The coparcenary under the Dayabhag is totally different from the Mitakshara law. Under the Mitakshara law the sons become coparcener with the father and take an interest in the coparcenary property by birth. Under the Dayabhag there cannot be a coparcenary between a father and his sons. So long as the father is alive the sons do not take any interest in the coparcenary property which is possessed by the father and right by birth in such property does not arise under the Dayabhag system.
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As a corollary, the sons cannot claim partition against the father. It is only on his death that sons can claim partition and division of their shares. Thus the sons become coparceners among themselves. The sons acquire an interest in the coparcenary property by succession not by survivorship.
ADVERTISEMENTS:
Thus so long the father is alive strictly there is no coparcenary between the father and the sons. So far the technical meaning of ‘coparcenary’ is concerned it comes into existence on the death of the holder of coparcenary property, provided he leaves two or more male issues or grandsons or great grandsons. The male issues of a deceased father form a coparcenary and become entitled as coparceners to the coparcenary as well as separate property left behind the father.
Illustration:
In the above diagram A dies leaving behind a son В and two grandson’s С and D. В does not constitute a coparcenary with С and D. He alone inherites the coparcenary as well as separate property of A. С and D do not acquire any interest in such property by birth. It is only on the death of В, С and D will succeed together and also constitute a coparcenary.