Survivorship
Survivorship is the right by which a surviving coparcener in a Hindu joint family inherits the share of a deceased coparcener in the joint family property.
What is Survivorship?
**Survivorship** is a principle of Hindu law under which, when a coparcener in a **Hindu joint family** dies, their share in the joint family (coparcenary) property **automatically passes to the surviving coparceners** rather than devolving by succession or will. The property does not become part of the deceased's estate for purposes of inheritance — it is absorbed by the survivors by operation of law.
This concept is rooted in the traditional Hindu law principle that coparcenary property belongs to the family as a unit, not to any individual coparcener. When one coparcener dies, the remaining coparceners' shares simply expand, and the property continues to be held jointly by those who survive.
Legal Framework
The Hindu Succession Act, 1956 (as amended in 2005)
The law of survivorship has undergone a significant transformation:
- **Section 6 (Original):** Before the 2005 amendment, when a male Hindu died as a coparcener, his interest in the Mitakshara coparcenary property devolved by survivorship on the other coparceners, **not** by succession under the Act. However, there was a proviso (Explanation 1): if the deceased had a female heir (wife, daughter, mother) in Class I of the Schedule, then the share of the deceased would devolve by **succession** under the Act, not by survivorship.
- **Section 6 (Amended by the Hindu Succession (Amendment) Act, 2005):** This amendment brought a fundamental change. It provides that:
- A **daughter** of a coparcener shall have the same rights in the coparcenary property as she would have had if she had been a son — including the right of survivorship.
- When a Hindu coparcener dies **after September 9, 2005**, having an interest in coparcenary property, their interest shall devolve by **testamentary or intestate succession** under the Act (not by survivorship), if the deceased is survived by a female heir of Class I or a male heir claiming through such female heir.
The Mitakshara School
Survivorship is a concept of the **Mitakshara school** of Hindu law, which prevails across most of India. Under this school:
- Coparcenary consists of a male Hindu and his lineal male descendants up to four generations (now including daughters after 2005).
- Each coparcener has an **undivided interest** in the coparcenary property that fluctuates with births and deaths.
- On the death of a coparcener, their share is absorbed by the surviving coparceners — this is survivorship.
The **Dayabhaga school** (prevalent in Bengal and Assam) does not recognise survivorship. Under Dayabhaga, each coparcener has a defined share that can be alienated or bequeathed, and on death, it passes by succession.
When Does This Term Matter?
Death of a Coparcener
The question of survivorship versus succession arises whenever a coparcener in a Hindu joint family dies. The key issue is whether the deceased's share in the joint family property passes to the surviving coparceners by survivorship or to the legal heirs by succession. This determination depends on:
1. Whether the deceased left behind any **Class I female heir** (wife, daughter, mother, etc.).
2. Whether the death occurred **before or after** the 2005 amendment.
3. Whether the property was **coparcenary property** or the separate property of the deceased.
Landmark Cases
- **Vineeta Sharma v. Rakesh Sharma (2020):** The Supreme Court (three-judge bench) held that the rights of daughters as coparceners under the 2005 amendment are **by birth** and are not dependent on whether the father was alive on the date of the amendment. This significantly expanded the impact of the 2005 amendment on survivorship.
- **Prakash v. Phulavati (2016):** The Court initially held that the 2005 amendment applied prospectively, but this was effectively overruled by Vineeta Sharma.
- **Commissioner of Wealth Tax v. Chander Sen (1986):** The Supreme Court held that after the 1956 Act, when a coparcener dies leaving behind Class I female heirs, the property devolves by succession, not survivorship.
Property Disputes and Partition
Understanding survivorship is critical in family property disputes and partition suits. If survivorship applies, the surviving coparceners absorb the deceased's share, and the deceased's personal heirs (such as a widow or daughter, before the 2005 amendment) may have no claim. After the amendment, daughters have equal coparcenary rights, and the property of a deceased coparcener more commonly devolves by succession rather than survivorship.
Practical Significance
- **Post-2005 position:** After the 2005 amendment, survivorship operates only when the deceased coparcener has no Class I female heir. If a daughter or wife survives, the share devolves by succession, giving female heirs their statutory share.
- **Daughters as coparceners:** Daughters born before or after the amendment have coparcenary rights by birth, including the right of survivorship. They can also claim partition of the joint family property.
- **Will cannot override survivorship:** A coparcener can bequeath only their **separate property** by will, not their undivided interest in coparcenary property (unless the property is treated as devolving by succession under Section 6).
- **Tax implications:** The mode of devolution (survivorship vs succession) affects estate planning and tax calculations.
- **Partition severs survivorship:** Once a coparcener obtains a partition, their share becomes separate property and is no longer subject to survivorship.
Frequently Asked Questions
Does survivorship still apply after the 2005 amendment to the Hindu Succession Act?
Survivorship still exists as a concept, but its practical application has been significantly reduced. After the 2005 amendment, when a coparcener dies leaving behind any Class I female heir (including a daughter), the coparcener's share in the joint family property devolves by succession under the Hindu Succession Act, not by survivorship. Survivorship now applies only when there are no Class I female heirs surviving the deceased.
Can a coparcener write a will for their share in joint family property?
A coparcener can bequeath their undivided interest in coparcenary property by will only in cases where Section 6 of the Hindu Succession Act permits devolution by succession (i.e., when Class I female heirs survive). If the share would otherwise devolve by survivorship, the coparcener generally cannot bequeath it by will, as the right of survivorship takes priority.
What is the difference between survivorship and succession?
**Survivorship** means the share of a deceased coparcener automatically passes to the surviving coparceners by operation of law — it does not enter the deceased's estate. **Succession** means the share forms part of the deceased's estate and is distributed among the legal heirs according to the rules of inheritance under the Hindu Succession Act. The key difference is who receives the property: in survivorship, only surviving coparceners; in succession, all legal heirs including widows, daughters, and mothers.
Disclaimer: This glossary entry is for informational purposes only and does not constitute legal advice.
Related Legal Terms
Vested Interest
A vested interest is a present right to the future enjoyment of property that is not subject to any condition precedent, and which takes effect from the date the transfer is made, as defined under Section 19 of the Transfer of Property Act, 1882.
Testator
A testator is a person who makes a will, as defined under Section 2(h) of the Indian Succession Act, 1925, directing the distribution of their property after death.
Registration
Registration is the process of recording a document with the Sub-Registrar's office under the Registration Act, 1908, making it part of the public record and conferring it legal validity for the transfer of immovable property.
Remedy
A remedy is the legal means by which a court enforces a right, redresses a wrong, or compensates for a loss, including damages, injunctions, specific performance, and restitution.