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FORMATION AND INCIDENT UNDER THE COPARCENARY PROPERTY UNDER DAYABHAGA AND MITAKSHARA

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This article is written by Kartik Prabhudesai of 2nd year of BA LLB of Nmims Navi Mumbai, School of Law, an intern under Legal Vidhiya

Abstract

This article examines coparcenary rights in Hindu law, focusing on the Mitakshara and Dayabhaga schools. It explores historical origins, legal frameworks, and recent amendments, notably the 2005 Hindu Succession Act. The Mitakshara school, rooted in birthright, underwent a paradigm shift with gender-inclusive reforms. Conversely, the Dayabhaga school bases coparcenary on the death of the last possessor. The article highlights key incidents, rights, and partition processes, offering a succinct analysis of the legal and societal implications within the Hindu legal system.

Keywords

Coparcenary Rights, Hindu Law, Mitakshara School, Dayabhaga School, Gender Equality

Introduction

The designation “Hindu” originates from a term used by outsiders, specifically the Persians, to describe the people residing to the east of the Indus River, which they referred to as the “Hindu” river. The word itself is derived from “Sindhu,” the ancient Sanskrit name for the Indus River. Historically, the label “Hindu” was a broad geographical marker that applied to all individuals living in the Indian subcontinent, without regard to their specific caste or religious beliefs. Over the centuries, however, the term “Hindu” began to take on a religious dimension, eventually becoming associated with the diverse range of practices, beliefs, and cultural traditions that constitute the religion known today as Hinduism.

When examining Hindu law, it is essential to understand the two principal schools that govern its interpretation: the Mitakshara and the Dayabhaga schools. These schools offer distinct frameworks for interpreting Hindu law, particularly in matters related to joint family property and inheritance. The Mitakshara school, which is prevalent in most parts of India, is characterized by the concept of coparcenary property, where male descendants inherit a right to the family property by birth. On the other hand, the Dayabhaga school, which is followed in regions like West Bengal and Assam, stipulates that inheritance rights are acquired only after the death of the property’s owner, rather than by birthright. These differing perspectives have profound implications for the distribution of property and the legal rights of family members within the Hindu joint family system.

Coparcenary

Coparcenary refers to a specific subset of individuals within a joint family system who are entitled to an interest in the joint or coparcenary property by virtue of their birth. This group is defined by a lineage that starts with a common male ancestor and extends to his direct male descendants up to the fourth degree, including the ancestor himself. Essentially, the coparcenary encompasses only those family members who are directly related in the male line and are within four degrees of kinship from the common ancestor. This concept is pivotal in determining the legal rights and interests of family members in the property of a Hindu joint family.

In the landmark case of Moro Vishvanath v. Ganesh Vithal[1], the Supreme Court provided a definitive interpretation of the concept of coparcenary under Mitakshara law. The court observed that the coparcenaries hold the coparcenary property in a manner akin to a quasi-corporate entity, maintaining collective possession and management of the property on behalf of all members of the Undivided Family. This collective stewardship underscores the unique legal and familial structure inherent in the Mitakshara system of coparcenary property rights.

Mitakshara School

Within the Mitakshara School’s Coparcener system, individuals are vested with an interest in the joint Hindu family property by virtue of their birth. However, until a formal partition occurs, a coparcener’s status and interest remain inherently uncertain and subject to change—expanding with the demise of members and contracting with new births within the family. This dynamic is rooted in the ‘ownership theory,’ which acknowledges both a collective interest and a unified ownership among the coparceners under the Mitakshara School’s legal framework.

The Mitakshara School predicates its inheritance laws on the principle of propinquity, favoring the nearest blood relatives for succession. This principle implies that, for instance, sons would naturally inherit property due to their direct blood relation to the deceased parent, thereby excluding women from the inheritance process.

The Mitakshara school acknowledges two categories of inheritance: ‘Apratibandhadaya,’ which refers to property inherited from direct male lineage such as one’s father or grandfather, and ‘Sapratibandhadaya,’ which pertains to property inherited from other paternal relations like uncles and brothers. These distinctions underscore the nuanced approaches to property rights within the Mitakshara school.

In the pivotal case of Thammavenkata Subbamma v Thamma Rattamma, the Supreme Court underscored that the Mitakshara Coparcenary is characterized by shared ownership and mutual interest among the coparceners. The court affirmed that although the individual share of a coparcener in the coparcenary property is indefinite until partition, it is nonetheless real and quantifiable, subject to increase upon the death of a coparcener and to decrease with the birth of a new coparcener. This ruling solidified the legal understanding of the fluctuating nature of coparcenary interests under the Mitakshara School.

Formation

 Under the Mitakshara school, a coparcenary is established at birth, granting any male offspring immediate status as a coparcener within the joint family. This collective includes the father, his sons, and their direct male lineage, all of whom hold rights to the ancestral property.

The Hindu Succession Amendment Act of 2005 represents a significant stride towards dismantling gender-based disparities and biases that have historically been entrenched in Indian familial structures, thereby enhancing the societal status of women.

In the landmark judgment of Shreya Vidyarthi v. Ashok Vidyarthi and Ors., the Supreme Court affirmed that the 2005 amendment was enacted with the intent to honor and elevate the position of female family members. Consequently, it was decreed that daughters, akin to sons, acquire the status of coparceners by birth.[2]

Post the enactment of the Hindu Succession Amendment Act, of 2005, daughters under the Mitakshara School are accorded the status of coparceners. Section 6(1) of the Act explicitly states that daughters shall be deemed coparceners by birth, in the same manner as sons, thereby ensuring equal rights in the coparcenary property.

In the pivotal case of Danamma @ Suman Surpur & Anr. v Amar & Ors., 2018[3], the Supreme Court elucidated that the Hindu Succession Amendment Act, 2005, extends to all daughters of living coparceners as of the date the Act was enforced. Furthermore, the Court affirmed that daughters are endowed with coparcenary rights by birth, equating their status in this regard with that of sons.

Incidents

In the Mitakshara School, a coparcener’s entitlement to the joint family property is established by birth, signifying a coparcenary status from the outset. However, this interest remains indeterminate and subject to change until a partition is executed. The interest fluctuates, expanding upon the demise of a coparcener and contracting with the birth of new members within the family. This system operates on the ‘principle of ownership by birth,’ characterized by a collective interest and shared ownership among coparceners. Additionally, a coparcener holds the right to request a partition and claim their respective share of the property.

Dayabhaga School

The Dayabhaga Joint Family epitomizes the collective living of family members, sharing in aspects such as sustenance, religious practices, and property. The Dayabhaga School’s legal framework is predicated on the doctrine of spiritual efficacy, which governs its succession rules. This principle posits that inheritance rights are accorded to the individual who confers the greatest spiritual benefit upon the deceased, over others who may offer lesser religious merit.

Distinctively, the Dayabhaga School does not differentiate between joint family property and individual property, as all property is subject to inheritance principles. Under this school, the delineation of coparcenary shares is definitive and remains unaffected by the death or birth of members. Upon a coparcener’s passing, their property is bequeathed to the heirs in accordance with inheritance laws.

Conversely, the Mitakshara School establishes a coparcenary at the birth of a son, instantly granting both father and son the status of coparceners. This school adheres to the ‘ownership theory,’ where the coparcenary is founded upon the son’s birth. In contrast, the Dayabhaga School lays the foundation of a coparcenary upon the father’s demise. As long as the father lives, there exists no coparcenary; it is only formed posthumously, leaving behind two or more male members to constitute the new coparcenary.

Formation

 The Dayabhaga school takes a divergent stance on coparcenary, minimizing its significance. Here, the joint family property is collectively owned by the family unit, with each member possessing specific rights.

Incidents

The Dayabhaga School confers interest in the property to a coparcener only after the demise of the last owner, typically the father. As long as the father lives, he retains complete control over his property, be it ancestral or self-acquired. This implies that during the father’s lifetime, no coparcener may demand a partition or assert a claim to a share of the property. The Dayabhaga School is founded on the ‘principle of ownership by death,’ where there is no shared community of interest, yet unity of possession is maintained within the school’s framework.

Partition

Partitioning entails the distribution of the joint family estate among the entitled members, leading to the dissolution of the joint family structure and the emergence of individual nuclear families or multiple joint families. Members of a joint family have the right to request partitioning and claim their respective shares. Reunification or further division can only occur among those family parties who have established rights over the property.

The coparcenary property is subject to partition, whereas separate property, which solely belongs to an individual owner, is not. As per the ruling in Poonam Mishra vs. Rajkumari Mishra[4], property acquired subsequently, even with joint funds, is considered self-acquired and is therefore not subject to partition.

Dayabhaga School

Under the Dayabhaga School, sons do not inherit an interest in ancestral property by birth and thus cannot demand a partition of such property from the father, a son cannot claim a division of his father’s joint property, as he does not acquire an interest in ancestral property by birth. This principle also applies to grandsons and great-grandsons. In Dayabhaga law, partition signifies the allocation of joint family property according to the specific shares already held in common by the family members. This process involves the division of joint ownership into individual portions. The Dayabhaga School is characterized by the unity of possession, in contrast to the Mitakshara School, which is defined by the unity of ownership.

Following the Dayabhaga School, any adult coparcener, regardless of gender, can initiate a partition of the coparcenary property. Prior to the 2005 amendment of the Hindu Succession Act, women under the Mitakshara School were not recognized as coparceners and thus had no right to partition. However, women can now be coparceners and are entitled to partition.

Mitakshara School

Under Mitakshara law, a son, grandson, and great-grandson have the right to demand partition from their three immediate ancestors.

Under the Mitakshara School of Law, partition is the process of equitably dividing the joint family property among the members, effectively transforming the coparcenary’s variable interests into distinct shares. This halts the fluctuation of interests and solidifies the value of the property at the time of partition. As per Lord Westbury’s ruling in Approvier v. Ram Subba Aiyer, no individual member can claim a specific share of the undivided property while it remains joint.

Further Again as earlier mentioned, in Moro Vishvanath v. Ganesh Vithal, the concept of coparcenary under Mitakshara law was defined as a collective ownership. The entire family of coparceners holds the property, and no single member can assert a fixed share of the undivided estate. A coparcener’s interest is inherently variable, increasing with the death of members and decreasing with new births.

A coparcener is entitled to a definite share only upon partition. The undivided coparcenary interest aptly represents a coparcener’s stake in the property. Under Mitakshara law, when a coparcener passes away, their interest is immediately assimilated into the shares of the surviving coparceners, thus altering the distribution in favor of the remaining members.

Conclusion

In conclusion, Dayabhaga and Mitakshara¹are the two main schools that comprise the Hindu legal system. Every school interprets coparcenary differently. Four generations of male ancestry are considered coparcenary under Mitakshara; however, daughters now have equal coparcenary rights after the 2005 Amendment Act, as demonstrated by the Vineeta Sharma v. Sharma Rakesh.[5]

The development of coparcenary is a reflection of important legal changes, most notably the goal of the 2005 Amendment Act to eradicate gender discrimination and strengthen the place of women in society. By contrast, the Dayabhaga school bases the right to coparcenary property on the death of the last possessor and does not adopt the four-generation structure.

The traditional Mitaksharan framework provides strong support in hard times, allowing the joint family to be relied upon. But it also raises the risk of fostering dependency. However, Dayabhaga’s liberal perspective is more in line with current economic independence and individualistic trends, indicating that it may take precedence in the legal system going forward.

References

[1] Moro Vishwanath v. Ganesh Vithal, 10 Bom HCR 444

[2] Lexpeeps (2020) Formation and incident under the COPARCENARY property: Mitakshara and, Lexpeeps.

[3] Danamma @ Suman Surpur vs Amar on 1 February, 2018.

[4] AIR 1995 Ori 284, 1995 I OLR 606

[5] Vineeta Sharma v. Rakesh Sharma, 11 August 2020

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