Mitakshara Law & Dayabhaga Law - HUF

There are mainly two types of schools, which govern the Hindu Undivided family. They are :

1. Mitakshara Law

2. Dayabhaga Law

The Mitakshara Law applies tothe whole of India except Bengal and Assam. Under this law as it existed until the amendments made by The Hindu Succession (Amendment) Act, 2005, the son acquires by birth an interest in the ancestral property. Ancestral property, under the 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 father’s death. All properties thus, devolve by inheritance and not by survivorship. Under this school of law, the coparcenary is formed only on death of the father. Females can also be coparcener. Dayabhaga law thus recognizes only devolution by succession and it doesn’t recognize the devolution by survivorship as it recognizes in 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 family 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 upto 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 Privy Council in the case of Kalyanji Vithaldas vs CIT (1937) 5 ITR 90(PC).