MZUMBE UNIVERSITY

FACULTY OF LAW
COURSE: LLB 2
SUBJECT: LAND LAW 11
SUBJECT CODE: LAW 221
NATURE OF TASK: GROUP ASSIGNMENT
NAME OF LECTURER: MR E. PROSPER
GROUP NO. 1
STREAM C
S/N NAMES OF PARTICIPANTS REG. NUMBER
1. LILIAN ZUBERI 13327009/T.21
2. LIDYA MAJID 1236122/T.21
3. JACOB TEMU 1236128/T.21
4. GERVAS MASSAKA 1236190/T.21
5. AMAN MRAMBA 1236137/T.21
6. ELIAS ZACHARIA 1236181/T.21
7. INNOCENT KAMBANYUMA 2631036/T.21

QUESTION
The doctrine of survivorship in land law ended disputes amongst the relatives of the deceased
when the husband passes away. With vivid example substantiate the above statement
 WORK OUTLINE
1.0 INTRODUCTION
1.1 The concept of the doctrine of survivorship
2.0 THE APPLICATION OF THE DOCTRINE OF SURVIVORSHIP
3.0 WAYS UNDER THE DOCTRINE OF SURVIVORSHIP THAT ENDED DISPUTE IN
LAND LAW
4.0 THE ROLES PLAYED BY THE DOCTRINE OF SURVIVORSHIP IN LAND TO
END DISPUTE AMONG THE RELATIVE OF THE DECEASED HUSBAND
5.0 CONCLUSION
6.0 REFERENCE
1.0 INTRODUCTION
The question needs us to discuss on the doctrine of survivorship and to show how the doctrine
has been able to end disputes in land among the relatives of the deceased when the husband
passes away. In attempting the question we are on the side that the doctrine of survivorship has
yes been able to solve land dispute among the relative when the husband passes away in
justifying our discussion we show the applicability of the doctrine of survivorshipwith a number
of decisions which applied the doctrine hence make the doctrine in practical, and we showed the
weakness and the strength of the doctrine to its applicability. Also, in attempting our very
question we showed the manners of determining survivors by providing ways through which
survivors can be determined under land Act.Again further we explained how far has the doctrine
of survivorship solved or have been able to solve land dispute between the members of the
family when the husband passes away but there is a gap or we can term it as the challenge to this
doctrine as in the circumstances where the death of joint occupiers is simultaneous and uncertain
as to survived others,. This work divided into six parts first is this introduction which bare the
demand of question and the meaning of the key term in the question, second part is the part
which explain the applicability of the doctrine of survivorship strength and weakness of the
doctrine of survivorship third part is that explains the manner (ways) of determining survivors
under land laws, and fourth part explain how far has the doctrine solved the problems or land
dispute, The fifth part is the one which shows challenges that the doctrine is facing in ending
land dispute and lastly is the part which bare the conclusion and recommendations regarding the
doctrine of survivorship.
1.1 The Concept of the doctrine of survivorship
The doctrine of the right of survivorship, on one hand, seeks to explain the legal
position of the rights of a surviving joint occupier at the death of another joint
occupier. The doctrine provides that when a joint occupier dies, all the interests in the
property pass to the surviving joint occupier. If there are more than one surviving
occupier, the right of survivorship continues until there is but one survivor who then
holds the property as a sole owner. The jus accrescendi takes precedence over any
disposition including a disposition made by a joint occupier through a will. This
principle applies even if a joint occupier dies intestate. It is from this that we come to
a general conclusion that a joint occupier holds nothing and yet he holds the whole.
 The law in Tanzania states very clearly that, “If one or two or more joint owners of an
estate or interest dies, his name shall be deleted from the land register on the
application of any interested person, accompanied by proof of death under section 69
of Land Registration Act1 also under section 159 of The Land Act2, in particular,
provides that, where the land is occupied jointly under the right of occupancy or lease
no occupier is entitled to any separate share in the land, and that on death of a joint
occupier, his interest shall vest in the surviving occupier or occupiers jointly
This is the distinguishing feature of a joint occupancy that on the death of one joint
occupier his interest in the land passes to the other surviving joint occupiers. Jus
accrescendi takes precedence over any disposition made by a joint occupier example
will. Also the same principle applies where the joint occupier dies intestate such as
joint occupancy cannot pass under will or intestacy and his interest in thereby
extinguished The doctrine of survivorship dictates that when two or more persons are
seized on a joint estate the entire tenancy upon the decease of any of them remains to
the survivors and at length to the last survivor and he shall be entitled to the whole
estate3.
When property is held with right of survivorship and an owner dies, the property
passes to surviving owner, although this transfer happens automatically as a matter of
law and surviving owner may wish to remove the deceased owner from title to the
property4. A right of survivorship requires human owners (natural person) because
only humans have life span that can trigger the right of survivorship. You cannot hold
title with right of survivorship if the other owners are not a human5.
Joint tenancy with right of survivorship is common between married couples. The
right of survivorship implies that upon the death of one owner his shares is transferred
automatically to the surviving owner and normally the right of survivorship take
precedence over the deceased will or inheritance rules. This doctrine has been

1
[CAP 334 R:E 2019]
2
[CAP 113 R:E 2019]
3
GOO. S. H. (2002). Book on land law, 3rd Ed. London: Cavendish Publishing ltd. Pg 611
4
Kenneth, G. (2000). “New Title”,Calfornia Adopts community property with right of survivorship. Losangles daily
journal.
5
Ratner, J.R (1999). “Community property, Right of survivorship and separate property contribution to marital
asset: An imerplayArizonal Law review.
 incorporated under Tanzania Land Acts. It is provided under Section 159 (4) (b) 6,
where the law provides that; on the death of a joint occupier his interest shall vest in
the surviving occupier or occupiers jointly. If last survivor dies the properties is goes
to his heirs and he has right to transfer property through will by virtual of Section 69 7
the survivor needs to be registered
2.0 THE APPLICABILITY OF THE DOCTRINE OF SURVIVORSHIP
The doctrine of survivorship being completely applicable throughout the allotment,
ascertainment and actual distribution processes in cases of a female heir being left behind
was re-iterated in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum 8,
wherein the relative in question was a widow. The court stated that the “partition has to be
completely treated and accepted as factually concrete reality” (even though the process of
partition may involve a certain degree of assumption: the deceased asking for partition
immediately before his death)
In Tanzania this doctrine is being applied in various court decision where as the doctrine has
been able to settle various disputes as below are some of the court decision which shows the
application of the doctrine
The case of Godlisten Mshangia v Mariam Mshangia and others 9 This Appeal originates
from the decision of Kiruwa Vunjo Kusini Ward Tribunal in Land Application No. 7 of
2018. The records is such that the late Jackson David Mashingia had two wives namely the
late Edna Jackson Mashingia and Mariam Jackson (1st Respondent). The appellant is the son
of the late Jackson and the late Edna while the 2nd and 3rd respondents are children of the
late Jackson Mashingia and Maria Jackson (1st respondent). Both claimed to be the legal
owners of the suit land which is located at Mandangeni in Uparo village. The Appellant
claiming the same to form part and parcel of the estate of his late mother (Edna Jackson)
while the Respondents claim to have been given the said land by the late Jackson Mashingia
through the document which they termed as a "will”. The Appellant unsuccessful instituted
the application in the Ward Tribunal and also unsuccessfully appealed to the District Land
and Housing Tribunal hence this Appeal where as it was sufficiently proved that the first

6
[ Cap 113 R: E 2019]
7
[Cap 334 R: E 2019]
8
[AIR 1978 SC 1239]
9
MISCELLANEOUS LAND APPEAL NO. 1 OF 2021
 respondent had a right of ownership as far as the suit land is concernedbecause the first
Respondent had used the suit land since 1977 together with her mother in law (one
Maria/Maole) and after her mother in-law's death she continued to use it with her husband.
Life continued the same way even after his death in 2014 For that the suit land automatically
passed to Edina under the right of survivorship
The case of Mazigo Biseko v Wegoro Timbira10 The appellant and the respondents are in
dispute of ownership of land located at Karukekere in Namhula within Bunda District in
Mara Region. The size of the disputed land is estimated to be 32 acres.Whereas the
respondent claimed the land in dispute to be owned by his deceased father one Matai Matete,
the appellant claimed that the said land is his as granted to him by the "Mwanangwa", a local
leader whose name was wamulanga and only left that land during operation Vijiji. In his
return, he found his land invaded.The respondent on the other hand, testified that his father
acquired the said land in 1987 and has been using it during all his life time until his demise in
1990. That following the death of his father, he was appointed as administrator of his father's
estate and he has been living and using that land with his siblings peacefully. The deceased is
survived by his wife and his children. That this dispute arose in 2013 when he first received
summons and eventually the said decision was nullified by the higher tribunal/court.at this
appeal the court quoted the case of Jackson Nyasari vs Nyama Sagare Nyasari11 which was
ruled that where one spouse dies, the entire estate remains in the hands of his wife as both
parties has equal rights in that estate. He added that the essence of filing a probate cannot
arise until both spouses had died. The only exception provided is to the position where there
is a will which is being disputed or where there is more than one surviving wives of the
deceased in Islamic and customary laws disputing on the administration of the estate.
Again in the case of Mahmoud Shambe v Zuhurashambe 12 This is an appeal filed by the
appellant MAHMOUD G. SHAMBE (the administrator of the estate of the Deceased
GULLAM MOHAMED SHAMBE) against the decision of the Resident Magistrate Court of
Iringa in Civil Case No. 15 of 2011 which was pronounced in favour of the respondent
ZUHURA SHAMBE.In- that civil case, - the respondent sued the appellant claiming for a
declaratory order that since the late Gullam Mohamed Shambe, who was the lawful husband

10
LAND APPEAL NO 08 OF 2022
11
Probate Appeal No 6 of 2007
12
CIVIL APPEAL NO. 8 OF 2013
 of the respondent died without bequeathing his share in the house on Plot No. 225 Block '1
B’ Wilolesi area to any other person, the property in the house devolved upon the respondent
as joint owner and wife. She also claimed for an order compelling the appellant as an
administrator of the estate of the late Gullam Mohamed Shambe to transfer the said property
in the house into the sole proprietorship of the respondent. She also asked for the costs of the
suitThe trial court also found that where the property jointly owned between the husband and
wife, upon death of one spouse, the property devolves on the surviving spouse. Therefore it
concluded that, upon the death of the late Gullam Mohamed Shambe the respondent as his
wife is entitled to the devolution of property jointly acquired and owned. The trial court
ordered the devolution of the remaining share of the late Gullam Mohamed Shambe to full
and sole ownership of the respondent who is the surviving joint owner of the share in that
suit house.
3.0 WAYS UNDER THE DOCTRINE OF SURVIVORSHIP THAT ENDED DISPUTE IN
LAND LAW
The following are the ways in which lead relatives to end their dispute in Land law since
husband dead as to take over the property left by the deceased as follows.
will or intestacy. This is a document which express who will take which amount of wealth a
certain person will own according to the wishes of the deceased person but as land law is
concerned this may lay to the will that express which property to whom will go or who will
take possession of it. In other hand where the deceased died intestacy this is where person
died without left express will that on how his or property will be distributed but under
execution the the administrator of estate is the one who is responsible to distribute those
property according to classes that as under family law that they start sons of the senior or fish
house or first wife, follows by sons of step wife and thereafter daughters. The case that
provide as ended dispute under will is the case of Bahirirwe v Tukkre and 2 others13. In
this case the Applicant and respondent were children of the deceased ntekuye and there were
another children third one called kahube who died and left his sister and brother as applicant
and respondent that deceased left will for his children to inherite property where by each
owned property between the two survive heir but later respondent sold his portion of land to
the other two respondents and left the place by that time and one of his respondent son who

13
Land Civil Suit No. 32 of 2018 [2022] UGHCLD 38 (Unreported).
 trespassed over the land of the applicant and also was prosecuted for the criminal offence but
later on respondent returned to his relatives and occupied land belongs to the applicant and
the applicant sent the matter to the court want the two respondents to leave the portion the
respondent brother to refund their money inorder to leave the place as also respondent
brother to occupy the sold portion and he refused to return that portion and the court ordered
respondent to refund the other two respondents so as brother to turn into his portion acquired
under will of their father.
Taking control by remain partner. The other way of ending up dispute between relatives is
by a way of those property left by the deceased husband is to be control by partner as the
administrator of the estate or executor of the estate of which is the remaining parent of their
children who will look over those property which will help to get service for their children as
they are in need of any service and those properties will be used to serve them or their
income through that property or those properties left by the deceased husband.
Through application of executor or administrator of estate . Any person relatives there from
by the leave of the court may apply for to be an administrator of the estate of the deceased
husband where by some circumstances see that the remaining partner to whom property or
properties left under her control and as per his or her perseption will lead to the injustice or
will lead to the detriment of the beneficiaries this was also discussed in the case of Public
Trust v M14. The court granted execution to the applicant because itself satisfied the
deceased had structured his affairs inorder to avoid fulfilling his moral duty to provide for the
minor children of a former relationship.
By recognition. Where husband or a father of the children die may happen a conflict or
disruption between other relatives of the deceased in time of owning or executing those
properties left by the deceased and only recognized childrens are entitled to inherite but also
under Moslem law is said even if a child who is not recognized as lawful child can inherite a
little bit amount of deceased estate as this position held in the case of Waziri Maneno
Choka v Abasi Choka15. The appellant is a deceased son whom acquired by the deceased
and one Salma Mbaraka on his contention that his father deceased left will that instruct him
as administrator of estate and heir of the same estate but deceased elder brother Abasi as
respondent objected about the appellant as administrator and heir of the deceased estate since
14
[2005] 2 NZLR 696 (CA)
15
Civil Appeal 51 of 1999[2006] TZCA 19.
 the marriage is not recognized as Salma Mbaraka and the deceased while the deceased did
not married Salma Mbaraka however on evidence mother of the appellant testified that they
lived about years with the deceased and they had appellant as their issue but respondent
denied the same and stated that they do not recognize him as son of the deceased as there was
no lawful marriage and he is not entitled of any share when the matter sent to primary court
of bagamoyo the court made decision in favour of the appellant but the respondent appealed
in district court and the district court held that where a testator made will to the child who is
stranger should not exceed one third of the testator's estate after refering to Gupta and
Sarkar on Muslim law. As the appellant was dissatisfied with the decision of the district
court appealed to the high court and also high court referred also to Mohamedan law on
Muslim law which provides the same as what referred by the district court that under
Mohamedan law that even the child is not lawful recognized but under Muslim law as
appellant is son of parents that is deceased and mother's respondent is legitimate child
however in issue of inheritance as has no effect on legitimating the child but as he is not
lawful recognized he is entitled to one third of the deceased estate appellant was also
dissatisfied and appealed to the court of appeal and the court of appeal stated that there is no
reasons to fault the decision of high court.

4.0 THE ROLES PLAYED BY THE DOCTRINE OF SURVIVORSHIP IN LAND TO

END DISPUTE AMONG THE RELATIVE OF THE DECEASED HUSBAND
Since the doctrine of survivorship has been acting actively in the society and this proves by the
application in different cases as explained above then it is clearly seen that there are greater roles
played by the doctrine of survivorship in ending the dispute in land law between the members of
the families of the deceased person. The following are the two major roles played by the doctrine
in ending dispute among the relatives of the deceased husband,
The doctrine of survivorship help to prevent disputes amongst relatives of a deceased
husband by providing a clear and automatic process for the transfer of ownership: The
doctrine provide that under section 159(4)b of the land Act16it provide that on the death of the
joint occupier his interest shall vest in the surviving occupier so that In the context of land law,
the doctrine of survivorship can be particularly useful in preventing disputes amongst relatives of

16
[CAP113 R.E 2019].
a deceased husband. For example, if a husband and wife owned a property together as joint
tenants, and the husband passed away, his share in the property would automatically pass to the
wife. The legal position is from the case of Ramadhani Kaija Baga vs Sajidat Ramadhani
Rukubanya17. Respondent complained that the appellant had trespassed into clan land and
further stated her husband the land Ramadhani Rukubanya died testate in 1977 and left her. He
bequeathed the land in dispute to her and her children through a will. When they went to see
dispute land, they found the present appellant cultivating the same and introduce to them as
owner of shamba sold to him by deceased. The court held that; the surviving spouse has right of
survivorship in matrimonial properties which spouses jointly occupied. Legally when land is
jointly owned on the death of one joint tenant the entire tenancy goes to survivor. This is because
on jointly occupied property the deceased’s interest ceases with his or her death The doctrine of
the right of survivorship or jus accrescendi18, proves the simplicity of joint occupancy as it
explains the legal position of the surviving joint occupier at the death of another joint occupier 19.
Even if the joint occupier dies interstate, or made a disposition through a will, the doctrine shall
prevail as it states for the death of one or two joint occupiers his name shall be deleted in the land
register on the application of any interested person with the proof of death20.
The doctrine eliminates the need for the joint tenants to negotiate the sale or transfer of
ownership of the property the doctrine of survivorship prevent the conflict among family
member after the death of the occupier because it eliminates the sale or transfer of ownership of
property of land and this supported by section 159(4)(c) of the land Act.21 Provide that a joint
occupier may transfer his interest inter vivo to all other occupiers but to no other person and any
attempt to transfer his interest to any other person shall be void. So that due to this property
ownership passes automatically to the surviving co-owner or surviving spouse.
5.0 CONCLUSION
The issue of joint occupancy in Tanzania is being determined and recognized by the Land
Act22. Though it is well practiced especially in towns and cities where there is a rapid

17
Miscellaneous land case Appeal No. 36 of 2016 Hight Court of Tanzania at Bukoba.(unreported)
18
Jus accrescendi, in Roman law, is the right of survivorship, the right of the survivor or survivors of two or more
joint tenants to the tenancy or estate, upon the death of one or more of the joint tenants.
19
Ibid
20
[CAP 334 R.E 2019]
21
[CAP 113 R:E 2019]
22
[CAP 113 R:E 2019]
 population and growth of business and trades, it is not quite simple, fair and just to the joint
occupiers who are involved in that system of ownership and land interests.
This is due to its core elements like the doctrine of survivorship which are likely to be
pronounced unjust as opposing to the exclusive right of owning property and the right of
succession and inheritance of the estates by the lawful heirs such as children and wives since
the doctrine literally means that ‘each joint occupier holds nothing and yet holds the whole’.
Also the joint occupancy system is likely to cause hostility and scheming unexpected deaths
and loss of life of the joint occupier (s) where the jointly occupied land (estate) is of sound
wealth that make him (the joint occupier) to presume the wealthier state he will be if the
other joint occupier (s) will be dying as the result it influence the commission of crimes and
violations of human rights such as right to life

6.0 REFERENCE
STATUTES
Land Act [Cap 113 R.E. 2019]
Land Registration Act [Cap 334 R.E. 2019]
CASES
Ramadhani Kaija Baga vs Sajidat Ramadhani Kukubanya, miscellaneous land case Appeal No.
36 of 2016, High Court of Tanzania at Bukoba (Unreported)
Waziri Maneno Choka v Abasi Choka Civil Appeal 51 of 1999[2006] TZCA 19.
Public Trust v M[2005] 2 NZLR 696 (CA)
Bahirirwe v Tukkre and 2 others Land Civil Suit No. 32 of 2018 [2022] UGHCLD 38
(Unreported).
Mahmoud Shambe v Zuhurashambe CIVIL APPEAL NO. 8 OF 2013
Jackson Nyasari vs Nyama Sagare Nyasari Probate Appeal No 6 of 2007
Mazigo Biseko v Wegoro Timbira LAND APPEAL NO 08 OF 2022
Godlisten Mshangia v Mariam Mshangia and others MISCELLANEOUS LAND APPEAL NO.
1 OF 2021
Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [AIR 1978 SC 1239]
BOOKS
Goo, S. H. (2002). Book on Land Law, 3rd ed. London: Cavendish Publishing LTD.
Dixon, M. (2002). Principle of Land Law, 4th ed. London: Cavendish Publishing LTD.
JOURNALS
Kenneth, G. (2002). “New Title”, Calfornia Adopts Community Property with right of
Survivorship, Losengles daily journal.
Ratner, J. R. (1999). “Community Property”, Right of survivorship and Separate Property
Contribution to Matital Asset: An Imply Arizonal Law Review.