Home 2nd Semester Family Law (Hindu Law) What do you understand by partition according to Dayabhag ?

What do you understand by partition according to Dayabhag ?

Partition Under Hindu Law: Dayabhaga and Mitakshara Schools

Hindu law governing partition of Joint Hindu Family property is primarily regulated by two distinct schools of thought: the Dayabhaga School and the Mitakshara School. These schools differ fundamentally in their approach to coparcenary rights, property ownership, and partition procedures. lawbhoomi+2

Partition According to Dayabhaga Law

According to the Dayabhaga School, partition consists in splitting up joint possession, i.e., separating the shares of the coparceners or, in other words, dividing the property by metes and bounds among the several co-sharers. The Dayabhaga defines partition as: ipleaders+1

“Partition consists in manifesting (or in particularising by the casting of lots or otherwise) a property which had arisen in lands or chattel, but which extended only to a portion of them, and which was previously unascertained, being unfit for exclusive appropriation, because no evidence of any ground of discrimination existed”. iilsindia

According to Dayabhaga law, each of the undivided coparceners has ownership not over the entire joint property, but only over particular portion thereof which becomes manifest when, upon partition, these several portions are specifically allotted to several coparceners. At no time does the ownership of one among several coparceners extend over the whole of the joint property, but it always extends over a part—unascertained and undefined before partition and ascertained and defined after it. This doctrine is therefore known as the “doctrine of ownership in a part” or “unity of possession”. lexpeeps+2

Key Principles of Dayabhaga Partition:

Unity of Possession: The essence of coparcenary under Dayabhaga law is “unity of possession” rather than unity of ownership lexpeeps
Defined Shares: Each coparcener has a fixed and definite share in the property, which does not fluctuate with births and deaths lexpeeps+1
Physical Division Required: Partition is complete only when there is actual physical separation of shares and specific portions are assigned to each coparcener ipleaders+1
No Fluctuating Interests: Unlike Mitakshara, the shares remain constant and predetermined ijalr

The reason for this difference can easily be found in the different conception of coparcenary. Under the Mitakshara Law, the essence of coparcenary is “unity of ownership”, whereas the essence of coparcenary under the Dayabhaga Law is “unity of possession”. lawbhoomi

Who are Entitled to Partition Under Dayabhaga Law?

Under the Dayabhaga School, every adult coparcener, whether male or female, has a right to enforce partition. However, there are specific restrictions regarding when this right can be exercised: lexpeeps+1

Sons, Grandsons, and Great-Grandsons:

Sons, grandsons, and great-grandsons of a Hindu governed by the Dayabhaga Law do not take interest by birth in the ancestral property ujls+1
They are therefore not entitled to partition of ancestral property against their father during his lifetime ujls+2
Under Dayabhaga law, the father is the absolute owner of all property (whether ancestral or self-acquired) during his lifetime ipleaders+1
Only after the father’s death can the legal heirs demand partition of the property ijalr+1

Women’s Rights Under Dayabhaga:

Adult female coparceners have the right to enforce partition lexpeeps
However, since sons cannot demand partition against their father, no question of wife taking any share in ancestral property arises during the father’s lifetime lawbhoomi

Widowed Mother’s Rights:

The rights of a widowed mother under Dayabhaga Law are generally the same as those under Mitakshara Law, except in the following respects: lawbhoomi

Under Dayabhaga Law, a mother may inherit both in her own right as well as heirs of her deceased sons
Under Dayabhaga Law, a sonless step-mother is not entitled to a share on a partition between her step-sons lawbhoomi

Modern Developments:

Following the Hindu Succession (Amendment) Act, 2005, daughters have been granted equal coparcenary rights as sons, fundamentally changing the traditional male-only coparcenary system. The amendment ensures that: ipleaders+2

Daughters become coparceners by birth in the same manner as sons data.unwomen+1
They have equal rights in coparcenary property regardless of marital status cleartax+1
The amendment has retrospective application, benefiting daughters born before 2005 as well ipleaders+1

Who are Entitled to a Share on Partition?

Allotment of Shares:

The rules of allotment of shares under Dayabhaga are similar to Mitakshara except that: lawbhoomi

Sons are not entitled to any share in the presence of their father
The share of a deceased coparcener passes to his heir, devisee, or assignee

Property Determination:

Where property stood in the name of one of the coparceners and there existed an agreement between the coparceners showing the property as subject matter of partition, the property would remain coparcenary property liable to be taken into account for partition lawbhoomi
In Dayabhaga School, where the property is in the name of an individual coparcener, it must be proved to be coparcenary property by the party asserting it to be so lawbhoomi
In contrast, in Mitakshara School, any property possessed by a coparcener is presumed to be coparcenary if there existed a coparcenary at the given time lawbhoomi

Points of Similarity Between Mitakshara and Dayabhaga Schools

The following are the points of similarity between the two schools: lawbhoomi

Intention to Separate: According to both schools, the true test of partition lies in the intention to separate
Third Party Rights: The purchaser of fractional share in the property of the joint family may sue for partition according to both schools
Grandmother’s Position: According to both schools, a grandmother cannot herself demand a partition
Equal Shares Among Brothers: In both schools, brothers take equal shares on partition
Distribution Method: In both schools, each branch takes per stirpes as regards every other branch, but the members of each branch take per capita as regards each other

Points of Distinction Between Mitakshara and Dayabhaga Schools

Aspect	Mitakshara School	Dayabhaga School
Definition of Partition	Partition consists in ascertaining and defining shares of the coparceners lawbhoomi+1	As shares are already defined, partition consists in the actual division of the property by metes and bounds lawbhoomi+1
Method of Partition	Partition is effected by the expression of an irrevocable intention to separate lawbhoomi+1	Partition is not affected unless there is a separation of shares and specific portions are assigned to each coparcener lawbhoomi+1
Legal Completion	Mere institution of partition suit operates as partition lawbhoomi+1	Partition is complete when decree is passed and physical division occurs lawbhoomi+1
Right to Demand Partition	Son, grandson, and great-grandson can demand partition against three immediate ancestors lawbhoomi+1	The son and grandson cannot demand partition against their father during his lifetime lawbhoomi+2
Unity Concept	Based on “unity of ownership” – all coparceners have joint ownership over entire property lawbhoomi+1	Based on “unity of possession” – each coparcener owns a definite share lawbhoomi+2
Wife’s Rights	Wife cannot demand partition herself, but is entitled to a share when husband and sons divide lawbhoomi+1	Under Dayabhaga, no such right arises as the father is the absolute owner and sons cannot demand partition lawbhoomi
Step-mother’s Rights	Step-mother is entitled to a share even when she is sonless lawbhoomi	In Dayabhaga, sonless step-mother is not entitled to a share on partition lawbhoomi
Inheritance by Birth vs Death	Sons acquire rights by birth in ancestral property lawbhoomi+2	Rights in property are acquired only after the father’s death by inheritance lexpeeps+2
Share Fluctuation	Shares fluctuate with births and deaths in the coparcenary lawbhoomi+1	Each coparcener has fixed, definite shares that do not fluctuate lexpeeps+1
Property Presumption	Any property possessed by a coparcener is presumed to be coparcenary lawbhoomi	Property must be proved to be coparcenary by the party asserting it lawbhoomi

Modern Legal Framework

The Hindu Succession Act, 1956, and particularly the 2005 Amendment, has significantly modernized these traditional concepts. Key developments include: data.unwomen+1

Gender Equality:

Daughters now have equal coparcenary rights as sons in both schools cleartax+2
They can become Karta (head of family) if they are the senior-most member ipleaders
Married daughters retain their coparcenary rights in their paternal family cleartax+1

Retrospective Application:

The 2005 amendment has retrospective effect, benefiting daughters born before the amendment date ipleaders+1
The Supreme Court has clarified that daughters have coparcenary rights regardless of whether their father was alive on September 9, 2005 cleartax

Property Rights:

Both ancestral and self-acquired property rights have been equalized between sons and daughters legalkart+1
Widow’s rights have been strengthened, allowing them to file independent partition suits in certain circumstances timesofindia.indiatimes+1

Conclusion

The Dayabhaga and Mitakshara schools represent two distinct philosophical approaches to Hindu family property law. While Mitakshara emphasizes collective ownership and birthright, Dayabhaga focuses on individual ownership and inheritance upon death. thelegalschool+4

The 2005 Amendment to the Hindu Succession Act has been revolutionary in eliminating gender discrimination and establishing equal property rights for daughters. This transformation represents a significant evolution from the traditional patriarchal structure to a more egalitarian approach that recognizes women’s equal status in family property matters. data.unwomen+2

Despite codification, both schools continue to influence family dynamics and property disputes across different regions of India, with Dayabhaga primarily in Bengal, Assam, and Tripura, and Mitakshara in the rest of the country. Understanding these distinctions remains crucial for legal practitioners, family members, and courts dealing with partition disputes and property rights in Hindu families. ipleaders+2

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