H.

P NATIONAL LAW UNIVERSITY,

SHIMLA

FAMILY LAW-II ASSIGNMENT

Submitted To
DR. ALOK KUMAR

AND MRS. SARITA KLAIR

Submitted By
KUNAL MEHTO

Roll no. – 16

BA.LLB. (HONS.) –VI SEMESTER

ABSTRACT
This Assignment deals with concept of Obstructed and Unobstructed heritage. Obstructed heritage is
Property inherited by a Hindu from a person other than his father, grandfather or great
grandfather is obstructed heritage. It is called obstructed because the accrual of the rights to it is
obstructed by the existence of the owner. Whereas Unobstructed heritage is the sons, grandsons
and great grandsons acquire an inherit in the property inherited by birth. Their rights attach to it
by their birth. The property is called unobstructed because the accrual of the right to it is not
obstructed by the existence of the owner. Later this assignment talks about difference in
Mitakshara Law and Dayabhaga Law in distinction between obstructed and unobstructed
Heritage.

STATEMENT OF PROBLEM-
Main problem which has been dealt here is to analyse these two concept of Obstructed and
Unobstructed property and difference in Mitakshara Law and Dayabhaga Law in distinction
between obstructed and unobstructed Heritage.

RESEARCH METHODOLOGY
Based wholly on doctrinal research this assignment covers various heads under it. it talks about
the Hindu joint family and obstructed and unobstructed property. Primary sources such as
statutes and legislations are used. Assignment includes secondary research too. Books and
commentaries are used with references provided there in the syllabi itself. Websites, dictionaries
and articles have also been referred to gather more knowledge on the perspectives of the title and
providing a superstructure to make the assignment structural and organised.
INTRODUCTION

A Hindu joint family consists of the common ancestor and all his lineal male descendants upto
any generation together with the wife or wives (or widows) and unmarried daughters of the
common ancestor and of the lineal male descendants. The existence of the common ancestor is
necessary for bringing a joint family into existence, for its continuance common ancestor is not a
necessity.
According to Sir Dinshah Mulla, “ A joint Hindu family consists of all persons lineally
descended from a common ancestor, and includes their wives and unmarried daughters. A
daughter ceases to be a member of her father's family on marriage, and becomes a member of her
husband's family1.
The property of a joint family does not cease to be joint family property belonging to any such
family merely because the family is represented by a single male member who possesses rights
which an absolute owner of a property may possess. It may even consist of two females
members. There must be at least two members to constitute Joint Hindu family. A single male or
female cannot make a Hindu joint family even if the assets are purely ancestral.
His acquisition in his individual capacity, that can be described as his exclusively owned or
separate property, and a share in the joint family property or coparcenary property, that he holds
with other members of the family.
Under Hindu Law, the property that a Hindu male may
possess, can be of two types:

Unobstructed heritage (i.e., Apratibandha daya): Ancestral property is

unobstructed heritage. 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

1
SIR DINSHAW FARDUNJI MULLA, HINDU LAW(21st ed.)
by birth. Their rights attach to it by their birth. The property is called unobstructed because the
accrual of the right to it is not obstructed by the existence of the owner2
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.3
The apratibandha daya or unobstructed heritage (ancestral property) does not devolve by
succession but by survivorship. The very definition of unobstructed heritage makes no
distinction between the property of the father and the property of the grandfather so far as the
son's right to take it as unobstructed heritage is concerned. That the right vested by birth in the
son extends to property acquired by the father is unequivocally stated by Vijnaneshwara thus:
"Therefore it is a settled point that property in the paternal or grandpaternal estate is by birth....".

Obstructed heritage (I.e. Apratibandha dara): Property inherited by a Hindu from a

person other than his father, grandfather or great grandfather is obstructed heritage. 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
'Useful Notes On Unobstructed Heritage And Obstructed Heritage' (World’s Largest Collection of Essays!
Published by Experts, 2013<http://www.shareyouressays.com/114868/useful-notes-on-unobstructed-heritage-
andobstructed-heritage> accessed 22 April 2016.
3
Ibid
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
0survivorship 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.

under the Mitakshara law when a Hindu male inherits property from his father, father's father or
father's father's father, the property in his hands is ancestral or joint family property in the sense
that in it his son, son's son and son's son's son acquire an interest by birth. The fact of the matter
is that where an HUF or Hindu joint family does not exist, it comes into existence for the first
time on the death of the father, when sons inherit his separate property and constitute an HUF,
and their son, son's son and son's son's son acquire in that property an interest by birth4.

Once such an HUF comes into existence and it continues to exist till a partition takes place or the
line becomes extinct5. For instance when P, a Hindu, constituting a nuclear family, dies leaving
behind a son, this son, on inheriting his father's separate property, cannot obviously constitute an
HUF or Hindu joint family since there cannot be a family consisting of a single person, but the
moment he gets a son, whether natural or adopted, he constitutes a Hindu joint family or an
HUF. Or, if P dies leaving sons or son's sons or son's son's sons, an HUF comes into existence
the moment he dies. Similarly, when a Dayabhaga Hindu dies and his sons inherit his property,
they constitute an HUF or corparcenary and when one of them dies leaving behind a son,
daughter or widow, he or she succeeds to his share in the HUF property and becomes coparcener
with the other surviving sons. Under the Dayabhaga school, a son does not acquire any interest in
any property by birth; but when the father dies, the sons succeeding him constitute a coparcenary

4
POONAM PRADHAN SAXENA , FAMILY LAW-II (lexis nexis, 4th ed,2019)
5
Hindu Succession Act, 1956.
and the coparcenary limit is the same as under the Mitakshara school. Thus, if, for instance, three
brothers succeed to the property of their father and one of them dies leaving behind a son, he
becomes a coparcener; if he also dies, his son becomes a coparcener. Should he also die, his son
becomes coparcener, but if this son dies leaving behind a son, he cannot become a coparcener
since he is beyond the coparcenary limit of three descendants. But for the purpose of taxation
laws, the Dayabhaga coparcenary is as much an HUF as the Mitakshara joint family. In fact, for
tax purposes the concept of coparcenary is not of much significance.

The tax laws are concerned with the HUF and not with coparcenary. The Act has introduced a
new line of heirs. These heirs are both males and females. They are intestate's son, daughter,
widow, mother; a pre-deceascd son's son, daughter and widow ; a predeceased son's son's son,
daughter and widow ; and a predeceased daughter's son and daughter. But does it mean that the
Act thereby also changed the character of the property inherited by a Hindu from his father,
father's father or father's father's father Or, when a Mitakshara Hindu dies leaving behind class I
heirs who include sons, predeceased son's sons or predeceased son's pre-deceased son's sons, will
not the sons, son's sons or son's son's sons take that property as joint family property ? 6 Or, when
a Dayabhaga Hindu dies leaving behind sons, will these sons, succeeding to the father's property,
not constitute a coparcenary or an HUF and take the property as coparcenary or HUF property ?

In Vedram Hukum Singh v. Tikaram7 , after the death of 9 the father, his property under the

Hindu Succession Act, was inherited by his two sons S1 and S2 and his widow each getting one

third of his property. S1 later sold the property to X. His son SS filed a suit against the father for

declaration of the sale as invalid as it was not for any legal necessity. The Court held that in the

separate property of the father, the son has merely a spes successionis and has no right to

question its alienation and re-iterated that the character of the property inherited by a son from

his father post enactment of the Hindu Succession Act is separate property and not the

6
https://www.manupatra.com/
7
AIR 2013 CHG 107
coparcenary property.

In Dipo v. Wasan Singh8 , two brothers A and B, inherited 14 the property from their father and

separated by effecting a partition between themselves. A had a daughter D and a son S. On the

death of A, his son S, took the properties by survivorship. He later died without leaving anymale

descendants, and his sister, D, claimed the properties by succession. Question came as to the

character of property. The character of property therefore, would be ancestral vis-à-vis the male

issues of the holder. In the absence of male issues, though he holds it as a sole surviving

coparcener and is entitled to treat it as his separate property, its character as coparcenary property

will revive the moment he gets a son. But if he dies without any male descendants, the property

loses its character of ancestral or coparcenary property and would be called his parents property

and will go by inheritance.

CONCLUSION

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.

8
AIR 1983 SC 846