According to the principles of Hindu Law, there is
coparcenership between the different members of a united family and
survivorship following upon it. But this right of survivorship is
lost if the marriage of the coparcener is solemnized under the
Special Marriage Act of 1872.
There is community of interest and unity of possession between
all the members and upon death of any one of them, the others take
by survivorship that in which they had during the deceased's
lifetime a common possession. [Katama Nachiar v Raja of Shivaganga
(1863) 9 MIA 539, 611; Subramanya Pandian v. Sivasubramania Pillai
(1894) 17 Mad 316, 328]
The right of survivorship rests upon the text of Narada and is
recognised in the Mitakshara. [Subramanya Pandian v. Sivasubramania
Pillai (1894) 17 Mad 316, 330.
The Arthasastra of Kautilya clearly lays down the rule of
survivorship. "If a man has no male issue, his own brothers or
person who have been living with him shall take possession of his
property; and in their absence, his daughters shall have his
property".
Narada says: "If among several brothers, one childless should
die or become a religious ascetic, the other shall divide his
property, excepting the stridhana". In other words, survivorship
consists in the exclusion of the widows and other heirs of the
coparcener from succeeding to his undivided interest in the
coparcenary property. Even a disqualified person is a member of the
coparcenary and even though he has no rights at a family partition,
he is entitled, when he becomes the last surviving male member of
the joint family, to take and enjoy the whole estate by
survivorship. [Muthuswami Gurukkal v. Meenammal (1919) 43 Mad.
664.]
The rule of survivorship is precluded when there is attachment
of the undivided share of coparcenary for his personal debt and is
sold in execution even if the coparcener dies subsequently when the
attachment subsists on the date of death. [Bharamappa v. Rudrappa
AIR 1955 MYs. 13 : ILR (1954) Mys 361]
