For our studentsFAMILY LAW II

LawpreneurzFAMILY LAW II

Dayabhaga Coparcenary (Formation and Types)

Dayabhaga School of Law, which is based on the code of Yajnavalkya commented by Jimutvahana, governs the succession rules of Hindu Joint Families in only Assam and Bengal. Dayabhaga School of law recognizes devolution only by succession. The Coparcenary is established when the father is survived by more than one son. Sons inherit the property of father equally and with agreement form a Coparcenary. Unlike Mitakshara Coparcenary it is a creation by way of agreement and not by law. Son has no right by birth in the property of a father irrespective of the fact whether it is separate or ancestral. Coparceners inherit a definite share in the property of the father. At the time of death of coparcener his shares in the property along with the separate property are inherited to his heirs and on their willingness a Coparcenary is formed. The entire concept is based on inheritance and no difference between separate and Coparcenary property identified. Sons under Dayabhaga Family have only a right of maintenance father may dispose of the property at his will.

Under Dayabhaga School of Law the shares in Coparcenary property are definite and do not fluctuate with death and birth of members in family. On the death of a coparcener the property is devolved to heirs by way of inheritance.

Dayabhaga Property:

Dayabhaga Joint Family is a result of desire of family members to live together. The family is joint in food, worship and estate. Since the possession of the property is united but on definite share there is less chance of injurious act committed against one's property. Dayabhaga School of Law does not differentiate between joint family property or ancestral property and separate property since the concept of property is based on inheritance only. Dayabhaga Family is presumed to be joint family but the property possessed by each coparcener is not presumed to be a joint family property. In short Dayabhaga School of Law makes no difference between ancestral property and separate property.

Difference between Mitakshara and Dayabhaga Coparcenary

  • Mitakshara Coparcenary cannot be formed by way of agreement whereas Dayabhaga Coparcenary is formed with the desire of members living together with an agreement.
  • Mitakshara Coparcenary commences with the birth of a son whereas Dayabhaga Coparcenary commences on the death of father.
  • Mitakshara Coparcenary includes more than one generation and for formation a relation of father and son is essential. In case of Dayabhaga Coparcenary it can be formed only in the same generation heirs.
  • Mitakshara Coparcenary provides limited right on property to coparcener. In Dayabhaga Coparcenary the coparcener has absolute right over the property.
  • Mitakshara Coparcenary provides fluctuating share on the property whereas in Dayabhaga Property the shares of coparceners are definite.
  • Mitakshara Coparcenary considers daughters as coparceners, after passing of Hindu Succession (Amendment) Act, 2005. In Dayabhaga Coparcenary if a deceased is survived by wife and daughter, they both can form a coparcenary with the remaining coparceners. Hence not only daughters but even widows can be coparceners in Dayabhagar Coparcenary.

Alienation of Property (Separate and Coparcenary)

Alienation of a property means a transfer of ownership rights of a property. Alienation can be effected by way of sale, lease, mortgage, gift, or license. In a Hindu Joint Family the Coparcenary property is possessed by the coparceners. The ancient rules governing Hindu Joint Families provides that Karta can alienate property in certain circumstances which are – Apatkale (during emergency), Kutumbarthe (for the purpose of family), and Dharmarthe (for religious purpose). These categories were transformed into other with the modernization.

Alienation of Property of Hindu Joint Family can be done by a Karta, Coparcener and Father. These entities possess different rights of alienation.

Alienation of Joint Hindu Property by Karta:

Karta can alienate property in three circumstances:

  • Legal Necessity
  • Benefit of Estate
  • Performance of religious & indispensable duties

Legal Necessity means a necessity which can be justified in law or sustained in law. The Prerequisite conditions to validate any alienation under Legal Necessity are that the purpose shall be lawful and the family does not have any alternative resource from which the necessity can be fulfilled. Examples for this kind of necessity is to provide food, cloth, shelter to family member, for marriage expenses, medical expenses, payment of rent etc.

Benefit of Estate includes those kinds of necessities which are required to benefit the joint family estate. The transactions which are made to bring advantage to the property will be considered valid. For example – sale of a small portion of property to improve condition of a property which's valued more; or to fight hostile litigations against a property which's valued more than the property sold etc.

Performance of religious & indispensable duties has also been given importance, and alienation made for this purpose by Karta is also valid. In case when family has a requirement to perform a religious ceremony, a property can be alienated to generate income to fulfill it. In case when a family has contracted past debts for this purpose that can also be paid by alienating family's property. Apart from aforementioned circumstances Karta can alienate the Joint Hindu Family Property for any other purpose with the consent of major coparceners.

Alienation of Joint Hindu Property by Coparcener:

There can be two ways to alienate property by coparcener:

  • Involuntary Alienation
  • Voluntary Alienation

Involuntary Alienation of interest of a coparcener in the joint family property is done when a coparcener has taken a separate debt and has exhausted with other resources to pay it and court orders to execute a sale of the undivided interest of a coparcener from joint family property. This can be done during the lifetime of the coparcener with the o rder of court in the execution proceeding of the debt of such coparcener.

The concept of Involuntary Alienation of undivided interest of coparcener in a property leads to the idea of extending the same to a coparcener as a matter of right. Voluntary Alienation can be done when a coparcener with his willingness alienates his undivided interest in joint family property to someone either by way of Gift, Sale and mortgage or renunciation. Mitakshara School of Law considers alienation of undivided interest of a coparcener by gift wholly invalid whereas Dayabhaga School of Law confers absolute right to coparcener to alienate his part or a part of his share or property by way of Gift. In the case of Brindaban Tiwary vs. Awadhesh Tiwary {2007 (4) PLRJ646, it was decided that in alienation by way of sale and mortgage coparcener has to take consent of other coparceners unless the alienation is for legal necessity, it was further held that even if the alienation is in favor of other coparcener consent of other coparcener with that regard shall be taken. Earlier the rule was, as held in Thamma Vnkata Subbamma V. Thamma Rattamma (1987 AIR 1775), that a coparcener can alienate his undivided interest in the joint family property for a valuable consideration even without consent of other coparceners. Coparcener can alienate property by renunciation as well, in case when the share in the joint property has been alienated, consent of other coparceners is required. Even when it is in favor of other coparceners but if the alienation of entire share in favor of all other coparcener is made then the consent is not required. Coparcener may renounce his share with a condition of payment of maintenance.

Alienation of Joint Hindu Property by Father:

The Hindu Joint Families are composed of lineal descendants of one ancestor having absolute power to control the affairs of family members and property. Importance has been placed on a Father in Hindu Joint Families. The power of father is even more than the powers of Karta. In Dayabhaga School of Law, Father possesses absolute power of alienation of ancestral as well as separate property. Mitakshara School of Law does not give absolute power of alienation of joint family property to a father; he has absolute power of alienation of only separate property. However certain extra rights of alienation of family property is allotted to a father than Karta and a coparcener. Father may validly alienate the joint family property in two circumstances:

  • Gift of love & affection
  • Alienation to discharge his personal antecedent debt

Father may alienate a small portion of the joint family property by way of gift to his wife or daughter or son-in-law which has been considered valid by Indian courts. Alienation under this category can be validated only after ascertaining the relationship between father and the person in whose favor gift is made as the relationship shall establish love and affection of father. Here the gift can be a small portion of the movable property of the family; in case of immovable property Indian courts have considered alienation of small part of immovable property to a daughter as valid. Hon'ble Supreme Court of India held in the case of Guramma Deshmukh vs. Malappa (1964 AIR 510) that a father can validly alienate a small portion of immovable property of the joint family property by way of gift to daughter for her maintenance.

Father has right to alienate joint family property to discharge his antecedent debts as the sons, who are usually coparceners, are under pious obligation to discharge his debts. The Bombay High Court in the case of Bij Narain vs. Mangla Prasad {(1924) 26 BOMLR 500} settled a prerequisite condition for such alienation which is that the debt taken by father should be antecedent and shall not be for unethical or immoral purpose.

In cases when Karta, Coparcener or father alienates for any other purpose or oversteps while alienating joint family property the same can be challenged in court of law by other coparceners or family members having interest in the property and may get the same set aside.

Rights and Remedies of Alienee:

Alinee is the one in whose favor the alienation has been made. Alinee has been granted rights by Indian courts, which are – Right to Partition, Right to Mesne Profits, Right to possession, and Duty of being liable for the charges with which the property is alienated. Alinee possess right to effect general partition from the property of coparcener. Even if Alienation was made of a small portion or amount of coparcener's interest, a General Partition can be sought to actuate the alienation by Alinee as the concept of partial partition which was followed by Indian Courts previously has been abolished by Supreme Court. Further, Alinee has a right of Mesne profits over the property alienated to him from the day of passing of the decree of partition suit. Alinee also has a right of possession of the property alienated after the partition and none can restrict him from possession of the property. However joint possession can't be granted to Alinee, possession of property after general partition is only valid. Along with the rights, Alinee has a duty to take the alienated property with all the charges and liabilities over it which coparcener had before alienation.

Partition and Re-Union

Partition means to divide into parts or to separate. In view of Joint Hindu Family it means division of joint family into smaller units. It means Hindu Joint family never comes to end as even after partition it gives birth to other smaller joint families; however that is possible only when those who are seeking partition have remaining lineal descendants. Partition can be done in presence of at least two coparceners in the Hindu Joint Family. Partition can be of two kinds: De facto Partition and De Jure Partition. De Jure partition refers to a partition which has taken place but actual possession has not been given. De facto Partition means when the partition has actually taken place, not only the ownership but also the possession of a property has been transferred.

Partition can be made of only Joint Hindu Family Property; separate property of a coparcener can never be subjected to partition. At the time of partition, previous possession of property is not important. In case of indivisible property of the family when the number of such property is lesser than the number of those claiming right over it, the value of same can be given to those not receiving it. In a situation when the property has a special significance, e.g. idol of any god worshipped by the family, the eldest coparcener may get it by order of court with the right of access to other coparceners and family members. At the time of effecting partition it is not required to divide entire joint family property or all coparcener. The share of the coparcener seeking partition may only be divided and others may remain united in Coparcenary; however partition happens with a branch of a person hence the interest of lineal descendants of the person seeking partition will also be partitioned. Partition is a right of not only a coparcener but also alinee in certain cases however this is not available in Dayabhaga Family, as only coparcener has the right of partition of the property.

Partition can be demanded by a major coparcener. In case of minor coparcener he may through his next major friend demand a partition. Once the partition is made it cannot be revoked without the consent of all coparceners. Partition can be re-opened in few circumstances:

  • When any property was left out at the time of partition and there is no possibility of distributing the same without re-opening the partition,
  • When any property was concealed by fraud at the time of partition,
  • When the partition was unjust and unfair to any coparcener who was minor at the time of partition.

Once the partition made it does not bar the family members from reuniting. Family members separated by effecting partition may with agreement reunite to live together once again. Reunion can take place only at the instance of those coparceners who partitioned if new members are added in the branches of the coparceners who partitioned they are not entitled to be a part of reunited Coparcenary. Reunion can be done either by dwelling together or by a formal agreement of reunion. It is not required to have existence of the similar property which were separated since reunion is for love and affection of family members with the desire of living together. Once the agreement of reunion is made it restores the family and Coparcenary, coparceners have a joint possession of a property now. Reunion cannot be implemented by a minor unlike partition where the representative of the minor may demand partition.

LawpreneurzDetails of lecture

Sr No. Topics
1 Hindu Joint Family - Part 1
  • Origin & Nature of Hindu Joint Family
  • Coparcenary & its characteristics
  • Distinction between the Joint Hindu Family & Coparcenary
  • Mitakshara Coparcenary (Formation and Types)
2 Joint Family - Part 2
  • Dayabhaga Coparcenary (Formation and Types)
  • Difference between Mitakshara and Dayabhaga Coparcenary
  • Alienation of Property (Separate and Coparcenary)
  • Rights and Remedies of Alienee:
  • Partition and Re-Union
3 Inheritance
  • Hindus (The Hindu Succession Act, 1956)
  • Succession to property of a Hindu male dying intestate
  • Devolution of Interest in Mitakshara Coparcenary Property
  • Disqualifications relating to Succession
  • General Principles of Inheritance
  • General rules of succession and exclusion from succession among Muslims
4 Succession - Part 1
  • Non-Testamentary Succession among Christians
  • Non-Testamentary Succession among Parsi
  • Non-Testamentary Succession among Jews
5 Succession - Part 2
  • Testamentary Succession among Hindus,
  • Testamentary Succession among Muslims
  • Testamentary Succession among Christians
6 Family Courts & Gifts (Hindu and Muslim)
  • Salient features of The Family Courts Act, 1984.
  • Salient Features of The Protection of Women from Domestic Violence Act, 2005.
  • Essentials of valid Gifts among Hindus
  • Essentials of valid Gifts among Muslims

Lawpreneurz Student Testimonial

I subscribed to Lawpreneurz for lectures on various core subjects forming a part of the syllabus for DJSE. These lectures proved to be of great help not only in terms of conceptual clarity but also constant availabilty. Law students should definitely access these lecures.

Shipra Dhanker
Shipra DhankerTopper for Delhi Judicial Services 2019