Doctrine of Survivorship: Special reference to Muslims and Christians

Introduction

Imagine a scenario wherein there is a joint family consisting of male descendants and female descendants. Upon the death of the last male holder, the share in the undivided property gets distributed amongst the remaining male survivors but the female descendants do not get anything. Is this an equitable law? Certainly not, this is the concept of survivorship.

The concept of survivorship is the root of patriarchal society. This archaic law meant that only sons and grandsons could inherit ancestral property, leaving daughters and granddaughters with nothing. But how did this archaic law impact different religions? While it was an essential principle of Hindu law, did it hold sway over Muslim and Christian families as well?

Coparcenary property

• Under Hindu law, there is a concept of coparcenary property which is applicable upon ancestral Joint Hindu Family Property.
• Coparcenary property is a unique concept in Hindu law. It refers to property jointly owned by family members who share a common ancestor.
• As per the traditional Hindu law, the concept of coparcenary is conferred upon male either from birth or adoption.
• Coparcenary can be traced up to four lineal male descendants.  Prior to the 2005 amendment in Hindu Succession Act (hereinafter referred as HSA), only male could become coparceners.
• Post 2005, females are also conferred with the right of becoming coparcener from the date of their birth.

Undivided Coparcenary Interest

• Unlike ordinary joint ownership, where each owner has a defined share, in a coparcenary, everyone’s interest is undivided. This means that no individual member can claim a specific portion of the property as their own.
• The ownership in a coparcenary is by birthright. Every male member born into the family automatically becomes a coparcener and acquires a share in the ancestral property. (Post 2005 Hindu Succession (Amendment) Act, daughters can also become coparceners.)
• However, this share is not fixed or divided; it fluctuates with the birth of new members, deaths, or adoptions within the family.
• Only when the family decides to partition the property can the exact share of each member be determined. Until then, the ownership remains undivided and shared by all coparceners.

Doctrine of Survivorship

• As per Hindu personal laws and the Hindu Succession Act of 1956, when a member of a coparcenary dies, their interest in the coparcenary property is left behind.
• The surviving coparceners will continue to be joint owners of the property, and their coparcenary status will persist among them concerning the property. This is called the doctrine of survivorship. 

Section 6 of the Hindu Succession Act, 1956

This section deals with the devolution of a male Hindu’s interest in coparcenary property upon his death.

General Rule of Survivorship

When a male Hindu dies, his undivided interest in the coparcenary property typically passes to the remaining male coparceners by survivorship. This means the property is not divided or inherited by heirs but remains with the surviving coparceners.

Proviso to Section 6

• There is an important exception to this rule made by the Amendment to the HSA, 1956. If the deceased male Hindu has left behind a Class I female relative (like a daughter, widow, or mother) or a male relative who claims through such a female (like a grandson through a predeceased daughter), the principle of survivorship does not apply.
• In such cases, the deceased’s interest in the coparcenary property will devolve according to testamentary succession (as per the deceased’s will) or intestate succession (as per the legal order of inheritance if there is no will).

Practical Examples:

Scenario 1: Applying the General Rule of Survivorship

Imagine a Hindu joint family where there are three male coparceners: a father (Nitin) and his two sons (Mohit and Manoj). They own a coparcenary property together.

• Event: Nitin dies.
• Outcome pre 1956 amendment: Since Nitin’s interest in the coparcenary property is undivided and he does not have any Class I female relatives, his interest in the property will devolve upon the surviving male coparceners (Mohit and Manoj) by survivorship. Mohit and Manoj will continue to hold the property jointly as coparceners.
• Outcome post 1956 amendment: The interest in property will devolve upon Mohit and Manoj, just like the case in pre 1956 amendment.

Scenario 2: Applying the Proviso to Section 6

Now, consider the same family but with the following addition: Nitin has a daughter (Sunita) and a widow (Lalita).

• Event: Nitin dies.
• Outcome pre 1956 amendment: In this scenario, both the sons will be entitled to share in the property but neither the widow, nor the daughter will get any interest in the property.
• Outcome post 1956 amendment: Here, the situation changes because Nitin has Class I female relatives (Sunita and Lalita). According to the proviso to Section 6, the principle of survivorship will not apply. Instead, Nitin’s interest in the coparcenary property will be divided among his legal heirs as per the rules of intestate succession. Therefore, Sunita, Lalita, Mohit, and Manoj will all get a share of Ramesh’s interest in the coparcenary property. The property will no longer remain undivided among the male coparceners alone.

Scenario 2 accurately depicts the fallacy in the concept of survivorship and hence, the same was amended in 1956.

Concept of Survivorship under Muslim law

• Under Muslim Law, a son or any possible heir does not acquire any interest in the property of a person by mere birth (no concept of survivorship).[1]
• The Court in Abdul Raheem vs. Land Acquisition Officer[2] clarified that the concept of joint family property, common in Hindu law, does not exist under Muslim law. This means that when a Muslim individual owns land, their rights to that land are personal and distinct, unlike the shared ownership found in Hindu joint families.
• Consequently, upon the death of a Muslim land owner, their interest in the property is extinguished, and it passes on to their legal heirs according to the rules of Islamic inheritance.
• The right of an heir presumptive comes into existence only upon the death of propositus. It is noteworthy that such an heir is ‘mere spes successionis’, which means that transfer of property on the mere expectancy of an heir succeeding is not deemed as valid transfer.
• When a Muslim person dies without leaving a will (intestate), their property is distributed according to the rules outlined in the Muslim Personal Law (Shariat) Application Act, 1937.
• However, if the deceased has created a will before their death (testate), the distribution of their assets is determined by specific Muslim Shariat laws applicable to either Shia or Sunni Muslims, depending on their religious sect.
• If a non-Muslim converts and dies as a Muslim, his property will be devolved as per the applicable school of Muslim law to which he had converted.
• In the landmark case of Controller of Estate Duty Mysore, Bangalore v. Haji Abdul Sattar Sait and Ors[3], the court ruled that a person who converts to Islam, not only changes his religion but also his personal laws. However, this rule is applicable on individual conversions.
• Furthermore, the court observed that if a whole cast or community converts, then such a community will retain part of their original personal law. Such rights include inheritance, succession, birth-right of son, and also devolution of property by way of survivorship.

Concept of Survivorship under Christian law

• The concept of Indian Succession Act, 1925 is applicable upon Christians with regards to testamentary and intestate succession in India.
• The concept of doctrine of survivorship is not applicable per se. However, in the case of conversion, such a concept finds its place.
• Prior to the enactment of Indian Succession Act, in a landmark case of Abraham v. Abraham[4], Abraham’s ancestors were Hindus. M.Abraham had renounced its religion and had converted to Christianity. He subsequently married a Christian woman.
• Upon his death, his wife filed a suit for recovery of property. F. Abraham, brother of the deceased, contended that despite converting to Christianity, the family continued to follow Hindu inheritance laws.
• The claimant asserted that since their ancestors were Hindus, they were entitled to the entire property based on the Hindu law of survivorship, which would typically apply to joint Hindu family property.
• The Privy Council in this case made following observations:

Firstly, the court declared that such a conversion severs all ties with the Hindu family.

Secondly, it provided individuals with the freedom to either continue following Hindu law or adopt a new legal framework.

Thirdly, the court emphasized that the choice of law would be determined by the convert’s actions and lifestyle after conversion.

• The contention of F. Abraham was rejected and the concept of doctrine of survivorship was rejected.The Indian Succession Act of 1865 was enacted to govern inheritance for 
• British Christians, including Indian converts from Hinduism. While exempting Hindus and Muslims, the Act clarified that Christians of Indian origin cannot follow Hindu succession laws after conversion. However, rights acquired under Hindu law before conversion remain protected.
• In Kulada Prasad Pandey v. Haripada Chatterjee[5], The Calcutta High Court ruled that if a single member of a Hindu joint family converts to Christianity, the entire joint family structure dissolves.
• However, if all members convert, the coparcenary rights can potentially be preserved, allowing them to continue managing their property under Hindu law principles.

Thus, it can be inferred that in both Muslims and Christians wherein the entire community or sect converts, in such a case, the doctrine of survivorship will be made applicable. But, in cases of individual conversion, the doctrine has no relevance.

Abolition of survivorship

The doctrine of survivorship, once of Hindu law, has undergone a significant transformation. Initially favoring male heirs to the exclusion of women, it has been progressively diluted and ultimately abolished. The doctrine was abolished pursuant to Hindu Succession (Amendment) Act, 2005.

The amendment conferred coparcenary rights to daughters as well and they acquired a birth-right in the property; hence there was no need for doctrine of survivorship, since the daughters rights were safeguarded by the amendment.

This evolution reflects a broader shift towards gender equality and a recognition of the rights of all family members in ancestral property. While the journey towards complete parity is ongoing, the abolition of survivorship marks a crucial step forward in ensuring fairness and justice in property inheritance.

Conclusion

The doctrine of survivorship, historically favoring male heirs under Hindu law, has been abolished through the Hindu Succession (Amendment) Act, 2005, granting daughters equal coparcenary rights and promoting gender equality. In contrast, this doctrine does not apply to Muslims and Christians.

The concept of survivorship is not applicable upon Muslims and Christians, however in certain cases, the courts have granted the concept of survivorship to Muslims and Christians prior to 2005.

The exception was carved out basically for the converts who had renounced their religion, but their ancestors were followers of Hinduism. However, the entire concept of doctrine of survivorship has been struck down by the Hindu Succession (Amendment) Act, 2005 and is no more applicable upon any religion.

[1] B.M. Gandhi, Family Law Vol 2, (Second edition, EBC 2019).

[2] AIR 1989 AP 318.

[3] (1972) 2 SCC 350.

[4] 1863 (9) MIA 195.

[5] ILR (40) Cal. 407 (1912).