Coparcenary Analysis

Coparcenary owes its origin to the concept of Daya i.e. property which has been explained by Vijnaneshwara while commenting on Yajnavalkyasmriti in the Daya vibhaga prakranam vayavahara adhaya. Here, it was discussed by the Vijnaneshwara that Daya is only that property which becomes the property of another person, solely by reason of relation to the owner. The words solely by reason of relation exclude any other cause, such as purchase.
Narada also approves the meaning of the Daya which is a coparcenary property because according to him, sons can divide only father’s property which has been approved by the learned.
Therefore, the unique concept of coparcenary is the product of ancient Hindu jurisprudence which later on became the essential
No coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals such as brothers, uncles, cousins nephews etc. It is a purely a feature of law and cannot be created by a contract. However, an adopted son may be introduced as a member of the coparcenary. Once the common ancestor dies, the coparcenary of the brothers can be created.
THE TWO SCHOOLS OF HINDU LAW:
The codified Hindu law lays down uniform laws for all the Hindus in the society. It leaves no scope for the existence of two schools of Hindu Law in the codified laws. Their relevance lies only in those areas in which there is no defined and codified law. It was in the era of digests and commentaries that these schools originated in.
1. Mitakshara
These rules have made the Mitakshara School reactionary.
There are four Sub-Schools under the Mitakshara School:
1. Dravidian School of thought (Madras school): It exists in South India. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption. (‘Sapindas’ – blood relation)
Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case) : The zaminder of Ramnad died any without sons and usually, such state would have escheated to the Government, his widow however adopted a son, with the consent of the sapindas of her husband.
But on the death of the widow, the Collector of Madhura notified that the Zamindari would escheat to the State. The adopted son brought a suit for declaration of the validity of the adoption. The question was that whether a widow can make a valid adoption without her husband’s consent but his sapinda’s consent.
The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that Hindu law should be administered from clear proof of usage which will outweigh the written text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absense of authority from the husband, a widow may adopt a son with the assent of his