History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1066

v4.c63.1066

*Vibhāga* (partition) is defined by the Mit.¹⁰⁴³ as the allotment to individuals of definite portions of aggregates of wealth over which many persons have joint ownership. The Dāyabhāga found several faults with this definition, the principal criticism being that it is cumbrous and farfetched to assume that the (joint) ownership of several (sons and the like) is first produced in the entire wealth of the father and then to hold that this joint ownership is subsequently destroyed. Its own definition is: "*Vibhāga* means the indication of the ownership (of one out of many) by the casting of a ball or pebble (on a definite part of the land or cash), which (ownership) arises with reference to a portion only (of the heritage of land and cash), but which is indefinite because it is not possible (for one man) to deal specifically with a particular portion (of the heritage) since there is nothing to show for certain what portion belongs to whom". The Dāyabhāga denies that ownership jointly arises in all co-sharers (before partition) over every portion of the heritage and states that it arises in portions of it but there is no certain indication to show which part belongs to whom and that the portion of each is made definite and ascertained by partition effected by casting a ball or pebble on a portion (saying 'this is A's exclusive portion' etc.). The Dāyatattva¹⁰⁴⁴ (p. 163) criticizes this definition. If before partition each of the co-heirs has ownership in part only of the entire heritage, what assurance is there that the allotment of a part to one co-heir by means of casting a ball will be as to the same portion over which his ownership arose before the partition? The Dāyatattva, though differing¹⁰⁴⁵ from the Mit. as to the doctrine of ownership by birth, agrees with it as to the definition of vibhāga. The differing definitions of vibhāga given by the Mit. and the Dāyabhāga lead to different results. Under the Mit. when there is a joint family of father and sons or grandsons, all these are coparceners and the ownership of the coparcenary property is in the whole body of coparceners i. e. there is unity of ownership while the family remains joint, no coparcener can say that he is owner of a definite share, one fourth or one fifth etc. A coparcener's interest is fluctuating, is capable of being enlarged by deaths and is liable to be diminished by births. It is only on partition that a coparcener becomes entitled to a definite share. On the other hand according to the Dāyabhāga there is no ownership by birth, the sons on the father's death constitute a coparcenary but the ownership of the family property is not in all the sons as a body. Every son takes a defined share, the moment the ownership of the father ceases (owing to death etc.). The share so taken does not fluctuate with births and deaths. The sons are coparceners in the sense that their possession of the property inherited from the father is joint i. e. *there is unity of possession, though there is no unity of ownership*.