Essay on Joint Family and Old Hindu Law
These were followed by the rule that the brothers may in this manner live together, or may, to acquire religious merit, live separately; for by living separately religious merit grow, hence partition is meritorious. Joint family living was favoured, so was partition but Manusmriti, in clear words, denied to the sons’ right to divide the patrimony during the life-time of their parents; they may do so only on the death of their parents.
The state of society as evidenced from the aforesaid statement of law in Manusmriti was more after the patriarchal model than the joint family model as we find. The difference between the position of a father as the patriarch and that of the eldest brother as the head of joint family is quite marked.
The two distinct systems of Hindu law, Dayabhaga and the Mitakshara, have evolved from this position taken by Manu. After Manu, Narada and Devala followed his views. Kautilya, in his Arthashastra, was also of the same view. But Vishnu, Yajnavalkya and Brihaspati conceded this absolute dominion to the father only in respect of property acquired by the father himself and in respect of property inherited by the father they made the sons equal and joint owners with him.
There were thus two schools of thought long before the time of Vijnanesvara and Jimutvahana. The earlier theory of Manu, followed by Narda, Devala and Kautilya found its most powerful exponent in Jimutvahana, and is still the law in Bengal and Assam. Vijnanesvara, on the other hand, by his powerful espousal, made joint family and joint property the settled law for the vast majority of Hindus.
He said : “Therefore it is settled point that property in the paternal or ancestral estate is by birth, although the father has independent power in the disposal of effects other than immovables for indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection, support of the family, relief from distress, and so forth; but he is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained, though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born, and they who are yet unbegotten, and they who are still in the womb require the means of support. No gift or sale should therefore be made.”