Further, what has been stated below is to be read subject to the changes brought about in the law of succession by the Hindu Succession Act, 1956, and the 2005 Amendment thereof?
The four main points of distinction between the two systems can be laid down as follows:
(1) The concept of partition:
According to the Mitakshara School, no member of the joint family can predicate a definite share of the joint property as his own. So, partition, according to that School, consists in ascertaining and defining the shares of the coparceners; in other words, it consists in the numerical division of the property by which the proportion of each coparcener in the property is fixed.
Under the Dayabhaga School, on the other hand, whilst the family remains undivided, each coparcener has a certain definite share in the joint property, of which he is the absolute owner. The property is held in defined shares, though the possession of such property may be the joint possession of the whole family. Partition, according to that Law, consists in separating the shares of the coparceners, and assigning to the coparceners specific portions of that property.
Thus, partition under the Mitakshara consists merely in severance of joint status; it is not necessary to effect partition that there should be an actual division of property by metes and bounds. According to the Dayabhaga, on the other hand, partition consists in dividing the property by metes and bounds among the several co-sharers. The reason is that under the Mitakshara, the essence of coparcenary is unity of ownership, while the essence of coparcenary under the Dayabhaga is unity of possession.
(2) Expression of intention to separate:
According to the Mitakshara School, manifestation of an intention to separate is complete even if there is an agreement between the coparceners to hold and enjoy the property in defined shares as separate owners, without an actual division of the property by metes and bounds.
On the other hand, under the Dayabhaga School, such an agreement is not a sufficient manifestation of the intention to separate. There must be something more than such an agreement; there must be a separation of the shares and the assignment to each coparcener of specific portions of the joint property.
(3) Allotment of shares:
The rules for allotment of shares under the Dayabhaga are the same as those under the Mitakshara except that — (i) sons are not entitled to any share if their father is alive; and (ii) the share of a deceased coparcener passes to his heir (whether male or female), devisee or assignee.
(4) Persons entitled to partition:
(i) Under the Dayabhaga, every adult coparcener, whether male or female, can enforce a partition of the coparcenary property, whereas under the Mitakshara, as it prevailed before the 2005 Amendment of the Hindu Succession Act, a female could not be a coparcener at all and was thus not entitled to partition. Today, a female can be a coparcener, and therefore, this distinction is of academic interest only.
(ii) Under the Mitakshara, a son, a grandson and a great- grandson can demand partition against his three immediate ancestors. According to Dayabhaga, a son is not entitled to a partition of the coparcenary property against his father. The reason is that a son, according to Dayabhaga Law, does not acquire interest in the ancestral property by birth. The same rule applies to grandsons and great-grandsons.
(iii) Under the Mitakshara, the wife herself cannot demand a partition, but she is entitled to a share when there is a partition between her husband and sons.
Under the Dayabhaga, on the other hand, such a question would not arise, because the father is the absolute owner of the property, ancestral or self-acquired, and the sons do not acquire any interest in the property by birth; hence, the sons cannot demand partition.
(iv) As under the Mitakshara, so also under the Dayabhaga, a mother cannot herself enforce a partition; but when a partition takes place between her sons, she is entitled to a share equal to that of a son after deducting the value of the stridhana, if any, which she may have received from her husband or father-in-law.
(v) Under the Dayabhaga, if a son dies before partition, leaving the mother as his heir, the mother is entitled, upon a partition between her surviving sons, to receive a share as the heir of her deceased son, as well as a share in her own right. (Poorendranath v. Hemangini, 36 Cal. 75). This view, however, has not been followed in Indu Bhushan v. Mrityunjaya (I.L.R. 1946 I Cal. 128), where it was held that the mother is not entitled to her own share, if the share which she gets as the heir of her predeceased son is sufficient for her maintenance.
(vi) Under the Dayabhaga, the right of a mother to get a share when a partition takes place between the sons may be taken away by her husband who might deprive her of that right by disposing of his entire property by will. Even in that case, she has, by virtue of her marriage, a right to maintenance out of her husband’s estate.
(vii) Under the Dayabhaga, a sonless step-mother is not entitled to a share on a partition between her step-sons. Under the Mitakshara no such distinction exists.
(viii) According to the Dayabhaga, on a partition between sons by different mothers, the rule is first to divide the property into as many shares as there are sons, and then to allot to each mother, a share equal to that of each of her sons in the aggregate portion allotted to them. A mother who has only one son is not entitled to a separate share. Her only right is to maintenance out of the portion allotted to him. (Hemangini v. Kedarnath, 16 Cal. 758)
(ix) The right of a mother to a share is also denied under the Dayabhaga system, when only a portion of a joint property is divided on a partition between her sons, leaving sufficient property undivided, from which she can draw her maintenance. (Barahi v. Debkamini, 20 Cal. 682)
(x) Under the Dayabhaga, the mere institution of a suit for partition by a son does not entitle a mother to a share in husband’s estate. If the suit is dismissed or withdrawn, she can claim no share. It is only if a decree is passed in the suit that she is entitled to a share.
(xi) According to the Dayabhaga, a grandmother cannot enforce partition, but she can claim a share when a partition takes place between her sons and grandsons or between her sons and a predeceased son’s daughter, who has inherited the share of her deceased father. She is then given the share of a son. But if a partition takes place between grandsons, she is to be given the share of a grandson. When partition takes place between her grandsons and great-grandsons, she will get the share of a grandson. If she has got any stridhana from her husband or father-in-law, such property is to be taken into account in determining her share.
(xii) Under the Dayabhaga, where a fractional share is a property which forms part of a joint estate which has been sold, the purchaser may sue for partition of that property only and for possession of the share bought by him, without asking for a partition of the whole estate.