objective of the study is In Dayabhaga system, one is entitled to succeed the property after
the death of the male holder. Till then, he is just an heir. Under Mitakshara coparcenary, women
cannot be coparcenars. A wife, under hindu law, has a right of maintenance out of her husband’s
property. Yet she is not a coparcenar with him. Even a widow succeeding to her deceased
husband’s share in the joint family, under the Hindu Womens (right to property) Act, 1937, is
not a coparcenary.
SCOPE:

The scope of the study restricts to dayabaga and mitakshara law of coparcenary and the
alienation of coparcenary is covered in the project.

RESEARCH METHOD: The reaserch methodology is doctrinal reasearch.

REASEARCH QUESTON:

1. What is the effect of Section 6 of the Hindu Succession Act, 1956 on Mitakshara
Coparcenary?
2. What is the difference between mitakshara and dayabaga coparcenary?

HYPOTHESIS:

It is true that section 6 of the Hindu Succession Act, 1956 has intensively affected the entire
concept of Mitakshara coparcenary and the rule of survivorship, but they have not been
abolished. They have been modified to the extent of the proviso.

LITERATURE REVIEW:

AKSHAY KOUDAL, Effect of Section 6 of the Hindu Succession Act, 1956 on Mitakshara
Coparcenary and the Rule of Survivorship:

In view of large number of female heirs in class I of the Schedule, it is generally not possible to
find a family which does not have female relatives of class I, and thus gives a room to the rule of
survivorship. As a matter of fact this situation will scarcely arise and hence it can be said that
Mitakshara rule of survivorship has been given a mortal blow in the scheme of present Hindu
Succession Act

CONCLUSION:

Formation of Mitakshara coparcenary – A single person cannot form a coparcenary. There

should be at least two male members to constitute it. Like a hindu joint family, the presence of a
seniormost male member is a must to start a coparcenary. A minimum of two members are
required to start and to continue a coparcenary. Moreover, the relation of father and son is
essential for starting a coparcenary. For example, a hindu male obtains a share at a time of
partition from his father and then gets married. Till the son is born, he is the sole male in this
family, but he alone will not form a coparcenary. On the birth of his son, a coparcenary
comprising of him and his son, will come into existence. When this son gets married, and a son
is born to him, the coparcenary will comprise the father F, his son S, and his grandson SS.

CONTENTS:

1. INTRODUCTION
2. DAYABAGA COPARCENARY
A. EACH COPARCENAR TAKE A DEFINE SHARE
B. UNITY OF POSESSION
C. DOCTRINE OF SURVIVORSHIP NOT APPLICABLE
D. JOINT AND SEPARATE FAMILY PROPERTY
E. COPARCENERS POWER OF ENJOYMENT AND ALIENATION OF HIS SHARE
3. COPARCENERS POWER OF ALIENATION
A. INVOLUNTARY ALIENATION
B. VOLUNTARY ALIENATION
C. SOLE SURVIVING COPARCENARY RIGHT OF ALIENATION
D. COPARCENARY RIGHTS TO CHALLENGE ALIENATION
E. IN THE WOMB, AFTER BORN COPARCENER AND ADOPTED SON
F. MODE OF CHALLENGE
4. MITAKSHARA COPARCENARY
5. SUCCESSSION TO A MITAKSHRA COPARCENER
6. CONCLUSION
7. REFFERENCES