Doctrine of Pious Obligations

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.
• 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 undischarged debtor even in the
after world. It is for the purpose of rescuing the father
from his torments in the next world that an obligationis
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

• 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 highly 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.
• 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.