In case of Vineeta Sharma vs. Rakesh Sharma
the Supreme Court finally
clarified the confusion created after the 2005 amendments in the Hindu
Succession act in cases of Prakash vs. Phulwati  and Danamma vs. Amar
and held that women have the right to inherit the ancestral by birth only like
their male counterparts, it held that:
It is apparent that unobstructed heritage takes place by birth, and the
obstructed heritage takes place after the death of the owner”
Here, it is significant to note that, the right, which is recognised under
Section 6, is the right by birth, and so, it is an unobstructed heritage. Hence,
it is not the obstructed heritage, depending upon the owner’s death. Therefore,
coparcener-father need not be alive on the 9th September 2005, which is date of
substitution of new Section 6, for the accrual of rights in favour of his son or
daughter coparceners. It is not necessary, either for the formation of a
coparcenary, or for becoming a coparcener that, a predecessor-coparcener should
be alive. Here, death of predecessor-coparcener is not relevant, but the birth
within degrees of coparcenary.
Apratibandha Daya (unobstructed heritage) property inherit from direct male
ancestor but not exceeding three degree who is higher than him. Under the
concept heritage is devolved by survivorship. The essential feature of
unobstructed heritage, according to Mitakshara Law is that the sons, grandsons
and great grandsons acquire an inherit in the property inherited by birth. Their
rights attach to it by their birth as in case of Radha v Ram it was held that
the property can be acquired by son and son’s son by the interest of birth. The
property is called unobstructed because the accrual of the right to it is not
obstructed by the existence of the owner.
Thus, if A inherits property from his father or grandfather or great
grandfather it is ancestral property or unobstructed heritage in the hands of A
as regards the male issue because the existence of A an obstruction to his son
acquiring an interest but as regards other relations he hold it as his absolute
property. If A has not male issue, other relation has no interest in the
property during the life-time of A.
Sapratibandha Daya (Obstructed Heritage) property inherited from any other
relations i.e. paternal uncle or brother, nephew etc., under this its devolved
by inheritance. It is called obstructed because the accrual of the rights to it
is obstructed by the existence of the owner. The owner holds it as his separate
and absolute property. The relations of the owner do not take a vested interest
in it by birth. They are entitled to it only on the death of the owner. Thus the
property which devolves on parents, brothers, uncles, nephews, etc. on the death
of the last owner is obstructed heritage.
Obstructed heritage devolves by succession except in the following cases in
which it passes by survivorship.
- Two or more sons, grandsons and great grandsons succeeding as heirs to
the separate property of their paternal ancestor take as joint tenants with
rights or survivorship.
- Two or more grandsons by a daughter who are living as members of a joint
family succeeding as heirs to their maternal grandfather take as joint
tenants with rights of survivorship.
- Two or more widows succeeding as heirs to their husband take as joint
tenants with survivorship rights.
- Two or more daughters succeeding as heirs to their father take as joint,
tenants. But in the Bombay State, they take absolute estate in severalty.
The Mitakshara Law recognizes the distinction between obstructed and
unobstructed heritage, but under Dayabhaga Law. Every kind of heritage is
obstructed and it does not recognize any such distinction because according to
Bengal School no person at all acquires any interest by birth in the property of
another and the rule of survivorship does not apply to this school.
- Prakash & Ors. V. Phulavati & Ors., (2016) 1 Supreme Court Cases (Civ)
- Danamma vs. Amar, Civil appeal nos. 188-189 of 2018
- Radha v Ram, AIR 1985 Pat. 285