According to Dayabhag law partition consists in splitting up joint possession, i.e., separating the shares of the coparcener or, in other words, dividing the property by metes and bounds among the several co-sharers.
The Dayabhag defines partition: “Partition consists in manifesting (or in particularising by the casting of lots or otherwise) a property which has arisen in lands or chattels, but which extended only to a partition of them, and which was previously unascertained, being unfit for exclusive appropriation, because no evidence of any ground of discrimination existed.
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ADVERTISEMENTS:
On partition a special ascertainment of property or making of it is known”. In Dayabhag law each of the coparcener has ownership not over entire joint property but over particular portion thereof. It becomes manifest when upon partition these several portions are allotted specifically to several coparceners. Here the ownership of a coparcener extends over a part, unascertained and undefined before partition but it becomes defined and ascertained after partition.
Persons Entitled to Partition:
Under the Dayabhag law all the adult coparceners including female heirs can demand partition. The powers of widowed mother are similar to that of the Mitakshara except in the following respects:
(i) Under Dayabhag, a mother may inherit both in her own rights as well as heirs of her deceased sons.
(ii) Under the Dayabhag, a sonless step-mother is not entitled to a share on a partition between her step-sons.
Allotment of Shares:
ADVERTISEMENTS:
The rules of allotment of shares under the Dayabhag are the same except that—
(a) Sons are not entitled to any share in the lifetime of his father;
(b) The shares of a deceased coparcener passes to his heir, devisee or assignee.