Points of Similarity:
The followings are the points of similarity between the two systems:
(1) According to the both systems, the true test of partition lies in the intention to separate.
(2) The purchaser of a fractional share in the property of the joint family may sue for partition according to both schools.
ADVERTISEMENTS:
(3) According to both the systems, a grand-mother cannot herself demand a partition.
(4) Brothers take equal shares on partition in both the schools of Hindu law.
(5) In both the systems each branch takes per stirpes as regards every other branch but the members of each branch take per capita as regards each other.
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Points of Differences:
ADVERTISEMENTS:
The following are points of distinction between the two systems:—
(1) In Mitakshara, partition consists in ascertaining and defining the shares of coparceners whereas in the Dayabhag, partition consists in actual division of the property.
(2) In Mitakshara, partition is effected by the expression of an irrevocable intention to separate whereas in Dayabhag, partition is not effected unless there is division of shares and specific shares are assigned to each coparcener.
(3) In Mitakshara, mere institution of partition suit operates a partition whereas in Dayabhag, a partition is complete where decree is passed by the court.
ADVERTISEMENTS:
(4) According to Mitakshara, sons, grandsons and great grandsons can demand partition in the coparcenary property against three immediate ancestors whereas in Dayabhag, they (sons, grandsons and great grandsons) cannot demand partition.
(5) In Mitakshara, the wife (widow) cannot herself demand partition but is entitled to a share whereas under the Dayabhag system, no such right arises so long the husband is alive.
(6) In Mitakshara; step-mother is entitled to a share even when she is sonless whereas in Dayabhag, sonless step-mother is not entitled to a share.