What do you understand by partition according to Dayabhag ? Who are entitled to partition Joint Hindu Family under this law ? Who arc entitled to a share on the partition ? Point out the points of similarity and distinction between Mitakshara and Dayabhag law.
Ans. Partition According to Dayabhaga Law—According to Dayabhaga, the 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 : “Partition consists in manifesting (or in particularising by the casting oflots or otherwise) a property which had arisen in lands or chatties, 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. Thus, according to Dayabhaga, each of the undivided coparcener has ownerhsip, 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, so that at no time does the ownership of one among several coparceners extends over the whole of the joint properly 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. The reason of this difference can easily be found in the different conception of the 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”. Who are Entitled to Partition ? Under the ayabhaga every adult coparcener, whether male or female, has a right to enforce partition. Sons, grandsons and great-grandsons of a Hindu governed by the Dayabhaga Law do not take interest by birth in the ancestral property and are therefore, not entitled to partition of ancestral property against their father. For the same reason no question of wife taking any share in the ancestral property arises. The rights of a widowed mother under the Dayabhaga Law are the same as those under the Mitakshara Law, except in the following respects—(i) Under the Dayabhaga Law a mother may inherit both in her own right as well as heirs of her deceased sons. (ii) Under the Dayabhaga Law a sonless step-mother is not entitled to a share on a partition between her step sons. Allotment of Shares– The rules of allotment of shares under the Dayabhaga are the same except that —(a) Sons are not entitled to any share in the presence of their father. (b) The share of a deceased coparcener passes to his heir, devisee or assignee. Where a property stood in the name of one of the coparceners and there etxsted an agreement between the coparceners showing the property as subject matter of partition, the property would remain a coparcenary property liable to be taken into account for partition, particularly in the circumstances when the subject-matter of property was purchased by the mother of the coparceners. In Dayabhaga School where the property is in the name of an individual coparcener, it must be proved to be coparcenary property by party asserting it to be so. Whereas in case of Mitakshara School any property possessed by a coparcent is presumed to be coparcenary, if there existed a coparcenary at the given time. Similarity between Mitakshara and Dayabhaga–The following are the points of similarity between the two—I. According to both the Schools of Hindu Law, the true test of partition lies in the intention to separate. 2. The purchaser of fractional share in the property of the joint family may sue for partition according to both Schools. 3. According to both the Schools a grandmother cannot herself demand a partion. 4. In both the Schools brothers take equal shares on partition. 5. In both the Schools each branch takes per stirpes as regards every other branch but the members of each branch takes per capita as regards each other. Distinction—The following are the points of distinction between the two schools—
1. According to Mitakshara school, a partition consists in ascertaining and defining shares of the coparceners. 2. According to Mitakshara, partition of effected by the exprerssion of an irrevocable intention to separate.
3. According to Mitakshara, mere institution of partition suit operates as partition. 4. According to Mitakshara, son, grandson and great-grandson can demand partition against three immediate ancestors. 5. According to Mitakshara, the wife herself can not demand partition, but is entitled to a share when husband and sons divide. 6. According to Mitakshara step-mother is entitled to a share even when she is sonless.
1. According to Dayabhaga, as shares are already defined, partition consists in the actual division of the property. 2. According to Dayabhaga partition is not affected unless there is a separation of shares and specifc portions are assigend to each coparcener. 3. According to Dayabhaga, partition is complete when decree is passed. 4. According to Dayabhaga, the son, grandson can not deman partition.
5. Under the Dayabhaga, no such right arises, as the father is the absolute owner and sons can not demand partition. 6. In Dayabhaga sonless step-mother is not entitled to a share.