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MITAKSHA DAYABHAG
RA HA
MITHAKSHARA SCHOOL
DRAVIDA/MADRAS
DAYABHAGA SCHOOL
Jimutavahana propounded it
It is digest of all the codes
Applies to West Bengal & Assam
If any conflicting point of law comes up-
Mithakshara is followed
Difference between Mithakshara & Dayabhaga
1. Law of succession
Inheritance is based on Inheritance is based on
principle of principle of religious
propinquity = nearness efficacy= conferring
in blood relationships religious benefits
Preference of agnates (pindadana)
over cognates No preference of agnates
over cognates
2. Birthright & JF
right is given by birth No birthright to sons are
itself to sons(up to 3 given
generations) in JFP Father remains the
At any time this right can ultimate authority over
be exercised & sought for the properties, hence no
partition partition right till then
So, survivorship is All properties devolve
followed upon the inheritance rule
3. Joint Family Property
Community of ownership Unity of possession is
& unity of possession there , but no community
So, before partition no of ownership
separate property Before partition, its
Interest changes as per separate fixed shares
increase in the number of only, so can be alienated
persons Interest does not change
as shares are fixed
priorly
HSA, 1956
TERMS RELATING TO SUCCESSION
COMMON ANCESTOR
all male members- their wives
+
unmarried daughters( sometimes widowed) +
illegitimate son
Characteristics
Perpetual existence
not a corporate entity/juristic person
No members can be included outside the family
unless through adoption/ marriage
Status in HJF is acquired by birth
Married daughters
Children given in adoption
Hindu son marrying a non- Hindu wife
Joint in food, shelter & estate- not conclusive
Hindu undivided Family & Hindu Joint Family
Classical-
1. Apratibandha Daya /unobstructed heritage
2. Sapratibandha Daya/ obstructed heritage
Basically two-
3. Separate/ Self acquired property
4. Joint Family/ Coparcenary
Separate Property
Partnership HUJ
UK
KARTA
INDIA
Female Karta
A B
It can be oral, written or inferred from context
It binds all the members including minors & unborn
Needs to be fairly done without fraud & not depriving
any members rights
It can be carried out in a will but not to unborn
I hereby
bequeath my
property ..
ALIENATION
Alienation
1. Gift of ancestral IP & MP to an extend
2. Sell/mortgage ancestral IP/MP payment of
antecedent debts not illegally/immorally incurred
. Movable property- limited portion to anyone out
of Gift of Affection cannot do so through will
. Immovable property- limited portion to son for
pious obligation- cannot do so through will
- Allowed to daughters after Guramma Case
Antecedent debt
Immoral Debt
. BOP is upon alienee to prove the antecedent debt
. BOP upon sons to prove that it was immoral
II) Manager/Karta
Performance of pious
obligations / religious
ceremonies
To any extend it can be done
For religious endowments
also
Gangi v. Tammu. 1927, PC
Small portion of JFP-may be
allotted for religious charity
III) RIGHTS OF COPARCENERS
Limitation:
- 12 years alienation by Father/Karta
- 12 years- recovery of possession of IP alienated
by other coparceners
- 6 years- declaration suit
Ramkishore v. Jainarayan,1913, PC
A
Separate property
Clear As debt to
the extend of Ss
share only not S
personally
2. Undivided coparcener's interest when liable for
debts
B W
Survivorship- SP- Rs.5000
HUFP
3. Liability of JFP for fathers Debts
Taking of Accounts
B) PERSONS WHO ARE ENTITLED TO SHARES
Partition
Son begotten before partition & born after
Father
ADOPTED SON
ILLEGITIMATE SON
Only Maintenance
COMMUNICATION
MUST
Modes of Partition
R U L E S R E L A T I N G T O M E T E S &
BOUNDS
1. If Fathers & Sons Equal shares to all in HJFP
2. If coparcenary between brothers only- Equal
3. Each branch takes shares per stripes(i.e., according to
stock)as regards every other branch, but members of
each branch takes it per capita as regards each other
4. Coparceners interest devolves by survivorship so
for deceased male coparcener, their share will be
devolving to the his male descendent within the
coparcenary
E. Reopening of partition
1. Rights of sons