Rule of survivorship in Hindu Law | Hindu succession act 1956 notes

Introduction

Before the commencement of Hindu Succession (Amendment) Act, 2005, two kinds of devolution were recognised under the Mitakshara Law, which are as follows -

By succession.

By survivorship.

What is "Rule of Survivorship"?

Rule of survivorship was, before 2005 Amendment, embodied in Section 6 of Hindu Succession Act. Unamended Section 6 of Hindu Succession Act provided that, on the death of a male Hindu governed by Mitakshara law after the commencement of this Act, his interest in coparcenary property shall devolve by survivorship. It means that on the death of the Mitakshara coparcener, his interest shall devolve not on his successors but upon the surviving coparceners.

Proviso to this section further laid down that where a coparcener dies leaving behind a female heir of Class-I or male heir claiming through such female heir, the interest will devolve by rule of succession and not survivorship.

However, the Hindu Succession (Amendment) Act, 2005 substituted old Section 6 and present Section 6 has abolished the rule of survivorship and now Section 6(3) of Hindu Succession Act provides that after the commencement of this Amending Act, the interest of a Hindu shall devolve by testamentary or intestate succession and the property shall be deemed to have been divided as if partition has taken place and—

(i) The daughter is allotted the same share as allotted to the son;

(ii) The share of pre-deceased (son or daughter) shall be allotted to his or his surviving child;

If such child is dead, then his share shall be allotted to the child of such pre-deceased child of predeceased son or predeceased daughter.

For example, if there were three brothers and one of them died without a son, his interest, under the old Hindu law, will devolve by rule of survivorship upon to his brothers and not his daughter or daughter's son. However, after the Amendment of 2005, the interest of deceased will devolve upon his daughter or son of pre-deceased daughter, as the case may be by virtue of Section 6(3) of Hindu Succession Act.