The concept of a coparcenary under the Dayabhaga system is entirely different from the one under the Mitakshara law.
Hence, the distinguishing features of a Dayabhaga joint family will now be considered, whilst considering briefly the points of distinction between the two.
1. Sons do not acquire any right by birth:
ADVERTISEMENTS:
Under the Mitakshara law as it existed prior to the 2005 Amendment of the Hindu Succession Act, each son acquired, at his birth, an interest equal with his father, in all ancestral property held by the father, and on the death of the father, the son got this property, not as his right, but by survivorship.
However, under the Dayabhaga law, the sons do not acquire any interest in the ancestral property by birth. Their rights arise, for the first time, on the death of the father. Even on his death, they take the father’s property, whether separate or ancestral, as heirs, and not by survivorship.
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Since the sons do not take any interest in the ancestral property as long as the father is alive, there can be no coparcenary, in the strict sense of that term, between the father and his sons under the Dayabhaga law.
2. Absolute power of the father to dispose of ancestral property:
Since under the Dayabhaga law, the sons do not acquire any interest by birth in the ancestral property, the father can dispose of such property (whether movable or immovable) by sale, gift, will or otherwise, in the same way as he can dispose of his separate property.
ADVERTISEMENTS:
As seen in the last Chapter, under the Mitakshara law, the powers of a father to dispose of ancestral property are limited. However, Section 30 of the Hindu Succession Act, 1956, enables a male Hindu in a Mitakshara coparcenary to dispose of his interest in a coparcenary property by will. This Act also recognises, in effect, the right of a male Hindu governed by the Dayabhaga law to dispose of his interest in coparcenary property by will.
3. No right of partition or accounts against the father:
Under the Dayabhaga law, the sons cannot demand a partition of ancestral property from the father (which they can do under the Mitakshara law). Nor can they call for accounts of the management from the father. Under the Dayabhaga system, the father is the absolute owner of all the property, and he can manage it in any way he likes.
4. Concept of ancestral property under the Dayabhaga law:
Just as under the Mitakshara law, so also under the Dayabhaga law, ancestral property is that property which is inherited from a father, father’s father, or father’s father’s father. However, as seen above, under the Dayabhaga law, the children of a Hindu do not acquire any interest in such property by birth, as they do under the Mitakshara law.
5. Coparceners according to the Dayabhaga law:
As seen earlier, under the Mitakshara law as it prevailed before the 2005 Amendment, the foundation of a coparcenary first laid on the birth of a son in the family. Thus, if a Hindu was governed by the Mitakshara law, and a son was born to him, immediately the father and son became coparceners.
ADVERTISEMENTS:
On the other hand, according to the Dayabhaga law, the foundation of a coparcenary is laid on the death of the father. As long as the father is alive, there is no coparcenary, in the strict sense of that term, between the father and his male issues. It is only when he dies, leaving two or more male issues, that the coparcenary is first formed.
A coparcenary under the Dayabhaga law can, however, consist of males as well as females. It will be remembered that under the Mitakshara law before the 2005 Amendment, no female Hindu could be a coparcener, although she can be a coparcener today. However, even under the Dayabhaga law, a coparcenary cannot start with females. Thus, if a person dies leaving two or more daughters, such daughters would not constitute a coparcenary.
The effect of the Hindu Succession Act, 1956, is not to abolish or disrupt the Dayabhaga joint family. The only result is that the share of a coparcener in the coparcenary property will devolve by succession according to the provisions of that Act upon the heirs specified in that Act.
Thus, A dies, leaving three sons, В, C, and D. All of them will form a coparcenary, succeeding together to their father, A.
However, take a case like this.- A dies leaving a son B, who has two sons, С and D. In this case, the son, B, will not form a coparcenary along with the grandsons, С and D. В only succeeds to the separate or ancestral property left by A, in which property С and D do not get any interest by birth. However, when В dies, С and D will together succeed to such property, and they will form a coparcenary under the Dayabhaga law.
6. Coparcenary property:
Just as under the Mitakshara law, so also under the Dayabhaga law, coparcenary property may consist of ancestral property, or of joint acquisition or of property thrown into the common stock, or property which represents accretions to such property.
However, under the Dayabhaga law, every coparcener takes a definite share in the coparcenary property. Like his separate property, it passes by succession to his heirs and not by survivorship to the remaining coparceners. Unlike under the Mitakshara law, the children of the coparceners do not take any interest by birth in the coparcenary property.
7. Each coparcener takes a defined share:
The essence of a coparcenary under the Mitakshara law is unity of ownership. On the other hand, the essence of a coparcenary under the Dayabhaga law is unity of possession, and there is no unity of ownership at all.
The ownership of the coparcenary property, under the Dayabhaga system, is not in the whole body of coparceners. Rather, every coparcener takes a defined share in the property, and he is the owner of that share. Unlike the Mitakshara system, he does not have a fluctuating share, which fluctuates with births and deaths in the family. Even before a partition of the property, a coparcener under the Dayabhaga system can say with certainty that he is entitled to a particular share (say, for example, 1/3 or 1/4) of the property.
8. No right of survivorship:
As every coparcener under the Dayabhaga law takes a defined share of the coparcenary property, on his death, his share will pass to the heirs, and not to the other coparceners by survivorship.
9. Absolute power of coparcener to dispose of his share:
Since every coparcener under the Dayabhaga law takes a defined share of the coparcenary property, it follows that a coparcener can alienate his share by sale or mortgage or dispose it of by gift or by will, in the same manner as he can dispose of his separate property.
10. Enjoyment power of coparcenary property:
Since every coparcener under the Dayabhaga law takes a definite share in the coparcenary property, he is entitled to make any use he likes of the portion of the coparcenary property in his possession. It has been held that he can even lease out his share and put the lessee in possession thereof.
11. Right to enforce partition:
As under the Mitakshara law, so also under the Dayabhaga law, every adult coparcener has a right to call for and enforce a partition of the joint family.
12. Powers of Manager:
From the several judicial decisions on the point, it can be concluded that the powers of a manager under the Dayabhaga law are the same as those of a manager under the Mitakshara law. He can contract a debt for a joint family purpose, and a decree passed against him for such a debt will bind the other members, although they are not parties to the suit. He can also mortgage the family property for the purposes of the family business.
13. Presumption as to coparcenary property:
The presumptions with regard to joint family and joint family property under the Mitakshara law have been discussed in the last Chapter. These presumptions would also apply to cases under the Dayabhaga law. However, it may be noted that there is no presumption under the Dayabhaga law that property purchased by a son in his name in the father’s lifetime, and which has been in the possession of the son ever since the purchase, is joint family property. The burden of proof in such a case lies on those who deny the ownership of the son.