Introduction
Mitakshara Law thus devolves on the death- of a coparcener by
survivorship. Mitakshara law recognizes two kinds of devolution of property as
follows: -
1.
Devolution
by Succession is applicable to the Joint family property and
2.
Devolution
by Survivorship is applicable to Property held in severalty by the last owner.
The Dayabhaga Law applies to the jcommunities like Bengalis and
Assamese living in the States of Bengal and Assam and other parts of the world.
According to this law, the son doesn’t acquire any right by birth in the
ancestral property. The son’s right arises for the first time on the father’s
death. All properties thus, devolve by inheritance and not by survivorship.
Under this school of law, the coparcenary is formed only on the death of the
father. Females can also be coparcener. Dayabhaga law thus recognizes the only
devolution by succession and it doesn’t recognize the devolution by
survivorship as it recognizes in the case of Mitakshara Law.
A Joint Hindu family according to the Mitakshara Law consists of
a male member of a family with his sons, grandsons, and great-grandsons
according to Hindu Law. They collectively constitute a coparcenary of a Hindu
Family. They are different from members who are not coparceners as we have seen
earlier. This is of course under the old law prior to the amendment made by the
Hindu Succession (Amendment) Act, 2005. After the above amendment, A Joint
Hindu families can consist of male as well as female members since female members
have also acquired the status of coparcener as per the said amendment. Thus
now, members of a Hindu Joint family consists of the common ancestor and all
his lineal descendants up to any generation including the wife/wives (or widows)
and daughters of the common ancestor. A coparcenary is however a narrower body
of persons within a joint family. It consists of four successive generations of
lineal descendants as we have seen above.
As per the provisions of Section 2 of the Hindu Succession Act, 1956, the Act
applies
1.
To
any person, who is a Hindu by religion, in any of its forms or developments
including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or
Arya Samaj
2.
To
any person who is a Buddhist, Jaina, or Sikh by religion; and
3.
To
any other person who is not a Muslim, Christian, Parsi, or Jew by religion
unless it is proved that any such person would have been governed by The Hindu
law or by any custom or usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been passed.
It may be noted that the phrase “HUF” has been used in the
Statutes with reference to all the schools of law including Mitakshara,
Dayabhaga and others and not to any particular school of law. See in this
regard the decision of the Privy Council in the case of Kalyanji Vithaldas vs CIT
(1937) 5 ITR 90(PC).
The Dayabhaga School neither accords a right by birth nor by survivorship through a joint family and joint property is recognized. 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 lifetime. 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 along with 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. Since females could be coparceners, they could also act as kartas, and manage the property on behalf of the other members in the Dayabhaga School.
One of the important differences between the two schools is that under the Dayabhaga, the father is regarded as the absolute owner of his property whether it is self-acquired or inherited from his ancestors. Mitakshara law draws a distinction between the ancestral property (referred to as joint family property or coparcenary property) and separate (e.g. property inherited from mother) and self-acquired properties. In the case of ancestral properties, a son has a right to that property equal to that of his father by the very fact of his birth. The term son includes paternal grandsons and paternal great-grandsons who are referred to as coparceners. An important category of ancestral property is property inherited from one’s father, paternal grandfather, and paternal great-grandfather. The other categories are
i) Share obtained at a partition
(ii) accretions to joint properties and self-acquisitions was thrown into common stock. The point that deserves attention is that under traditional Hindu law, a daughter is not entitled to property rights by birth in such ancestral properties. In the case of separate or self-acquired property, the father is an absolute owner under the Mitakshara law.
Features of the Dayabhaga System
1. Widow’s Right to Inherit
Jimutvahana, combats the theory propounded by the Mitakshara school and criticizes it over the exclusion of the deceased brother who was either joint or reunited with his other brothers. He maintains that such a theory would be in conflict with the texts of Vrihaspati. Jimutvahana, whilst protecting the right of the window to hold property, states that whether the deceased be divided or undivided, his next heir is his widow in the case of him not being succeeded by a male issue.
Jimutvahana bases his theory on Vrihaspati who states, “Among brothers, who become reunited…there is no right of seniority if the partition is again made. Should any one of them die, or in any manner depart, his portion is not lost but devolves upon his uterine brother. His sister too entitled to take a share of it.” He thus supports the right of the sister to inherit from coparcenary as well.
The Dayabhaga school also contests the fundamental principle of the Mitakshara system that several undivided brothers are like joint tenants, each having an unascertained interest in the whole of the joint property, so that when on the death of one of the brothers, the joint property belongs exclusively to the survivors, since the ownership of the other brothers is not divested. Jimutvahana holds that several coparcenary are like tenants in common, each having a right to the undivided portion, so that on the death of one, there is no right of survivorship to intercept his widow’s right of succession under the text of Yajnavalkya.
To sum on this issue, in the Mitakshara system, the widow is entitled to inherit her deceased husband’s property only when he dies leaving behind no male issue and he dies separated from his brothers. Under the Dayabhaga system, the widow’s inheritance is not determined by whether he died separated or united.
Thus, by granting the widow the right to inherit her deceased husband’s property when he leaves behind no male issue, the Dayabhaga School dilutes the heavily patriarchal system prevalent in India at the time.
2. Self Acquired
Property
According to the Dayabhaga, the father is given absolute rights over his self-acquired property and sons have no inherent interest in it. Therefore, the father possesses the right to dispose of his self acquired property in a manner he chooses, without involving his sons. He may also decide to divide it amongst his sons at will in a proportion determined by him. He allows its division by the father at his will even when his wife is the child-bearing age, and it is, therefore, possible for more sons to be born because the sons are already born, and those yet to be born have no interest in the father’s self-acquired wealth, at least during his lifetime.
Running counter to this, the Mitakshara system lays out that the sons do have an interest since birth in their father’s self-acquired property, be it movable or immovable. Jimutvahana on the other hand does not recognize the son’s vested right in the father’s estate, and hence he cannot grant to the son the right to separate from the father at will. Whilst interpreting the Yajnavlykas, Jimutvahana has stated that the sons have an equal right in the ancestral estate along with their fathers. According to him, this applies to the situation where an undivided brother dies leaving behind him a son and when the deceased’s brothers divide, his son steps into the father’s shoes and takes the father’s share. Thus while a son does not possess an equal right with his father during the latter’s lifetime he inherits his father’s share when his uncles divide. Until then the property remains intact.
Partition During
Mother’s Lifetime
The Dayabhaga borrows from the treatise of Maskari in this field of inheritance. Maskari, commentating on the Gautama dharma sutra ‘urddhvam pituh putra rkhtam vibhajeran’, said that the expression “pituh” means both parents – father and mother because this word is an “ ekasesa dvandva” and therefore the sutra means that sons can divide ancestral property only after the death of both – father and mother. This provision has been mentioned in brief earlier in the previous chapter of this paper in “the evolution of the Dayabhaga school” and more light is shed on the same in this section.
The Dayabhaga borrowing from this interpretation of Maskari, lays down that after the death of the father the sons have no independent power to partition father’s estate throughout the lifetime of the mother, yet the son is given a position of eminence and the widow’s seemingly absolute right in the husband’s property is circumscribed by the rights of the son, and it is said that though the sons acquire ownership in father’s property immediately upon his death, the actual position is postponed until the death of the mother. However, the sons may divide the property with the mother’s consent.
Jimutvahana further lays down that when a person leaves behind more than one widow, each having an equal number of sons, the widows may partition the property amongst themselves and though he says that this partition is as per the widows and not their sons, yet it's submitted that the reference to an equal number of sons signifies that the mother’s right to partition is encroached by the sons, although in a subtle manner, and that each the widow is allowed to take an equal share only to pass on to her sons upon her death.
*Wife’ Share when the Husband Divides in his Lifetime
In this regard, both schools – the Dayabhaga and the Mitakshara concur and state, on the basis of the Yajnavalkas, that when a person divides his property whilst he is alive, he must treat both – his son as well as his wife alike. He must give his wife an equal share as that given to his son. But if the wife has received her stridhan, she would only be entitled to half the share of the son.
Share of the Unmarried Sister
Smriti rules dictate that the unmarried sister should get a one-fourth share in the family property. But Jimutvahana relaxes this rule to such an extent that it does not confer upon her any vested right to get that share. According to him what the law stipulates is that the brothers are under an obligation to arrange their wedding and cater to other “necessities”. What is “necessary” is not easily quantifiable and this may vary from family to family.
Neither accords a right by birth nor by survivorship through a joint family and joint property is recognized. 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 lifetime. 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 along with 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. Since females could be coparceners, they could also act as kartas, and manage the property on behalf of the other members in the Dayabhaga School. However, during the British regime, the country became politically and socially integrated, but the British Government did not venture to interfere with the personal laws of Hindus or of other communities. During this period, however, social reform movements raised the issue of amelioration of the woman's position in society.
The earliest legislation bringing females into the scheme of inheritance is the
Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on
three female heirs, i.e., son's daughter, daughter's daughter, and sister
(thereby creating a limited restriction on the rule of survivorship). Another
landmark legislation conferring ownership rights on the woman was the Hindu Women's
Right to Property Act (XVIII of) 1937.
This Act brought about revolutionary changes in the Hindu Law of all schools and brought changes not only in the law of coparcenary but also in the law of
partition, alienation of property, inheritance, and adoption. The Act of
1937 enabled the widow to succeed along with the son and to take a share equal
to that of the son. But, the widow did not become a coparcener even though she
possessed a right akin to a coparcenary interest in the property and was a
member of the joint family. The widow was entitled only to a limited estate in
the property of the deceased with a right to claim partition [5]. A daughter
had virtually no inheritance rights. Despite these enactments having brought
important changes in the law of succession by conferring new rights of
succession on certain females, these were still found to be incoherent and
defective in many respects and gave rise to a number of anomalies and left
untouched the basic features of discrimination against women. These enactments
now stand repealed.
The framers of the Indian Constitution took note of the adverse and
discriminatory position of women in society and took special care to ensure that
the State took positive steps to give her equal status. Articles 14, 15(2) and
(3) and 16 of the Constitution of India, thus not only inhibit discrimination
against women but in appropriate circumstances provide a free hand to the State
to provide protective discrimination in favor of women. These provisions are
part of the Fundamental Rights guaranteed by the Constitution. Part IV of The constitution contains the Directive Principles which are no less fundamental in
the governance of the State and inter alia also provide that the State shall
endeavor to ensure equality between man and woman.
Notwithstanding these constitutional mandates/directives given more than fifty years ago, a woman is still neglected in her own natal family as well as in the family she marries into because of blatant disregard and unjustified violation of these provisions by some of the personal laws. Pandit Jawaharlal Nehru, the then Prime Minister of India expressed his unequivocal commitment to carry out reforms to remove the disparities and disabilities suffered by Hindu women. As a consequence, despite the resistance of the orthodox section of the Hindus, the Hindu Succession Act, 1956 was enacted and came into force on 17th June 1956. It applies to all Hindus including Buddhists, Jains, and Sikhs. It lays down a uniform and comprehensive system of inheritance and applies to those governed both by the Mitakshara and the Dayabahaga Schools and also to those in South India governed by the Murumakkattayam, Aliyasantana, Nambudri , and other systems of Hindu Law.
Conclusion
Empowerment of women, leading to equal social status in society hinges, among other things, on their right to hold and inherit property. Several legal reforms have taken place since independence in India, including on equal share of daughters to property. Yet equal status remains illusive. Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out process. The government, the legislature, the judiciary, the media and civil society has to perform their roles, each in their own areas of competence and in a concerted manner for the process to be speedy and effective.
These amendments can empower women both economically and socially. and have
far-reaching benefits for the family and society. Independent access to
agricultural land can reduce a woman and her family's risk of poverty, improve
her livelihood options, and enhance prospects of child survival, education and
health. Women owning land or a house also face less risk of spousal violence.
And land in women's names can increase productivity by improving credit and
input access for numerous de facto female household heads.
Making all daughters coparceners likewise has far-reaching implications. It
gives women birthrights in joint family property that cannot be willed away.
Rights in coparcenary property and the dwelling house will also provide social
protection to women facing spousal violence or marital breakdown, by giving
them a potential shelter. Millions of women - as widows and daughters - and
their families thus stand to gain by these amendments.
0 Comments
Please do not enter any spam link in the comment box.