Mitakshara and Dayabhaga Schools

Birthright and survivorship in the Mitakshara against inheritance and fixed shares in the Dayabhaga

Scope: Side-by-side comparison of the two schools. Their origin and regions are in the note on Schools of Hindu Law.

7 min read
Sources, Schools and Hindu Joint Family

In one minute

The two schools differ on one central question: when does a son get a right in family property? In the Mitakshara he gets it at birth. In the Dayabhaga he gets it only when the father dies.

This leads to other differences. The Mitakshara has shares that change and passes a dead member's share by survivorship. The Dayabhaga has fixed shares and passes them by inheritance.

Exam focus

  • Frequency: Occasionally asked
  • Usually asked as: Short answer (4 to 6 marks)

Legal provision

  • Section 6(1), Hindu Succession Act, 1956 (as amended in 2005): in a Mitakshara joint Hindu family, the daughter of a coparcener becomes a coparcener by birth, as the son does.
  • Section 6(3): on the death of a Hindu after 2005, his interest in Mitakshara joint family property passes by will or by succession under the Act and not by survivorship.

Meaning and definition

Mitakshara rests on the birthright of a son in ancestral property. Dayabhaga rests on the sole ownership of the father during his life. In the Mitakshara the family holds property as joint owners with changing shares. In the Dayabhaga the sons hold as co-owners with fixed shares after the father dies.

Detailed explanation

Step 1: the Mitakshara position

A son, grandson and great-grandson each get an interest in ancestral property at birth. Until partition no one has a fixed share. A member's share shrinks when a new coparcener is born and grows when one dies. Traditionally a dead coparcener's share passed to the others by survivorship, not to his own heirs. Since 2005 daughters are coparceners by birth too.

Example. Ramesh, a Mitakshara Hindu in Nellore, has a son born in 2010. The son holds a coparcenary interest in Ramesh's ancestral land from the day of birth.

Step 2: the Dayabhaga position

The father is the full owner of ancestral and self-acquired property while he lives. He may give or sell it without his sons' consent. His sons get a right only after his death, by inheritance. Each then holds a definite share, so he can sell it even before partition.

Example. Biswas, a Dayabhaga Hindu in Kolkata, sells his ancestral house. His son cannot object, because he has no right in it while Biswas lives.

Step 3: where the schools meet today

The Hindu Succession Act, 1956 now governs intestate succession for both schools. The practical gap is therefore mainly about joint family property and the coparcenary. Dayabhaga families have no coparcenary of sons by birth, so section 6 does not apply to them in the same way.

Don't confuse: Mitakshara and Dayabhaga

PointMitaksharaDayabhaga
Right of a sonBy birthOnly on the father's death
Father's power over propertyRestricted for ancestral propertyFull owner, free to give or sell
Share of a memberChanging until partitionFixed and definite
On a member's deathSurvivorship, traditionallyInheritance
Sale of a share before partitionRestrictedAllowed
Sub-schoolsFourNone

Inside the concept. In Vijayawada a young man claims partition of ancestral land while his father lives. He may, because he is a Mitakshara coparcener.

Just outside it. In Kolkata a young man makes the same claim against his Dayabhaga father. He cannot, because the father is the full owner.

Common mistakes

  • Writing that Dayabhaga has joint ownership with a birthright. It has neither.
  • Saying survivorship still applies in full. Section 6(3) replaced it for deaths after 2005.
  • Applying section 6 to Dayabhaga families without noting it speaks of the Mitakshara.
  • Forgetting that Dayabhaga shares are fixed, which is why they can be sold early.

Apply it

Problem

Kiran, a Dayabhaga Hindu in Howrah, owns ancestral land. His son Anil, aged 25, asks for a partition now, saying he is a coparcener. Kiran refuses. Can Anil succeed?

Issue

Does a Dayabhaga son have a right in ancestral property during his father's life?

Rule

In the Dayabhaga the father is the owner, and sons get rights only on his death.

Application

Anil's claim rests on the Mitakshara idea of birthright. That idea does not apply to a Dayabhaga family.

Conclusion

Anil cannot compel a partition while Kiran is alive.

Leading case laws

  • State Bank of India v. Ghamandi Ram

    Facts. A joint Hindu family firm lost its Pakistan bank account at Partition and sued the bank's successor in India.

    Principle. The Supreme Court described a Mitakshara coparcenary as a creature of law. It listed its incidents: birthright, right to partition, joint ownership of the whole, common possession and survivorship.

    Why it matters. It is the standard source for the features of a Mitakshara coparcenary.

  • Vineeta Sharma v. Rakesh Sharma

    Facts. The question was whether a daughter is a coparcener if her father died before 9 September 2005.

    Principle. The Supreme Court held that a daughter is a coparcener by birth, and her father need not be alive on that date.

    Why it matters. It places daughters inside the Mitakshara coparcenary on the same footing as sons.

How to write this answer in the exam

5-mark answer

  1. Authors and regions in one line each.
  2. Birthright against rights on death.
  3. Survivorship against inheritance.
  4. Fixed against changing shares.

10-mark answer

  1. Origin of each school.
  2. Mitakshara doctrines with an example.
  3. Dayabhaga doctrines with an example.
  4. Comparison table.
  5. Effect of the 1956 Act and the 2005 amendment.
  6. Ghamandi Ram and Vineeta Sharma.

Key points to remember

  • Mitakshara: right by birth, changing shares, survivorship (traditionally).
  • Dayabhaga: right on the owner's death, fixed shares, inheritance.
  • A Dayabhaga share can be sold before partition.
  • Section 6, Hindu Succession Act: daughters are Mitakshara coparceners by birth.
  • Section 6(3): survivorship is replaced by succession for deaths after 2005.

Quick self-test

1. In which school does a son get a right by birth?

The Mitakshara.

2. Can a Dayabhaga father sell ancestral property without his sons' consent?

Yes. He is the full owner while he lives.

3. Which case lists the incidents of a Mitakshara coparcenary?

State Bank of India v. Ghamandi Ram.

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