The following features of difference between a Mitakshara coparcenary and a Dayabhaga coparcenary are noteworthy:
(i) As to how the Coparcenary Arises:
Under the Dayabhaga School of Hindu Law there is no right by birth. So during the father’s life-time between the father and the sons there is no coparcenary. When the father dies, his sons constitute a coparcenary.
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The Mitakshara coparcenary arises during the life-time of the father itself and his sons have right by birth.
(ii) Nature of Interest of Coparceners:
In the Dayabhaga School of Hindu Law each coparcener has a defined interest. It can be alienated. It does not pass by survivorship. In the Mitakshara coparcenary the coparcener’s share is not defined. It fluctuates with births and deaths of coparceners. It passes by survivorship. So the power of alienation either does not exist or is recognised only a limited extend (as in Bombay and Madras).
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(iii) Expansion of Coparcenary:
Under the Dayabhaga system, on the death of one coparcener his heirs become coparceners. So even females may in this way become coparceners. Under the Mitakshara system only males can be coparceners. On the birth of a son to a coparcener, the son also becomes a coparcener under the Mitakshara system. This is not so under the Dayabhaga for during the father’s life-time the son is not a coparcener.
(iv) Alienee’s Right to Ask for Partition:
The alienee under both systems gets an equity which can be worked out in a suit for partition. But under the Dayabhaga Law, the alienee can ask for joint possession along with the coparceners. This is because he has a defined share. Under the Mitakshara since there is no defined share, a suit for partition is the only appropriate remedy of the alienee.
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(v) Persons Entitled to Partition:
Under the Mitakshara as administered today the sons can institute a suit for partition even against their father. The Dayabhaga Law does not confer on the son a right by birth and so he has no right of partition as against the father.
(vi) The powers of the Manager are the same under both systems. But under the Dayabhaga the coparceners can call upon the Manager to account while under the Mitakshara the Manager is not liable to account for past management. In the absence of fraud, under the Mitakshara the liability of the Manager is only to account for the assets existing at the date of the partition.