[..4 C..]
JOINT FAMILY
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B) DAYABHAGA COPARCENARY
SHORT NOTES
Q.1. Separate property under Dayabhaga Law.
SYNOPSIS
1) Sons have no right by birth.
2) Coparcenary.
3) Each coparcener takes a definite share.
4) Unity of possession.
5) Doctrine of survivorship not applicable.
6) Joint family property and separate property
7) Karta.
8) Coparcener’s power of enjoyment and alienation of his share.
Mitakshara and Dayabhaga Schools differ drastically in the concept of a joint family. There are the following distinctions between them.
1) Sons have no right by Birth[1]:-
Unlike Mitakshara, Dayabhaga School has no joint family between father and son. Sons have no right by birth, and sons even have no right of survivorship. All property, ancestral or self-acquired, devolves by succession. The natural consequence of this system is that the father gets absolute power to dispose of the ancestral property as self-acquired property. Son cannot, during his lifetime, demand partition of the ancestral property from his father.
2) Coparcenary[2]:-
Under Dayabhaga law, the coparcenary starts at the death of the father; till then, the son has merely a chance of succession and not the right of succession. In other words, as long as the father is alive, no son will get any interest in the property and will not become a coparcener. Hence, there is no distinction between self-acquired and ancestral property under Dayabhaga law. So, for example, if there is father A and sons B, C and D, they cannot form a coparcenary till Father A is alive; however, on the death of A, the coparcenary will start between B, C, and D. Take another example if A dies, leaving a son B, who has two sons C and D. In this case the son, B only will succeed to the separate and ancestral property of his father, C and D will not get any interest in it (and hence cannot form coparcenary with B) until B dies.
Under the Dayabhaga, a coparcenary can consist of males as well as females. Meanwhile, under the Mitakshara School, females can never be coparceners.
3) Each coparcener takes a definite Share[3]:-
Under the Dayabhaga law, the coparcener gets a fixed share upon the death of his ancestor. Their share is pre-fixed, so there is no fluctuating or uncertain interest depending upon the births and deaths of other coparceners.
4) Unity of Possession:-
In the Dayabhaga coparcenary, there is a unity of possession. Therefore, though the share of sons is pre-fixed,[4] There is unity of possession, and no coarcener can say that this particular property will become his share.
5) Doctrine of survivorship Not Applicable[5]:-
As seen above, under Dayabhaga, the share of a coparcener is definite, i.e., all property is devoured by succession. Hence, there is no scope for the doctrine of survivorship. In other words, on the death of a coparcener, his share will pass to his heirs and not to the (male) surviving coparceners.
6) Joint family property and separate property[6]:-
Under the Dayabhaga School, unobstructed heritage[7] is not recognised. In other words, all property is treated as self-acquired property since it devolves[8] after the death of the ancestor and not before.
7) Karta:-
The position of the Dayabhaga Karta is the same as that of the Karta under Mitakshara School, with the minute difference that the Karta under Dayabhaga must render full accounts at all times when required to do so by any coparcener. Under Mitakshara law, the Karta has to render accounts only on the partition.
8) Coparceners’ power of enjoyment and alienation of his Share[9]:-
Since every Dayabhaga coparcener takes a definite share in the coparcenary property, he is entitled to use his share in the joint family property as he likes. Similarly, he has the full right to alienate his share of the coparcenary property. He may dispose of it by gift, sale or mortgage.
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[1] जन्माने मालमत्तेत हक्क नाही [जन्म से बेटों का कोई अधिकार नहीं होता है]
[2] हिस्सेदार [सहभागीदारी]
[3] प्रत्येक हिस्सेदाराला निष्चित हिस्सा [प्रत्येक सहदायिक एक निश्चित हिस्सा लेता है]
[4] पूर्व-निष्चित [पूर्व तय]
[5] उत्तरजीविता तत्व लागू नाही [उत्तरजीविता का सिद्धांत लागू नहीं होता]
[6] एकत्रित कुटुंब मालमत्ता आणि विभक्त मालमत्ता [संयुक्त परिवार की संपत्ति और अलग संपत्ति]
[7] विना अडथळा वारसा [अबाधित विरासत]
[8] पुढील पिढीस जाने [सौंपना]
[9] हिस्सेदाराचा त्याच्या हिस्स्याचा उपभोग आणि हस्तांतरण करण्याचा अधिकार [सहदायिकों की आनंद लेने की शक्ति और उनके हिस्से का अलगाव]