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Introduction
Under the Hindu Law, a son is under a pious obligation to
discharge his
father's debts out of his ancestral property even if he had not
been
benefited by the debts, provided the debts are not avyavaharika.
The
sons get exonerated from their obligation to discharge the debt of
their
father from the family assets only if the debt was one tainted
with
immorality or illegality.
The duty that is cast upon the son being religious and moral, the
liability of the son for the debt must be examined with reference
to its
character when the debt was first incurred. If at the origin there
was
nothing illegal or repugnant to good morals, the subsequent
dishonesty
of the father is in not discharging his obligation will not
absolve the
son from liability for the debt.
In Hindu law there are two mutually destructive principles, one
the
principle of independent coparcenary rights in the sons which is
an
incident of birth, giving to the sons vested right in the
coparcenary
property, and the other the pious duty of the sons to discharge
their
father's debts not tainted with immorality or illegality, which
lays
open the whole estate to be seized for the payment of such debts.
According to the Hindu law givers his pious duty to pay off the
ancestors' debts and to relieve him of the death torments
consequent on
non-payment was irrespective of their inheriting any property, but
the
courts rejected this liability arising irrespective of inheriting
any
property and gave to this religious duty a legal character.
What is son's pious obligation- history
"If a debt contracted by the father has not been repaid during his
lifetime, by himself, it must be restored, after his death, by his
sons.
Should they separate, they shall repay it according to their
respective
shares. If they remain united, they shall pay it in common, or the
manager shall pay it for the rest, no matter whether he may be the
senior of the family or a younger member, who, during the absence
of the
oldest, or on account of his incapacity, has undertaken the
management
of the family estate".
- Asah.
Bhavasvn , a renowned scholar, states that there are three
possibilities:
1. If the sons have divided the inheritance, they divide the debt
according to their shares of the estate;
2. If they have not divided, but intend to do so, they pay off the
debt
from the estate prior to dividing the remaining property; &
3. If the sons remain undivided, the son or other heirs who assumes
the
responsibility for the family also assumes responsibility for the
debt Under the Hindu law, it is a pious duty on the part of the son
to pay
his father's debts provide that the debt are not tainted or for
immoral
purposes. As per the concept of a Hindu joint family under the
Mitakshara school of law, it was ordinarily joint, not only in
estate
but in religious matters as well. According to Mulla
4. "The law of heirship had close connection with the doctrine -
'He who
inherits the property, also offers the pinda. It was based upon
the
principle of consanguinity."
Mukherjea J., delivering the judgment of the Supreme Court in
Sidheshwar
v. Bhubaneshwar Prasad , has once again discussed this
question. According to the learned Judge, the doctrine of pious
obligation. has its origin in the conception of Smriti writers who regard
non-payment of debt as a positive Sin, the evil consequences of
which
follow the undercharged debtor even in the after world. It is for
the
purpose of rescuing the father from his torments in the next world
that
an obligations imposed upon the sons to pay their father's
debts."
A series of decisions in the courts of modern India have changed
the
traditional interpretation of the liabilities of the son,
grandson, and
great-grandson. The traditional distinction was that the son was
liable
to pay the principal and the interest, the grandson was liable to
pay
only the principal but no interest, and the great-grandson was
liable
only to the extent that the paternal estate came into his hands.
The
son, grandson, and the great-grandson are liable equally for
ancestral
debts, but not personally liable, and that their liability is
co-extensive and confined to the extent that they have joint
property in their possession.
It was not essential for the son to prove criminal liability
against the
father in respect of the debt in question in order to claim
exemption
from payment of such debt. The learned Judge pointed out that the
son
can claim immunity only when the father's conduct is utterly
repugnant
to good morals or is grossly un-just or is flagrantly dishonest.
Avyavaharik debts
In this section we will look as to what is meant by Avyavaharik
debts .Colebrooke defined it as a liability incurred for a cause
repugnant to
good morals. If it is unrighteous or wholly improper they cannot
be
called vyavaharika or legal debts. It may be that the debts
incurred by
the father for defending himself against criminal action against
others
or defending himself in an action brought by others are legal in
several
circumstances. If a debt was incurred to defend the rights of the
family
and to safeguard its interests, it is certainly legal in nature.
If a
debt is not tainted with illegality at its inception it may be
binding
on the son. The son may not be able to claim immunity from the
debts in
such cases. But, where the father's conduct which prompted the
incurring
of the debt, is utterly repugnant to good morals or is grossly
unjust or
flagrantly dishonest, then certainly the son can claim immunity
from its
liability. The learned author Mulla of Hindu Law (at pp, 350 and
351 in
l3th edition) places any debt which is avyavaharika which is
rendered by
Colebrooke as equivalent to a debt for a cause "repugnant to good
morals'' in the list of Avyavaharika debts. It is further stated
that
the fundamental rule is that the sons are not liable for the debts
incurred by father which are Avyavaharika. Colebrooke translates
it as
"debts for a cause repugnant to good morals." Aparaka explains it
as not
righteous or proper.
In a decision of a Full Bench in Bombay High
Court it was held
that
Avyavaharika debt means illegal, dishonest or immoral one. It is
not
essential for the son to prove criminal liability of the father in
order
to claim exemption. So, where a person in possession of property,
to
which he is not entitled, disposes of that property and deprives
the
rightful owner of that property, his conduct is dishonest and the
son is
not liable for the debts arising out of such conduct
Lord Dunedin of the Privy Council defined the antecedent debts as
antecedent in fact as well as in time ?i.e. not a part of
transaction
impeached. Thus two condition are necessary:
1. The debts must be prior in time and
2. The debts must be prior in fact.
A son could claim immunity only where the debt in its origin was
immoral
by reason of the money having been obtained by the commission of
an
offence; but not where the father came by the money lawfully but
subsequently misappropriated it. It is only in the former case
that the
debt answers the description of an Avyavaharika debt. If
originally the
taking was not immoral, i.e., if it did not have a corrupt
beginning or
founded upon fraud, it could not be characterised as an
Avyavaharika
debt and the son could not be exempted from satisfying that debt.
The
supervening event, namely, the misappropriation later on would not
change the nature of the debt. The vices should be inherent in the
debt
itself.
Immoral debts are those which are taken in furtherance of an
immoral
purpose such as for prostitution or for keeping of concubine. Thus
the
expenses of the marriage of concubine's granddaughter or to bribe
to
hindu women so that she may take one of his son in adoption or
purpose
of gambling will be for illegal purpose .the debts resulting from
the
vhighly tortuous act which at their inception are tainted with an
evil
purpose are avyavaharika.
Father's power of alienation for antecedent debts
The father himself can alienate the joint family property property
for
the discharge of his personal debt and son can challenge it only
if the
debts are tainted. This means that the father can do it indirectly
also.
The pious obligation of the son to pay off the father debt exits
whether the father is alive or dead. It is open to father during
his
life time , to convey joint family property including the interest
of
the son to pay off antecedent debts not incurred for family
necessity
or benefit provided the debts are not tainted with immorality. The
father can not do so after filing of the suit for partition.
Burden of proof that the debts is tainted is on sons
The obligation on son to pay off their father's personal debts is
religious obligation and if they want to wriggle out of it? they
can do
so only if the debts are tainted the son also have to show that
creditor
had the notice or knowledge that the debts was tainted.
The Apex Court in Luhar Marit Lal Nagji v. Doshi Jayantilal
Jethalal,
relying upon the judgments of the Privy Council referred to
(supra),
enunciated the principles thus : "the sons who challenge the
alienations
made by the father have to prove not only that the antecedent
debts were
immoral but also that the purchasers had notice that they were so
tainted."
The learned judge points out that the doctrine, as formulated in
the
original texts, has indeed been modified in some respects by
judicial
decisions. That under the law as it now stands, the obligation of
the
sons is not a personal obligation existing irrespective of the
receipt
of any assets, and that it is a liability confined to the assets
received by him in his share of the joint family property or to
his
interest in the same. The obligation exists whether the sons are
major
or minor or whether the father is alive or dead. If the debts have
been
contracted by the father and they are not immoral or irreligious,
the
interest of the sons in the coparceners property can always be
made
liable for such debts.
The proposition laid down in
Brij Narain's case is founded upon
the
pious obligation is that a Hindu son limited to his interest in
the
joint family property to pay the debt contracted by the father for
his
own benefit and not for any immoral or illegal purpose. By
incurring the
debt, the father enables the creditor to sell the property in
execution
of a decree against him for payment of the debt. The son is under
a
pious obligation to pay all debts of the father, whether secured
or
unsecured.
In Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni,
the
observations of the Supreme Court are as follows:
"Whether father is the Karta of a Joint Hindu family and the debts
are
contracted by the father in his capacity as manager and head of
the
family for family purposes, the sons as members of the joint
family are
bound to pay the debts to the extent of their interest in the coparcenary property. Further, where the sons are joint with their
father and the debts have been contracted by the father for his
own
personal benefit, the sons are liable to pay the debts provided
they are
not incurred for illegal or immoral purposes.
When a mortgage has been created by the father
A Full Bench of the High Court gave the following answer :
"In the case of a Hindu joint family consisting of a father and
sons
when a mortgage has been created by the father of joint property,
and a
decree has been obtained on the basis of the mortgage, the only
ground
on which the sons can challenge the mortgage and the decree is
that the
debt was incurred for illegal or immoral purposes and that for
this
purpose it is immaterial whether the mortgaged property has
actually
been brought to sale in execution of the decree or not."
It may be mentioned here that
the distinction between a father manager and a brother manager
cannot be lost sight. In the case of debts contracted by the
father manager, the son is bound to discharge the same on account
of the doctrine of pious obligation notwithstanding the fact that
the debt was contracted for no legal necessity, nor for the
benefit of the family. The doctrine of pious obligation has no
application in the case of the brother manager. Therefore, the
debt contracted by the
brother manager binds the other members the joint family only when
it was for legal necessity and for the benefit the family. The
doctrine of pious obligation has no application when the debt
contracted by the father was for any illegal or immoral purposes.
In Raja Brij Narain Rai's case , the Court regarding the doctrine
of
pious obligation said that the doctrine applies not only to an
unsecured
debt but also to a mortgage debt which the father was personally
liable
to pay. Further it was said that even where the mortgage is not
for
legal necessity or payment of an antecedent debt the creditor can
in
execution of the mortgage decree sell the estate without obtaining
a
personal decree against him. The son is bound by the sale unless
he
shows that the debt was non-existent, or was tainted with
immorality or
illegality. The pious obligation is that a Hindu son limited to
his
interest in the joint family property to pay the debt contracted
by the
father for his own benefit and not for any immoral or illegal
purpose.
By incurring the debt, the father enables the creditor to sell the
property in execution of a decree against him for payment of the
debt.
The son is under a pious obligation to pay all debts of the
father,
whether secured or unsecured.
In Hemraj v. Khem Chand
, the Court referred to the Judicial
Committee's view which held that the translation of the term
'avyavaharika' as given by Mr. Colebrooke makes the nearest
approach to
the true conception the term as used in the Smrithi text, and that
the
term does not admit of a more precise definition. The term
commonly used
in decisions and text books to describe those debts the father for
which
the son is not liable is 'illegal or immoral'. The expression was
doubtless originally meant to render 'avyavaharika' but it has
come to
be used as a compendious temi to cover all the cases enumerated in
the
smiritis. It is, therefore, expedient to use the term 'illegal or
immoral' purposes then 'avyavaharika' which as discussed by me
supra
eludes any precise definition.
No pious obligation is involved in the said debt inasmuch as it is
not
the personal debt neither the father nor the debts contracted for
the
benefit of the family. As understood the legal position is so
clear that
so long as the purpose is not tainted with the element of
illegality or
immorality the sons are liable under the doctrine of pious
obligation.
In Keshav Nandan Sahay Vs. The Bank of Bihar it was said that sons
are
liable under the theory of pious obligation for the preparation
debts
incurred by the father. The doctrine of pious obligation cannot
apply to
the wife and she, therefore, cannot be liable to the creditors on
the
principles applicable to the sons. On a partition between a
coparcener
and his sons, a share is allotted to the wife in her own right and
she
cannot be treated as mere representative of the husband. The
principle
is based upon ancient Hindu texts which do not mention the wife in
the
category of the sons and there is no statutory enactment ex-
tending
that doctrine so as to include her.
Ramasamayyan v. Virasami Ayyar
((1898) I.L.R. 21 Mad. 222). Even
where
the mortgage is not for legal necessity or for payment of
antecedent
debt, the creditor can, in execution of a mortgage decree for the
realisation of a debt which the father is personally liable to
repay,
sell the estate without obtaining a personal decree against him.
After
the sale has taken place, the son is bound by the sale, unless he
shows
that the debt was non-existent or was tainted with immorality or
illegality Apentala Raghavaiah Vs. Boggawarapu Peda Ammayya
In this case, the plaintiff's father Yellamanda did Tobacco
business
with the respondent and thereby became indebted to him and because
of
which the father sold the property to defendant for paying off the
debts. The respondent contested the petition by filing his counter
contending that the Tobacco business was done by the father the
petitioner for the benefit the joint family and the debt
contracted by
him is not 'Avyavaharika debt' that the petitioner is liable to
discharge such debt incurred by his father in connection with such
business.
In the case of
Sreerama Raju v. Palam Raju, which was heard by a
Division Bench, a Hindu father, who was an agriculturist, started
a rice
milling business for the first time and incurred some debts in
connection with that business. His sons, who are subsequently
born,
tried to contend as in the present case, that the alienations made
by
his father for discharging such debts contracted by him in
connection
with his newly started business are not binding on them. Their
Lordships
in that decision, wherein it was held that the debts contracted by
the
father in connection with the rice-mill business started by him,
which
are commercial debts, cannot be considered as 'Avyavaharika' debts
and
that the sons are, therefore, liable to discharge such commercial
debts
which are not 'Avyavaharika' debts under the theory of pious
obligation.
In the decision of the Supreme Court reported in
Manibhai v.
Hemraj,
also it is observed in para-38, after referring to various earlier
decisions of the Supreme Court as well as some other High Courts,
as
follows:
"Even if "any loan is taken by the father for his personal benefit
which
is found as vyavaharik debt and not avyavaharik, the sons are
liable to
discharge their father's debt under the doctrine of pious
obligation and
in this view the matter if any alienation the joint family
property is
subsequently made to discharge such antecedent debt or loan of the
father, such alienation would be binding on the sons.''
Analysis
The Hindu Undivided Family system is a unique feature of the
Indian
society and the concept of pious obligation acts as a thread which
binds
the family together and prevents it from disintegration. Pious
obligation includes both spiritual as well as material aspects and
makes
the heir(s) responsible/liable for spiritual duties, like
performing the
last rites of the deceased, paying back debts accrued by the
deceased
and also fulfilling other responsibilities left incomplete in
respect of
the joint family. Once pious obligation is abrogated, the concept
of
joint family also suffers a blow.
Conclusion
The doctrine of pious obligation under which sons are held liable
to
discharge their father's debts is based solely on religious
considerations; the doctrine inevitably postulates that the
father's
debts must be vyavaharik. If the debts are not vyavaharik or are
avyavaharik the doctrine of pious obligation cannot be invoked. "The
principle relating to the liability of the sons for debts incurred
by the father may be briefly recapitulated.
# In respect of debts
contracted by the father, even for his personal benefit, at a
point of time when he is joint with his sons, the sons are liable
to pay such debts, unless the debts were incurred for immoral or
illegal purposes.
#
This liability of the sons, which had its origin in an
obligation of piety and religion, has since metamorphosed into one
of legal liability but this 'does not, however, extend to debts
tainted with immorality.
#
The liability is not, however, personal in the sense that the
creditor of the father cannot proceed either against the person or
separate Property of the sons, but such liability is Restricted to
the interest of the sons in the family property.
#
It is settled that if the debt is contracted by the father after
partition, the son cannot be made liable
#
If, however, the debt is a pre-partition debt, the share of the
sons would be liable even after partition, if the debts of the
father are not immoral or illegal and the partition arrangement
does not make any provision for the discharge of such debts.
#
In case a creditor institutes a suit for the recovery of a debt
against the father before partition and obtains a decree, the sons
would be liable to discharge the decree passed against the father
even after the partition.
# Even in respect of a pre-partition debt, if a suit is instituted
against the father, after partition, but he dies and his separated
sons
are impleaded as legal representatives, the remedy of the
decree-holder
against the shares allotted to the sons on partition, would be in
execution and not by way of an independent suit.
# If, however, after partition, a suit is instituted against the
father
on a pre-partition debt and a decree is obtained against him, such
a
decree cannot be executed gainst the sons and a separate suit has
to be
brought against the sons in order to enable creditor to realize
the
amounts out of their shares.
Thus the liability of the interest of the sons in such cases to
discharge the debts incurred by the father is undisputed, though
the
method and manner of its enforcement by the creditor would vary
and the
sons must be afforded every opportunity, be it in a suit or
execution
proceedings to question the binding nature of the debt' or
liability.
After amendment of 2005
After the commencement of the Hindu Succession (Amendment) Act,
2005, no
court shall recognize any right to proceed against a son, grandson
or
great-grandson for the recovery of any debt due from his father,
grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or
great-grandson
to discharge any such debt.
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