Explain In Detail The Character Of

Mitakshara And Dayabhaga

Coparcenary. Difference Between
Them.
INTRODUCTION
Hindu law is one of the most ancient laws in the world. It is about 6000
year old. Hindu law was established by the people for attaining salvation.
There are main four sources of Hindu law which are divided into twofold
classifications.

Ancient:

1. Shruti- Shruti means what has been heard. It contains words of

god. This source is one of the most important source. It contains
knowledge about salvation and incarnation.
2. Smriti- Smriti means to remember. In this it is considered that the
word uttered by the god to Rishi’s is written by remembering the
words.
3. Commentary and digest- Commentary means single
interpretation of smriti and digest means different- different
interpretations of smriti. It plays a very important role in developing
the concept of Hindu law.
Mitakshara and Dayabhaga coparcenary (school of thoughts) are
considered as two most important commentaries.

Custom- Custom means the tradition which is followed from a very long

period if time without break.

Modern:

1. Judicial Decisions- Judicial decision is considered as one of the

most important sources of Hindu law. Under this doctrine of
precedent is developed in which the cases were solved according to
 the previous case decision and the decision is given by the higher
court is binding to all the lower courts.
2. Justice equity and good conscience- it is a basic rule of law.
When an existing law doesn’t apply in a case then this rule is apply.
3. Legislation- Legislation is considered as the bases of growth of
Hindu law in present time. It is important for new conditions of
society to become a necessity to codify the law.
Hindu Undivided Family
1. Hindu Undivided Family (HUF) is also known as a Hindu joint family.
It consists of a common ancestor and all his lineal male descent up
to any generation together with wife and unmarried daughter of
common ancestors and of the lineal male descendants.
2. The existence of the Hindu Undivided Family is from a common
ancestor.
3. Members in Hindu Undivided Family added by birth, adoption,
marriage.
4. A family is presumed to be a joint family by joint in food, worship
and estate.
CASE
Ketha Perumal v. Rajendra

In this case, there were three bothers owning a joint family property and
they all are working at three different places. It was held that they still
constitute as a joint family merely because they were not living jointly
doesn’t lead to interference that they didn’t constitute a joint family.

1. For continuation of Hindu Undivided Family presence of common

ancestor is not necessary.
2. Hindu Undivided Family is considered as a unit and all its affairs is
represented by the head of the family i.e., Karta (oldest member of
the joint family).
3. Hindu undivided family comes to an end only by partition.
Schools of Thoughts
In Hindu law all the thoughts are divided mainly on the bases of two
schools. Two main schools of thoughts are:
 1. Mitakshara
2. Dayabhaga
Mitakshara School of thought

It is based on Yajnayalkya smriti which is interpreted by Vijneshwara.

This school of thought is applicable whole over India except West Bengal
and Assam.

Dayabhaga School of thought

It is based on Yajnayalkya smriti which is interpreted by Jimutvahana.

This school of thought is applicable only in West Bengal and Assam.

Coparcener
Coparcener is a term which is mainly used for the members who are the
legal successor of the ancestral property.

In Mitakshara School only main members are considered as coparceners.

After enacted of Hindu Succession Act, 2005 female can also be a
coparcener in the ancestral property.

In Dayabhaga School both male and female are coparceners in their

father’s property.

Coparcenary is found in Hindu Undivided Family. Coparcenary comes to

an end only by the way of partition.

Coparcener has a right only by birth or adoption.

Rights of a Coparcenary

1. Right of joint ownership of the property.

2. Right to joint possession and enjoyment of the property.
3. Right to claim partition.
4. Right to seek maintenance.
5. Right to challenge improper alienation made by Karta.
Incident of Coparcenary

1. Coparcener has a right only by birth or adoption.

2. A person suffering from insanity can be a coparcener but he does
not have a right to claim partition or to a share if partition takes
place.
If he is cured of insanity than both of his rights revive.

Coparcenary of Mitakshara School

Coparcenary is a narrow body of persons within a joint family. It consist
of the father and next three male lineal ascendants i.e., son, son’s sons,
son’s son’s son.

In this case share of the property is divided between A, B, C and D. All

coparcener’s get equal share i.e., one-fourth (1/4) and is not a
coparcener.

If A dies than B, C, D and E get the equal share i.e., one-third (1/3).

If B dies than A, C and D get the one-third (1/3) share of the property
and E is not considered as a coparcener because from A four-generation
comes till D only. So E is not a coparcener.
In this case if all members are alive then each coparcener gets an equal
share in property i.e., one-sixth (1/6).

If C dies than A, B, D, E, F and G are coparceners and they get an equal

amount of share i.e., one-fifth (1/5).

1. Coparcenary is counted till fourth generation from the last owner or

the original owner.
2. Only male member of the family can be a coparcener, female
cannot be a coparcener. After the enactment of the Hindu
Succession Act, 2005 has enables daughters to become coparcener
like a son.
3. A coparcener has an interest in joint family property by birth but
the interest is flexible and unpredictable which can be increased by
the death of other coparcener and decrease by taking birth of a new
coparcener in a joint family.
4. An illegitimate son is not considered as a coparcener in the joint
family property.
5. Interest of coparcener is fixed only by the partition of joint family
property.
Coparcenary of Dayabhaga School
1. In Dayabhaga School coparcenary share is fixed.
2. In this school, both daughters (married or unmarried) and sons
have equal right.
In this case, if A is alive B and C do not have the right to property. If A
dies then only coparcenary starts between B and C.

In this case, if A and B dies then all property belongs to C.

If B and C dies and A is living then the property would be divided

according to the succession act.

In this case if B dies before A the property would be divided into three
parts as B is married so wife and children will get his share.

1. There is no coparcenary consisting of father, son and so on.

2. A coparcenary comes into existence for the first time on the death
of the father between his son and daughter when they inherit their
father’s property.
3. A son has no right by birth in father’s property. It can be self-
acquired or ancestral property. A father can dispose of his property
as per his own wish or the property will dissolve according to Hindu
Succession Act.
4. A female can also be a coparcener.
 5. Each coparcener has a right to claim partition and they also have a
right to joint possession of property.
6. A coparcener has fixed share in the coparcenary property. In case
of death of a coparcener his heir successor gets the property
according to the Hindu Succession Act.

If A dies than B, C and D get 1/3rd shares in the property of A. E, F, G

and D(W) [D(W) is D’s wife] not have any ancestral right in A’s property.

If A dies after the death of D, then D (W) got the share of D.

Difference between Mitakshara School and Dayabhaga School

MITAKSHARA SCHOOL DAYABHAGA SCHOOL

Applicable whole over India except West Bengal

Applicable only on West Bengal and Assam.
and Assam.

 Only male members are coparcener. Female

become coparcener after enactment of Hindu Both male and female members are coparcener.
Succession Act.

Acquires coparcenary only after the death of the

Acquires coparcenary by birth or adoption.
father.
Property dissolved on the doctrine of
In case of the death of one coparcener his share is
survivorship. In case of the death of one
given to his legal heir i.e., son, daughter, wife,
coparcener, his share in the property is belongs to
etc.
other coparcener.