CHANAKYA NATIONAL LAW UNIVERSITY

Introduction
The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognised. It lays down only one mode of succession and the

same rules of inheritance apply whether the family is divided or undivided and whether the property is ancestral or self-acquired. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father's life time.

However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares alongwith their brothers. Since this ownership arises only on the extinction of the father's ownership none of them can compel the father to partition the property in his lifetime and the latter is free to give or sell the property without their consent. Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of the male heirs dies, his heirs, including females such as his wife and daughter would become members of the joint property, not in their own right, but representing him. Partition means to divide into parts or to separate and under Hindu law, it general means a division or spitting of a joint family into smaller, separate and independent units, with conferment of separate status on the undivided coparceners in a joint family, as it is not merely the division of the family, but in essence, it is the disruption of the undivided coparcenary in a joint family. Upon a partition, a Hindu male gets the status of an individual, in comparison to the status that he enjoyed previously, as that of an undivided coparcener. The status that he receives is a now a fixed specific share, over which he can exercise excessive control. The coparcenary property will now be treated as separate property. It his separate property with respect to all those from whom he has separated. Under Dayabhaga law, every adult coparcener, male or female,1 (hindu women to property act,1937) is entitled to enforce a partition of the coparcenary property but they are entitled to the partition of the property only after the death of owner who died intestate.

Durga Nath v. Chintamoni (1940) 31 Cal 214

1 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY

Meaning of partition
Partition means to divide into parts or to separate and under Hindu law, it general means a division or spitting of a joint family into smaller, separate and independent units, with conferment of separate status on the undivided coparceners in a joint family, as it is not merely the division of the family, but in essence, it is the disruption of the undivided coparcenary in a joint family. Partition defined in the Mitakshara School as the allotment of individual of definite portions of aggregates of wealth over which many persons have joint ownership. Under Mitakshara the coparcencers do not have a definite share and it is only on partition that a coparcener becomes entitled to a definite share. Under the mitakshara school, partition means two things: Severance of status or interest, and Actual division of property in accordance with the shares so specified, known as partition as metes and bounds According to dayabhaga, partition means the indication of the ownership of one out of many by casting of a ball or pebble on a definite part of the land or cash. It arises with the reference to a portion only but which is indefinite because it is not possible to deal specifically with a particular portion since there is nothing to show for certain what portion belongs to whom. According to the dayabhaga law there is no ownership by birth. Every son takes a definite share, the moment the ownership of the father ceases owing to the death etc. Partition here means only division of property by metes and bounds.2 Under hindu law partition puts to the end the joint status in the hindu joint family. On the partition the joint family ceases to be joint and nuclear family or families may come into existence. However, partition under the mitakshara and Dayabhaga school is not the same. In mitakshara school, there is community of interests in the joint family property. When a partition is to be made among the mitakshara coparceners, the first step will be severance of status. Thereafter actual physical division of property will take place. Severance of status may be arrived at by agreement, by arbitration, or by unilateral declaration of an intention to
2

Abhaychandra v. pyari mohan, (1870)5 Beng LR 347

2 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY partition.3 But it is not so in Dayabhaga school, the interests of the coparceners specified and certain, partition under Dayabhaga school means physical division of the property or what is called partition by metes and bounds. Metes and bounds means a surveyor's description of a parcel of real property, using carefully measured distances, angles, and directions, which results in what is called a "legal description" of the land, as distinguished from merely a street address or parcel number. Such a metes and bounds description is required to be recorded in official county record on a subdivision map and in the deeds when the boundaries of a parcel or lot are first drawn. An under mitakshara law, so under Dayabhaga law, the true test of a partition lies in the intention of the parties to separate. In the case of a joint mitakshara family, that intention may be manifested by a mere agreement between the coparcencers to hold and enjoy the property in defined shares as separate owners without an actual division of the property by metes and bounds4. In the case, however, of a joint Dayabhaga family, such an agreement as aforesaid, is not a sufficient manifestation of the intention o separate; for according Dayabhaga law, the joint property is held, even while the family rmains joint, in defined and specific share. To constitute a partition according to Dayabhaga law, there must be something more than such an agreement.5 There must be a separation of the shares, and the assignment to each coparcener of specific portions of the joint property.

3 4

Apaji Narhari kulkarni v. R. Ravji Kulkarni, (1812) 16 Bom 29 Appovier v. Rama Subba Aiyan, (1866) 11 MIA 75 5 Bata v. Gopal (1970) 5 Cal LJ 417

3 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY

Effect and time of partition

Upon a partition, a Hindu male gets the status of an individual, in comparison to the status that he enjoyed previously, as that of an undivided coparcener. The status that he receives is a now a fixed specific share, over which he can exercise excessive control. The coparcenary property will now be treated as separate property. It his separate property with respect to all those from whom he has separated. The hindu male can do what he want to do with this separate property, he can alienate, sale, gift, leased etc and no other member of his family can stop him from doing so. If he has a male issues, the share of coparcenary property that he receives on partition, will be coparcenary property with respect to such male issues, who will have a right of ownership in it after the death of that coparcener if died intestate as a right of representation. Partition under Dayabhaga law takes place after the death of owner of the property who died intestate. Unlike mitakshara law, in which partition take place at time with intention of all or anyone coparcener during his lifetime. Example- A, B, C are the son of a Hindu male D governed by Dayabhaga law. During the life time of D A, B, C has no right on Ds property after the D died intestate coparcenary body is formed between A, B, C and partition will take place.

4 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY

Persons entitled to partition

Under Dayabhaga law, every adult coparcener, male or female,6 (hindu women to property act,1937) is entitled to enforce a partition of the coparcenary property but they are entitled to the partition of the property only after the death of owner who died intestate.

Sons, grandsons and great-grandsons- under dayabhaga law, a son is not entitled to a partition of the coparcenary property against his father. The reason is that a son, according to that law, doesnot acquire by birth an interest in the ancestral property. The same rules applies to grandsons and great grandsons. According to dayabhaga law, there cannot be coparcenary in the strict sense of the term between father and sons, or between a grandfather and grandsons. Under this law the father has absolute power of disposal of the property, whether ancestral or self- acquired. Where the property is held jointly by the brothers, having a common enjoyment, each of them has a fixed share, but a partition by metes and bounds can be demanded by any coparcener.

Illegitimate sons- according to all the schools, the illegitimate sons are not entitled to any share of the inheritance nor to any share on partition. They are entitled to maintenance only.

Alienee or Purchaser- the general is that right to demand partition is not available to a non coparcener. However, it has exception. Where a fractional share in a property, which part of a joint estate has been sold to the purchaser, he may sue for partition of the partition of the whole joint estate.7

6 7

Durga Nath v. Chintamoni (1940) 31 Cal 214 Barahi v. Debkamini, (1893) 20 Cal 682

5 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY Wife- since a father, according to Dayabhaga law, has absolute power of disposal over his property, whether ancestral or self- acquired, he may in his lifetime, so a wife is not entitled to a demand partition.

Mother- A mother in dayabhaga law, cannot herself demand a partition; but if a partition takes place between her sons, she is entitled to a share to a share equal to that of a son, after deducting the value of stridhana.

Grandmother- A grandmother(fathers mother) cannot herself demand a partition but: If a partition takes place between her sons and grandsons, or between her sons and predeceased sons daughter, who acquired a share as heir of father,8 she takes the share of a son; If a partition takes place between her grandsons, she takes the share of a grandson; If a partition takes place between her grandson and great- grandsons, she takes the share of a grandson.

Sibbosoondery v. Bussoomutty, (1881) 7 cal 191

6 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY

Subject matter of property on partition

In the dayabhaga law, all the joint family property as well as separate property of the Hindu male died intestate is the subject matter on partition. Property here implies immovable as well as movable, provided all the property of being divided. Example- land. It can be divided hence division is possible. Property may comprise items that are incapable of division due to their very nature, such as artefacts, books, clothes, arms, ornaments, household appliances and kitchen utensils, furniture, carriage or vehicle, animals, well, staircase, road, pasture land, family idoles ahd shrines etc. The rule for division of property is, that if it is capable of division, it should be should be so divided or partitioned but, if in trying to divide it, either its intrinsic value is lost9 or is substantially diminished10 or the property itself would be destroyed, then the following rules should be observed at the time of partition. Previous enjoyment irrelevant The manner of enjoyment of a property before partition, may not be a conclusive test for its allotment, nor would it have a bearing on its actual division. For example, a family owned a vehicle which was earlier being used by one coparcener. He doesnot get a preferential right over it at the time of partition just because in the past, it was in his exclusive control. This rule applies even in those cases where a coparcencer substantially improves his portion, but without the consent of, or in absence of an agreement with the other coparcencers. Compulsory common enjoyment Despite effecting a partition by metes and bounds, there might be some property which, byits very nature, cannot be given exclusively to one person, nor can it be sold, as it is essential to the enjoyment by the family members, of their shares, eg, a well staircase, road etc. Even after partition, these items will have to be shared by the erstwhile coparceners and their families.

10

Ganesh Swami v. Nakadi Swami AIR 1983 Ori 279 Debendra nath v. Hari Das (1910) 15 CWN 552

7 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY Balancing corresponding values of Properties This rule applies to those impartible properties which are usually multiple in number and whose value can reasonably be ascertained at the time of partition and which is not likely to rise substantially in the future, such as household items, kitchen utensils, vechile or

carriages, furniture, books etc. In these cases, the items are to be so divided that although each coparcener may not get identical things, but what one takes., its value is comparable to the items that are given to the other coparceners.11 Money compensation: Principle of Owelty Where there is only one impartible property, or these are few in number and the shares are more, or where no balancing is possible due to the difference in the value of the properties, then such items can be allotted to one person, while the other is given a compensation in terms of its money equivalent.12 This is also known as principle of owelty or equality of partition. Sale of Impartible Property and Distribution of cash proceeds Where either no balancing is possible or there is no agreement with respect to receiving money compensation; or where one or more coparceners wants a single item of impartible property, it can be sold and the cash proceeds can be equally shared by all the sharers. Sharing by Turns Where the impartible property has a special significance to the family, such as family idols or a place of worship, the members may share them by turns 13 and in the event of a disagreement, the court may direct the eldest in the family to retain it, yet at the same time, with junior members having a liberty to have access it.

11 12

The value if the item can be adjusted towards another. Ashanullah v Kali Kinkar (1884) ILR 10 Cal 675 13 Promotha Nath Mullick v. Pradyumma Kumar Mullicks (1925) 52 IA 245

8 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY

Legal incidents required for partition

Sons don not acquire any right by birth.According to mitakshara law, each son acquires at his birth an equal interest with his father in all ancestral property held by the father, and on the death of the father, the son takes the property, not as his heir, but by survivorship. According to dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time in the fathers death. On the death of the father, they take such property as is left by him, whether separate or ancestral, as heirs and do not by survivorship. Since the sons do not take any interest in ancestral property in their fathers lifetime, there can be no coparcenary in the strict sense of the word between a father and son according to Dayabhaga law, as regards ancestral property.

No right of partition or to call for accounts against father.Since sons according to dayabhaga law, do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father (as they can under Mitakshara law), nor can they call for an account of the management thereof from the father as they can under Mitakshara law. The father is the absolute owner of the property, and the property being his own, he can manage it in any way he likes.

Coparceners according to Dayabhaga law.According to Mitakshara law, the foundation of a coparcenary is first laid on the birth of a son. The son birth is the starting point of a coparcenary according to that law. Thus, if a Hindu, governed by Mitakshara law, has a son born to him, the father and son at once become coparceners. According to the dayabhaga law, the foundation of a coparcenary is that which is laid on the death of the father. So long as the father is alive, there is no coparcenary in the strict sense of the word between him and his male issue. It is only on his death leaving two or male issues, that the coparcenary is first formed. The formation of a coparcenary does not depend upon any act of the party. It is the creation of the law. It is formed on the death of the ancestor. It may be disolved immediately afterwards by partition, but until then the heirs hold the property as coparceners.
9 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY

Before the Hindu womens right to property act, 1937.A coparcenary under dayabhaga law could thus consist of males as well as females. Under mitakhsara law no female can be a coparcener with male coparceners. However, even under dayabhaga law, a coparcenary could not start with females.

Coparcenary propertyAs under the mitakshara law, so under dayabhaga law, coparcenary property may consist of ancestral property or of joint acquisitions, or of property thrown into the common stock, and accretions to such property. But dayabhaga includes separate also.

Each coparcener takes a defined share.A essence of a coparcenary under a mitakshara law is the unity of ownership. Of the other hand, the essence of a coparcenary under dayabhaga law is unity of possession. It is not unity of ownership at all. The ownership of coparcenary property is not in whole body of coparceners. Every coparcener takes a defined share in property, and he is the owner of that share. That share is defined immediately when inheritance falls in. it does not fluctuate with birth and death of family. It is the unity of possession that makes them coparceners. So long as there is unity of possession, no coparcener can say that a particular share of the property belongs to him; that he can say only after a partition. Partition then according to dayabhaga law, consist in the splitting up joint possession and assigning specific portion for the property to the several coparceners. According to the mitakshara law, it consists in splitting up joint ownership and in defining the share of each coparcener.

Right of purchasers of coparceners interest in executionSince a coparcener under Dayabhaga law takes a defined share in the property, a purchaser at a court sale of a share is entitled to be put in to physical possession of that share As to mitakshara law, no rights of purchasers of coparceners interest over the property in execution as a coparcener has no defined share in the property before partition.

10 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY

Conclusion

I like to conclude that partition general means a division or spitting of a joint family into smaller, separate and independent units. Under the Mitakshara School, partition means two things. Firstly, severance of status or interest and secondly, actual division of property in accordance with the shares so specified, known as partition as metes and bounds. Whereas, according to Dayabhaga law partition simply means actual division of property in accordance with the shares so specified, known as partition as metes and bounds. In Dayabhaga law partition take place only after the death of a Hindu male died intestate. Partition under Dayabhaga law cannot take place during the life time of the Hindu male. Under Dayabhaga law, every adult coparcener, male or female, (Hindu women to property act,1937) is entitled to enforce a partition of the coparcenary property. Here in Dayabhaga law, coparcenary property consists of both joint family properties and separate properties of the Hindu male. Properties are divisible whether being movable or immovable. But the property must be subject to be divisible. Where the property is indivisible 3 rules are followed to divided that property among coparcener. In most important feature of Dayabhaga law which make it different from Mitakshara law is that a Hindu male is an absolute owner of any property irrespective of joint family property or separate property and during his lifetime he can alienate, sale, gift etc can go anything with is property which he wishes to do. No other family member can stop him from doing so as they get property after his death as doctrine of representation is followed under Dayabhaga law.

11 PARTITION UNDER DAYABHAGA LAW

CHANAKYA NATIONAL LAW UNIVERSITY

Bibliography
books referred:
1. Poonam Pradhan Sexena, Family Law Lectures Family Law II, Second Edition, Lexis Nexis 2. Paras Diwan and Peeyushi Diwan, Family Law, Allahabad Law Agency, 2005 3. S.A Desai, Mulla Hindu Law, VOL. 2

12 PARTITION UNDER DAYABHAGA LAW