Chanderprabhu Jain College of Higher Studies

&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi & Bar Council of India)

E-Notes

Class : BBA LL.B IV Semester

Paper Code : LLB 202

Subject : Family Law-II

UNIT-1

JOINT HINDU FAMILY

MITAKSHARA AND DAYABAGHA SCHOOLS

Due to the emergence of various commentaries on SMIRITI and SRUTI, different schools of
thoughts arose. The commentary in one part of the country varied from the commentary in the
other parts of the country.

Under Hindu family law there are two school of law one is the Mitakshara School and other
school of law i.e. Dayabhaga.

The Mitakshara School exists throughout India except in the State of Bengal and Assam. The
Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The
followers of Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great
thinker and a lawmaker from Gulbarga, Karnataka. The Inheritance is based on the principle or
propinquity i.e. the nearest in blood relationship will get the property.
The school is followed throughout India except Bengal. Sapinda relationship is of blood. The
right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the
property.

The system of devolution of property is by survivorship. The share of co-parcener in the joint
family property is not definite or ascertainable, as their shares are fluctuating with births and
deaths of the co-parceners. The co-parcener has no absolute right to transfer his share in the joint
family property, as his share is not definite or ascertainable.

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School of Law
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A Women could never become a co-parcener. But, the amendment to Hindu Succession Act of
2005 empowered the women to become a co-parcener like a Male in ancestral property. A major
change enacted due to western influence there are two main schools: Mitakshara School and
Dayabhaga School. The Dayabhaga School is confined to Bengal and it takes its name after the
work entitled the Dayabhaga written by Jimutavahana.

The Dayabhaga School is, in fact, only a Chapter of a larger work of that author, but this chapter
alone is now extant. The rest of India follows the Mitakshara School which is so called after the
work Entitled Mitakshara written by Vijnaneswara as a commentary on the Smriti of
Yajnavalkya. The Mitakshara (which means measured words) is regarded as Authority even in
Bengal in regard to all matters on which there is no contradictory
Opinion expressed in the Dayabhaga. The Mitakshara School is usually subdivided Into four
schools, namely, the Benaras School, the Mithila School, the Maharashtra and the Dravida
School.

Differences between Mitakshara and Dayabhaga Schools:

The essential differences between Mitakshara and Dayabhaga relates to the following —

(i) Joint Family:

According to the Mitakshara a son, grandson and great-grandson acquire by birth a right in the
ancestral property. This doctrine is the basis of the Mitakshara joint family. According to the
Dayabhaga the ownership of the son can arise only after the death of the father. There, is no right
by birth. The father has un-controlled power of alienation over the family property under the
Dayabhaga. Under the Mitakshara the father‘s power are qualified by the son‘s equal right by
birth.

(ii) Survivorship:
Brothers who have inherited property from their father have a right of survivorship In the
Mitakshara joint family. The Dayabhaga does not recognise any right of survivorship and the
brothers hold in quasi-severalty with full power of alienation.

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(iii) Widow’s rights:

When one of the brothers dies, his widow can succeed to his share under the Dayabhaga but under
the Mitakshara her rights are excluded by the right of survivorship of the brothers. The widow can
then have only a right to maintenance.

Formation and incident under the Coparcenary Property under Dayabhaga and
Mitakshara: Extent and Mode of Succession

The Mitakshara School follows the law of inheritance based on the Principle of Propinquity i.e.
on the nearness of blood relationship. However, full effect to this was not given. The Hindu
Succession Act 1956 has given full effect to the same principle.

Doctrine of survivorship: the property after the death of the common ancestor devolves by the
survivor. The sons of the family have a birth right in the property by virtue of the following two
rules:
• Females will not inherit.
• Agnates to be preferred over cognates.
These rules have made the Mitakshara School reactionary.

Dravidian School of thought (Madras school): It exists in South India. In the case of adoption by a
widow it has a peculiar custom that the consent of the sapindas was necessary for a valid
adoption. (‗Sapindas‘ – blood relation) Collector of Madura vs. Mootoo Ramalinga Sethupathy
(Ramnad case) the zaminder of Ramnad died any without sons and usually, such state would
have escheated to the Government, his widow however adopted a son, with the consent of the
sapindas of her husband.
But on the death of the widow, the Collector of Madhura notified that the Zamindari would
escheat to the State. The adopted son brought a suit for declaration of the validity of the adoption.
The question was that whether a widow can make a valid adoption without her husband‘s consent
but his sapinda‘s consent.
The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that
Hindu law should be administered from clear proof of usage which will outweigh the written text
of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in
the Dravida School, in the absence of authority from the husband, a widow may adopt a son with
the assent of his kindred.

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School of Law
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In the Dayabhaga School of Hindu Law each coparcener has a defined interest. It can be
alienated. It does not pass by survivorship. In the Mitakshara Coparcenary the coparcener‘s share
is not defined. It fluctuates with births and deaths of coparceners. It passes by survivorship. So the
power of alienation either does not exist or is recognised only a limited extend (as in Bombay and
Madras).

As to how the Coparcenary Arises:

Under the Dayabhaga School of Hindu Law there is no right by birth. So during the father‘s life-
time between the father and the sons there is no coparcenary. When the father dies, his sons
constitute a coparcenary. The Mitakshara coparcenary arises during the life-time of the father
itself and his sons have right by birth.

Nature of Interest of Coparceners:

In the Dayabhaga School of Hindu Law each coparcener has a defined interest. It can be
alienated. It does not pass by survivorship. In the Mitakshara Coparcenary the coparcener‘s share
is not defined. It fluctuates with births and deaths of coparceners. It passes by survivorship. So the
power of alienation either does not exist or is recognised only a limited extend (as in Bombay and
Madras).

Expansion of Coparcenary:
Under the Dayabhaga system, on the death of one coparcener his heirs become coparceners. So
even females may in this way become coparceners. Under the Mitakshara system only males can
be coparceners. On the birth of a son to a coparcener, the son also becomes a coparcener under the
Mitakshara system. This is not so under the Dayabhaga for during the father‘s life-time the son is
not a coparcener.

Alienee’s Right to Ask for Partition:

The alienee under both systems gets an equity which can be worked out in a suit for partition. But
under the Dayabhaga Law, the alienee can ask for joint possession along with the coparceners.
This is because he has a defined share. Under the Mitakshara since there is no defined share, a suit
for partition is the only appropriate remedy of the alienee.

Incidents of Coparcenary Property under Hindu Law

Four Generation Rule – The lineal male descendants of a person, up to third generation
(excluding him), acquire on birth, an interest in the coparcenary property.

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Creation of law- Coparcenary is also a creation of law and cannot be formed by an agreement
between the parties.

Only males – No stranger can be introduced in the coparcenary. Only a male child, born in the
family or validly adopted, can become a coparcener.

Acquisition of interest by birth – A coparcener in a joint family is born with an interest in the
coparcenary property which means that the moment he is born in the family he gets a right by
birth in the ownership of the coparcenary property.

Fluctuating and not a specific interest – A coparcener on birth gets an interest in the
coparcenary property. His interest in the property is not a specific share and is subject to
fluctuation with the deaths and births of other coparceners in the family. For example, a joint
family comprises a father and two sons. Each of these is a coparcener and entitled to one- third
share in the coparcenary property but on the death of any one coparcener, it will fluctuate and will
increase.

Doctrine of Survivorship – Under the traditional law, on the death of a coparcener, his interest in
the family property is immediately taken by those coparceners who survive him and thus he
leaves nothing behind out of his interest in the coparcenary property for his female dependents.
This phenomenon is called doctrine of survivorship.

Alienation of undivided interests – Generally, a coparcener is individually not entitled to

alienate his undivided interest in the coparcenary property. Only in certain situations the father or
senior most male member or the karta can alienate the undivided interest or even the whole
property.

KARTA

The position of the ‗Karta‘ or the ‗manager‘ of the Hindu joint family finds its roots in the
‗Patriarch‘ of the ancient family units. Suraj Bunsi Koer v. Sheo Persad defined the term ‗Karta‘.
Manager – Property belonging to a joint family is ordinarily managed by the father or another

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senior member of the family: The Manager of a joint family is called Karta. The absolute powers
of the ‗Patriarch‘ have now evolved into superior powers that are accompanied by similar
responsibilities. These powers and responsibilities are several and quite multifaceted. The power
of alienation of a Karta is limited since alienation can only be done in exceptional cases. The
other powers of the Karta, however, are almost absolute.

Power of Alienation of Joint Property

No individual member of a coparcenary has the power to alienate joint family property without
the consent of all other members. However, the Dharma Shastra recognizes that in some
circumstances a member has the power to dispose of the joint family property. Mitakshara Law
explicitly states this; wherein ,even one person who is capable may conclude a gift, hypothecation
or sale of immovable property, if a calamity (apatkale) affecting the whole family requires it, or
the support of the family (kutumbarthe) renders it necessary, or indispensable duties
(dharmamarthe), such as obsequies of the father or the like, made it unavoidable.

Debts: Doctrine of Pious obligation and Antecedent Debts:-

Doctrine of Pious obligation’ means the moral liability of sons to pay off or discharge their
father‘s non-avyavaharik debts. The debts borrowed may not be of legal necessity or for benefit of
estate. Thus, if the father is the Karta of a Hindu joint family, he may alienate the coparcenary
property for discharging the antecedent debts. The sons are under the obligation to recover such
alienated property by repaying the debts.
The ancient doctrine of pious obligation was governed by Smriti law. There is a pious obligation
on the sons and grandsons to pay the debts contracted by the father and grandfather. According to
Privy Council this obligation extends to great grandsons also because all the male descendants‘ up
to three generations constitute coparcenary and every coparcener is under a religious obligation to
pay the debt contracted by their ancestor, provided such debt was not taken for an immoral or
unlawful purpose.

The concept of pious obligation has its origin in Dharmashastras, according to which non-
payment of debt is a sin which results in unbearable sufferings in the next world. Hence the debts
must be paid off in all circumstances provided it was not for immoral and illegal purposes.
Vrihaspati has said, ―If the father is no longer alive the debt must be paid by his sons. The father‘s

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debt must be paid first of all, and after that a man‘s own debts, but a debt contracted by the
paternal grandfather must always be paid before these two events.

The father‘s debts on being proved must be paid by the sons as if their own, the grandfather‘s debt
must be paid by his son‘s son without interest, but the son of a grandson need pay it at all. Sons
shall not be made to pay (a debt incurred by their father) for spirituous liquor, for idle gift, for
promises made under influence of love or wrath, or for surety ship, nor the balance of a fine or
toll liquidated in part by their father. Yajyavalkya says, ―A son has not to pay in this world
father‘s debt incurred for spirituous liquor, for gratification of lust or gambling, or a fine, nor
what remains unpaid of a toll; nor idle gifts.‖ But in case of debts for purposes other than the
above, on the death of the father, or on his going abroad, or suffering from some incurable
disease, the debt contracted by him would be payable by his sons and grandsons. The Mitakshara
has presented the entire proposition in stronger words. According to it when the father has gone
abroad or is suffering from some incurable disease, the liability to pay the debt contracted by him
would lie on the sons and grandsons irrespective of the fact that the father had no property. There
are reasons for fixing this liability on sons and grandsons. The liability to pay the debt is in the
order, viz., in absence of father the son and in absence of son the grandson. It is worth noting that
the doctrine of pious obligation does not extend the liability to females notwithstanding she has
been given a share in the joint family property on partition. Where the wife gets a share on
partition between husband, sons and herself, still she would not be under any obligations to pay
the debt of the ancestor (father).