File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

The Concept Of Apratibandha Daya And Sapratibandha Daya In Hindu Law

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 [1] and Danamma vs. Amar[2] case 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:

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[3] 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.

Apratibandha Dara:

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.
  1. 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.
  2. 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.
  3. Two or more widows succeeding as heirs to their husband take as joint tenants with survivorship rights.
  4. 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.

End-Notes:
  1. Prakash & Ors. V. Phulavati & Ors., (2016) 1 Supreme Court Cases (Civ) 549
  2. Danamma vs. Amar, Civil appeal nos. 188-189 of 2018
  3. Radha v Ram, AIR 1985 Pat. 285

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly