Introduction
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:-
I] 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 great-grandson. 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.
Conclusion: – The Mitakshara system is Conservative. It provides good security in times of difficulties as a member can rely on the joint family. However sometimes a member can become a parasite. The Dayabhaga system is more liberal. Among the two the Dayabhaga is more likely to last in modern times with the growth of individualism, individual enterprise and economic compulsions.