Mitakshara & Dayabhaga

MITAKSHARA,
DAYABHAGA AND
PROPERTY
Mitakshara School Dayabhaga School
As Regard Joint Property
Right to property arises by birth Right to property by death (of the

(of the claimant); hence the son is a last owner); hence son has no right
co-owner with the father in to ancestral property during
ancestral property. father’s lifetime.
After the commencement of

HSA Amendment 2005, the
daughter of a coparcener is
also a coparcener.
Father has a restricted power of Father has absolute power of
alienation and son can claim alienation and son cannot claim
partition even against the father. partition or even Maintenance.
The interest of a member of the joint The interest of every person would on
family would on his death passed to his death pass by inheritance to his
the other members by survivorship. heirs, like widow or daughter.
Sec 6(3) of HSA, as substituted by
the HS (Amendment) Act 2005
abolishes the principle of
survivorship.
As regard Alienation
Members of the joint family cannot Any member of joint family may
dispose off their shares while sell or give away his share even
undivided. when undivided.
As regard Inheritance
The principle of Inheritance is The principle of Inheritance is

consanguinity (i.e. blood spiritual efficacy.
relationship).
But cognates are postponed to Some cognates like sister’s son
agnates. are preferred to many agnates
PROPERTY IN HINDU LAW
•Separate Property
•Joint Property
•Joint Family Property
•Coparcenary
SEPARATE PROPERTY
(EXCLUSIVELY OWNED PROPERTY)
• Owned by person exclusively and enjoys absolute powers of disposal over it.
• The owner can sell it, mortgage it, gift it, bequeath it under a Will to anyone or
donate it for religious or charitable purpose or for public benefit in general.
• He can gift it to his sons, equal or unequal shares or to just one son to the
exclusion of all others, or to any other family member. No one can ask for its
partition or control its disposal in any manner.
• On his death, the property will go as per the laws of inheritance or testamentary
succession (in case he leaves behind a Will) and not by the doctrine of
survivorship, as no person can claim a right by birth, in this property.
JOINT PROPERTY
• Held jointly by two or more persons, with the incidents of

survivorship.
• Not necessary that the owner of joint property should be
family members.
• Can be family members, distant relatives, business partners
or even strangers to each other.
JOINT FAMILY PROPERTY
• Property held jointly by the members of a family.

• All members have one or the other right over it, which may or may not be
equal with respect to each other.
• Owned collectively by the coparceners, subject to the rights of
non-coparceners (maintenance, marriage etc.)
• In absence of any property owned collectively by the joint family, the
coparceners can pool in their separate property, throw it, in what is called
‘common stock’ with a clear intention to deprive themselves of their
individual or exclusive control over it. It is called Joint Family Property.
This can also be done to increase the quantum of Joint Family Property
(existing).
JOINT FAMILY ANCESTRAL
PROPERTY
Joint family property
+
Ancestral i.e. pre-existence
• Ancestor- refer to three immediate paternal ancestors in a whole
male line i.e. father, grandfather (father’s father), and great
grandfather (father’s father’s father).
• The ancestral property can be devolved either by inheritance or
in some cases even by a Will.
COPARCENARY PROPERTY
• Joint family property + Joint family Ancestral Property.

• Collectively owned by Coparceners
• Joint possession
• Limited power of disposal
• An ordinary coparcener cannot dispose of his undivided share
except by alienation. He had no power to make a Will of his
undivided share till 1956 and on his death the share passes by
survivorship and not by law of Inheritance.
CONVERSION OF SEPARATE PROPERTY
INTO COPARCENARY PROPERTY
• Where some coparcenary property is existing, a coparcener can throw

his separate property into the joint family funds, with a specific intention
of merging it or blending it with the same, and the separate property so
blended with the JFP would in itself, become the JFP.
• It is not necessary that for converting the separate properties into
coparcenary property, there must exist a JFP or even that there should be
at least 2 coparceners.
• Where family does not possess any property at all a coparcener can by a
declaration convert his separate property into Joint Family Property, and
where there are more than one coparceners, all of them may pool in their
separate properties if they so desire to form a JFP corpus.
DOCTRINE OF BLENDING
• ‘to blend’ means to share along with other, to merge, or to amalgamate into an existing fund
and it has to be contrasted with a renunciation or surrender of one’s interest in favour of
others, to the exclusion of oneself.
• The exclusion rights are converted into joint rights
• Once a property is thrown into the common stock of the Joint Family or is blended with it,
this blended property becomes the Joint Family Property and the interest of the coparcener
who had thrown his separate property into coparcenary property, is on par with the interest
of the other coparceners.
• Once the property is thrown into the common stock of the Joint Family, it is an irrevocable
act and it cannot be taken out of the Joint Family Property to be again impressed with the
character of separate property of the coparcener, who had earlier thrown it in.
• Due to the nature of the relationship or closeness between the family members and the
owner, members may be allowed to use the property of the owner with his express or
implied consent but this would not alter the character of the property from separate to
coparcenary.
• Intention to abandon separate claim must be clearly established.
DOCTRINE OF ACCRETION
• Accretion- increase by external addition.
• As a general rule, savings and profits made or earned out of the sale of or using coparcenary property, would also form
part of the coparcenary property.
• Where money is invested and the transaction brings in profit, the profits would be an accretion and their character would
be a coparcenary property.
• Acquisition of property made with the Joint Family Nucleus.
• Accretion means:
a. Accumulation of income of the JFP.
b. Property purchased/acquired with the Joint Family Income
c. Proceeds of the sale of JFP or property purchased out of such sale-proceeds.
• The burden of proof is upon the person who alleges that it is the JFP, to establish it. If he establishes that there was
sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to
that member of the family who claims it to be separate or personal property.
• The Joint Family Nucleus must not be small or inadequate. The income yielding capacity of Nucleus is an equally
important factor.
DOCTRINE OF DETRIMENT
• The general rule is that any property acquired with the help of joint family funds
or detriment of JFP, would itself take the character of JFP. It is irrespective of the
fact of whether it is the Karta who acquires it or an ordinary coparcener.
• Where joint family funds are used by a family member to improve his separate
property, such improvement, that is to the detriment of JFP, would result in the
alteration of character of separate property and give it the colour of a JFP.
• Where a coparcener uses his separate funds to improve the coparcenary property
without intending to use the funds as a loan, the separate property would merge in
the coparcenary property and the character of the whole of the property would
become that of coparcenary property(Blending).

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MITAKSHARA,

Right to property arises by birth Right to property by death (of the

After the commencement of

The principle of Inheritance is The principle of Inheritance is

• Held jointly by two or more persons, with the incidents of

• Property held jointly by the members of a family.

• Joint family property + Joint family Ancestral Property.

• Where some coparcenary property is existing, a coparcener can throw

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