Obstructed and Unobstructed Heritage:
The Mitakshara School divides property into two classes, viz.:
(i) Unobstructed heritage (apratibandha daya), and
(ii) Obstructed heritage (saprlatibandha daya).
Property in which a person acquires an interest by birth is called unobstructed heritage. It is so called, because the accrual of the right to such property has no obstruction. Thus, property inherited by a Hindu from his father, father’s father, or father’s father’s father, is unobstructed heritage, as regards his own children, grandchildren and great-grandchildren. Their right to such property arises from the mere fact of their birth in the family, and as soon as they are born, they become coparceners of such property, along with their paternal ancestor. Ancestral property, therefore, is unobstructed heritage.
Thus, if X inherits property from his father, and a son, Y, is afterwards born to him, Y becomes a coparcener with his father X from the moment of his birth, and becomes entitled to an equal undivided half share in such property. The property in the hands of X is unobstructed heritage, because the existence of X is no obstruction to Y acquiring an interest in the property.
If, however, the right to property accrues, not by birth, but on the death of the last owner (without leaving any issue), such property is called obstructed heritage. It is so called, because the accrual of the right to such property is obstructed by the existence of the owner of such property. Thus, property which devolves upon parents, brothers, nephews, uncles, etc., upon the death of the last owner, is obstructed heritage. These relatives do not take any vested interest in the property by birth. Their right to such property arises, for the first time, when the owner of the property dies. Until that time, they have a mere spec succession is (a bare chance of succession) to such property, which would be realised only if they live longer than the owner of the property.
Thus, if A inherits certain property from his brother, and afterwards has a son, B, the property is obstructed in the hands of A. This is so because В does not get any interest in the property during /4’s lifetime. It is only after the death of A, that В will get the property as A’s heir (by succession). It will be seen that, in his case, the existence of A is an obstruction to the accrual of any rights in the property in favour of B.
The most important distinction between obstructed and unobstructed heritage is that unobstructed heritage devolves by survivorship, whereas obstructed heritage devolves by succession. However, there are four cases in which obstructed heritage also passes by survivorship, viz.-
(a) Two or more children, grandchildren or great-grandchildren who are living as members of a joint family, succeeding as heirs to the separate (or self-acquired) property of their paternal ancestor, take the property as joint tenants with the right of survivorship.
(b) Two or more grandchildren by a daughter, who are living as members of a joint family, succeeding as heirs to their maternal grand-father, take the property as joint tenants with the right of survivorship.
(c) Two or more widows succeeding as heirs to their father also take the property as joint tenants with the right of survivorship.
(d) Two or more daughters, succeeding as heirs to their father, take the property as joint tenants with the rights of survivorship, except in the areas covered by the former State of Bombay, where they take an absolute interest in the property.
It may, however, be noted that the distinction between obstructed and unobstructed heritage is recognised only by the Mitakshara School. According to the Dayabhaga School, all heritages are obstructed, and no person, takes an interest by birth in the property of another person. The Dayabhaga School does not recognise the principle of survivorship. It recognises only the right of succession, and this right naturally accrues, for the first time, upon the death of the owner of the property.