CHAPTER 4 DAYABHAGA JOINT FAMILY

Kusum & Poonam Pradhan Saxena - Family Law

Poonam Pradhan Saxena

Kusum & Poonam Pradhan Saxena - Family Law > Kusum & Poonam Pradhan Saxena - Family
Law > VOLUME II

CHAPTER 4 DAYABHAGA JOINT FAMILY

INTRODUCTION

The Dayabhaga system of law was prevalent in Bengal and parts of Bihar and Orissa, while in rest of India the
Mitakshara law prevailed. A joint family under the Dayabhaga law differs from a Mitakshara joint family in certain
fundamental aspects, the primary among them is absence of a right by birth of a son. Dayabhaga law does not
recognise the doctrine of survivorship. There is no distinction between separate and coparcenary property and the
entire concept is based on inheritance, i.e. that the sons inherit the property 1 of the father on his death, as tenants-
in-common. Accordingly, when a son inherits the property of the father under a Dayabhaga coparcenary, his own
son and grandson do not acquire any right in the property. 2

In a Dayabhaga joint family, the father has absolute powers of management 3 and disposal over the separate as well
as the coparcenary property and the sons have only a claim of maintenance. Therefore, the sons under a
Dayabhaga coparcenary have neither a right to ask for partition of the property from the father nor a right to even
ask for accounts of the joint family property. Where it comes to them on the death of the father they hold it quasi-
severally and have a specific defined share in complete contrast to Mitakshara coparcener’s fluctuating interest. A
coparcener here is the absolute owner of his share with full powers of alienation. 4 Thus a purchaser of a share at a
court sale can successfully get the physical possession of the share. 5

On the death of a coparcener under the Dayabhaga joint family, his share does not pass to the surviving
coparceners but goes to his heirs including even a legatee. 6 The income from the properties of a Dayabhaga family
are assessed separately in the hands of the members in proportion to their shares. 7 Unlike a Mitakshara joint family,
a Dayabhaga joint family is not a creation of law but a result of a desire of the family members to live together;
therefore rather than a fiction it originates on fact. 8 Similar to the concept of joint family under Mitakshara law, a
Dayabhaga joint family also is joint in food, worship and estate. Property in a Dayabhaga joint family may comprise
acquisitions, ancestral property or property thrown into common stock.

DISTINCTION BETWEEN MITAKSHARA COPARCENARY AND DAYABHAGA

COPARCENARY

(i) 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.

(ii) Commencement of Coparcenary

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One of the primary differences between Mitakshara and Dayabhaga law is the commencement or the starting of
coparcenary itself. Under the Mitakshara law the starting point of coparcenary is the birth of the son in the family of
a person who after inheriting the property from his father or paternal grandfather or paternal great grandfather or
obtaining property on partition holds it as a sole surviving coparcener. On the birth of his son the coparcenary
comes into existence or is revived if it was in abeyance. For eg, in a coparcenary consisting of a father F and his
two sons A and B, A demands a partition, takes his share and then gets married. When a son is born to him, he will
form a coparcenary with his son. Similarly a Hindu male having a wife inherits property under the classical law from
his father. He has a son and will form a coparcenary with him. Thus the birth of a son is the starting point or reviving
point of Mitakshara coparcenary. However in complete contrast to it, under the Dayabhaga law, the father so long
as he is alive holds the property as a sole or exclusive owner of it. On his death if he is survived by two or more
sons, they inherit the property and form a coparcenary. It is the death of the father that becomes the starting point
of the formation of coparcenary under the Dayabhaga law and not the birth of the son as is the case under
Mitakshara law. The sons can bring an end to this coparcenary by effecting a partition among themselves but till it is
done, it continues.

(iii) 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, his sons and grandsons, under the Dayabhaga law a coparcenary
cannot consist of a father and son or grandfather and grandsons or a single son. For eg, a family comprises father
F and his son A and the two sons of A, B and C [see Fig 5.1]. 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.

Fig. 5.1

Thus, under the Dayabhaga law there cannot be a 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 a family comprises the father and his two sons A and B. On the death of the father, A and B will form a
coparcenary. 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 Bi.e., nephews and uncle, will form a coparcenary [See Fig 5.2].

Fig. 5.2

(iv) 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
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CHAPTER 4 DAYABHAGA JOINT FAMILY

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.9 He can dispose of his share in the property by way of sale, gift, lease 10 or even a Will.

(v) Unity of Possession and Partition under the Dayabhaga Law

Under the Dayabhaga law on the death of the father, where he is survived by two or more of his sons, all of them
inherit his property jointly and hold it as tenants-in-common. 11 As the doctrine of fluctuating interest is not
applicablehere, each of them will have a fixed definite share over which they can also exercise full powers of
disposal. For e.g., if the father dies leaving behind three sons A, B and C, each son will have a fixed 1/3rd share in
the property. Till a partition takes place they will have unity of possession over the entire property together viz.,
though they have a definite 1/3rd share, each share can be ascertained only after a partition is effected. Till then no
one can claim any specific portion of the property as his own. A clear cut demarcation can come only with a
partition. Thus unity of possession is an essential feature of Dayabhaga coparcenary.

(vi) Females as Representing Coparceners (Pre-1937)

Another distinguishing feature of Mitakshara and Dayabhaga coparcenary was the inclusion of females as
representing the share of the deceased coparceners under Dayabhaga and absolute incapability of females to be
representatives of sharers under Mitakshara coparcenary.

With the strict application of the doctrine of survivorship under the Mitakshara law, if a coparcener died leaving
behind only female dependants including widows and daughters, his interest in the Mitakshara undivided
coparcenary was immediately taken by the surviving coparceners while the widows and daughters had a right of
maintenance only. Under the Dayabhaga coparcenary on the death of a coparcener, since the shares of such
coparceners in absence of application of the doctrine of survivorship will go by way of inheritance, the
widow/daughter will inherit the property. If the possession is united, they by representing the deceased coparcener
will form a coparcenary with the surviving brother of the deceased coparcener. Under the Dayabhaga coparcenary
therefore, both males and females could form a coparcenary. For example, in Fig 5.3, a coparcenary comprises the
father F, his three sons A, B, and C. A is married having a wife W and a daughter D. On the death of the father, all
three brothers will collectively form a coparcenary.

Fig. 5.3

If the family is governed by the Mitakshara law each of the brothers A, B and C will have a fluctuating interest in the
coparcenary property that can be called a probable 1/3rd and if A dies, his probable 1/3rd will be taken by the
surviving brothers B and C with the application of doctrine of survivorship and their shares will be increased to a
probable half. W and D will have only a right of maintenance from this property. But if the family is governed by the
Dayabhaga system A, B and C will have a fixed 1/3rd share in the property though possession of it will be united in
absence of a partition. On the death of A, his 1/3rd share would go by inheritance to his wife and daughter. In
absence of a partition, they would step into the shoes of A and will form a coparcenary with B and C. This
coparcenary will comprise two females W and D and two males B and C. Thus, a coparcenary under Dayabhaga
law can have both males and females but under the Mitakshara law, coparcenary will have only male members.
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ENJOYMENT OF COPARCENARY PROPERTY

Due to unity of possession in a Dayabhaga coparcenary each coparcener is entitled to enjoy the property in a
reasonable manner and not commit an act injurious to the property. 12 By virtue of having a distinct share each
coparcener has an absolute power of disposal but he cannot claim a right to possess a specific share. A coparcener
therefore cannot enter a specific portion of the property such as an agricultural field and cultivate it for his benefit
without the consent of the other coparceners. 13 He may nevertheless with consent of other coparceners occupy a
specific portion of the field and use the income from such cultivation as his separate property. In such cases it will
constitute his own separate income. 14

PRESUMPTION OF JOINT FAMILY AND JOINT FAMILY PROPERTY

Every Dayabhaga family is also presumed to be a joint family, but there is no presumption that the property that
each of the coparcener occupies is joint family property. So where during the lifetime of the father, the son is in
exclusive possession of a piece of property there is no presumption that the property in the hands of the son is joint
family property and the burden of proof is on the person who alleges that it is joint family property, 15 irrespective of
the fact that the property might be occupied by the father and the son 16 or is in exclusive possession of the son.

RIGHT OF COPARCENERS TO DEMAND A PARTITION

In a Dayabhaga coparcenary every adult coparcener has a right to demand a partition, 17 and physical demarcation
of their shares.

MANAGER OR KARTA

In a Dayabhaga Coparcenary, it would be inappropriate to call the father, a Karta or a manager of the joint family
property as he is not a mere manager but an absolute owner of the property. Nevertheless, his powers are similar
to those of Karta under Mitakshara law. 18 He can mortgage the family property for a family business; 19 can contract
a debt for the joint family purposes and in the event of a decree passed against him, the decree will be binding on
the other members of the family also even if they were not parties to the suit. 20

1. KKR Paul v. Manoranjan Kar, AIR 1968 Tripura 34 .

2. Kunj Behari v. Gauhari Ram, AIR 1958 Cal 105 [LNIND 1956 CAL 101].

3. See Makhan Lal v. Sushma Ram, AIR 1953 Cal 164 [LNIND 1952 CAL 35].

4. Kounla v. Ram Huree, (1827) 4 Beng Sel R 196; Anunchand v. Kishen, (1805) 1 Beng Sel R 115.

5. Koonwar Bijoy v. Shama Soonduree, (1865) 2 WR (Mis) 30; Eshan Chunder v. Nund Coomar, (1867) 8 WR 239.

6. Soorjeemoney v. Denobundoo, (1857) 6 MIA 523–553; Batia Bala v. Chabilal Sen, AIR 1974 Pat 147 .

7. Commissioner of Income Tax v. Prafulla Kumar Panja, (1993) ITR 706 (Cal); CWT v. Bishwanath Chatterjee, (1976)
103 ITR 536 (SC).
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8. Commissioner of Income Tax v. Gowrishanker, (1968) 68 ITR 345.

9. Kounla v. Ram Huree, (1827) 4 Beng Sel R 196; Anunchand v. Kishen, (1805) 1 Beng Sel R 115.

10. Ram Debul v. Mitterjeet, (1872) 17 WR 420; Macdonald v. Lalla Shib, (1873) 21 WR 17.

11. Commissioner, Wealth Tax v. Biswanath Chatterjee, AIR 1976 SC 1492 [LNIND 1976 SC 166], 1495–97; see also
Commissioner, Wealth Tax v. Gauri Shankar, (1972) 84 ITR 699 (SC); Commissioner of Income Tax v. Bani Rani
Rudha, 59 ITR 216; Charandasi Devi v. Kanai Lal, AIR 1955 Cal 206 [LNIND 1954 CAL 124]; Biswa Ranjan v. Income
Tax Officer, 47 ITR 927; Commissioner of Income Tax v. Balaichandra, 105 ITR 666; Partha Talukdar v. Nina
Hardinge, AIR 1993 Cal 118 [LNIND 1992 CAL 305].

12. Gopee Kishen v. Hem Chunder, (1870) 13 WR 322, wherein it was held that a coparcener should not pull down a
common verandah.

13. Stalkarti v. Gopal, (1873) 20 WR 168.

14. Robert Watson and Co. v. Ramchund, (1891) 18 Cal 10, 21.

15. Ramesh Chandra v. Hemendra, AIR 1949 Cal 519 ; Sarada v. Mahananada, (1904) 31 Cal 448. See also Jugal
Kishore v. Narayan, AIR 1982 Cal 342 [LNIND 1982 CAL 17].

16. Hemchandra Ganguli v. Matilal Ganguli, AIR 1934 Cal 68 . See also Kunja Behari v. Gourhari Ram, AIR 1958 Cal 105
[LNIND 1956 CAL 101].

17. Sreemutty Soorjeemoney Dossee v. Denobundoo, (1856) 6 MIA 526, 539.

18. Balakrishna v. Muthasami, (1909) 32 Mad 271, 274.

19. Bemola v. Mohun, (1880) 5 Cal 792.

20. Dwarka Nath v. Bungshi, (1905) 9 CWN 879. See also Sukhadakanta v. Bhattachariya, AIR 1934 Cal 73 .

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