Wednesday, 20 July 2022

Difference between Dayabhaga and Mitakshara in Hindu Law

 Difference between Dayabhaga and Mitakshara in Hindu Law


The term “Dayabhaga” is derived from a similarly named text written by Jimutavahana. The

term-, “Mitakshara” is derived from the name of a commentary written by Vijnaneswara, on

the Yajnavalkya Smriti. The Dayabhaga and The Mitakshara are the two schools of lawthat

govern the law of succession of the Hindu Undivided Family under Indian Law. The

Dayabhaga School of law is observed in Bengal and Assam. In all other parts of India, the

Mitakshara School of law is observed. The Mitakshara School of law is subdivided into the

Benares, the Mithila, the Maharashtra and the Dravida schools.

The differences between the Dayabhaga and the Mitakshara schools of law may be

categorized under the following: -

1. Joint Family: – According to the Mitakshara law school a joint family refers only to

the male member of a family and extends to include his son, grandson and greatgrandson.

They collectively have co-ownership/Coparcenary in the Joint Family.Thus a son by birth

acquires an interest in the ancestral property of the joint family. Under the Dayabhaga law

school the son has no automatic ownership right by birth but acquires it on the demise of his

father.

In the Mitakshara school the father’s power over the property is qualified by the equal rights

by birth enjoyed by a son, a grandson and a great grand -son. An adult son can demand

partition during his father’s lifetime or his three immediate ancestors. He has a say in the

disposition of the family property and can oppose any unauthorized disposition of ancestral

or family property. This is not possible under the Dayabhaga school as the father has overall

and uncontrolled power over the family property till death.

2. Coparcenary/Co-ownership: -Under the Mitakshara law school all the members of

the Joint family enjoy coparcenary rights during the father’s lifetime. Under Dayabhaga

School when the father is alive the sons do not have coparcenary rights but acquire it on the

death of the father. In the Mitakshara School the coparcener’s share is not defined and cannot

be disposed. In the Dayabhaga the share of each Coparcener is defined and can be disposed.

3. Partition: – While both the Mitakshara and the Dayabhaga schools hold that the true

test of partition is in the intention to separate the manifestation of this intention is different in

each of the schools. In the case of the Mitakshara School the intention involves holding the

property in defined definite shares while in the Dayabhaga School there has to be a physical

separation of the property into specific portions and assigning of separate share to each

coparcener. In the Mitakshara system none of the members of the coparceners can claim a

definite physical share of the joint property. So, partition in this system involves in

ascertaining and defining the share of the coparcener i.e. In the numerical division of the

property. In the Dayabhaga system each of the coparcener has a definite share in the joint

family property even though the family is joint and undivided and the possession is common.

So, partition in this system involves the physical separation of the joint property into the

separate shares of the coparceners and assigning to each of the coparceners the specific

portion of the property.


4. Rights of Woman: – In the Mitakshara system the wife cannot demand partition. She

however has the right to a share in any partition affected between her husband and her sons.

Under the Dayabhaga this right does not exist for the women because the sons cannot

demand partition as the father is the absolute owner. In both the systems, in any partition

among the sons, the mother is entitled to a share equal to that of a son. Similarly, when a son

dies before partition leaving the mother as his heir, the mother is entitled to a share of her

deceased son as well as share in her own right when there is a partition between the

remaining sons.

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