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Hindu Law
Hindu Law
Hindu Law
SONS PIOUS
OBLIGATIONS
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CONTENTS
INTRODUCTION
WHAT IS SONS PIOUS OBLIGATION- HISTORY
AVYAVAHARIKA DEBTS
BURDEN OF PROOF THAT THE DEBT IS TAINTED IS ON
SON
CONCLUSION
BIBLIOGRAPHY
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Debts occupy a very important place in the Hindu system of law. This is one of
those areas of Hindu law which illustrate one of the fundamental principles of
the Hindu jurisprudence, viz., moral obligations take precedence over legal
rights. The Hindu sages have repeatedly enjoined that one must pay ones debts.
Brihaspati ordained: one who does not repay his debts will be born hereafter in
the creditors house as a slave, a servant, a woman or quadruped.1 According to
Narada: if a very religious and devoted person died indebted, the whole of the
merit of his sacrifices and devotions will belong to his creditor.2 The sages did
not stop here. They said that if a Hindu dies indebted, his sons must repay his
debts. This is considered to be the religious or pious duty of sons of discharging
their father from the sin of his debts. Not merely this, the sons son sons son
and sons sons son should also pay the debt of grandfather and great
grandfather. Only distinction between their liabilities was that son was required
to pay it with interest and grandson was required to pay only the principal
amount. The great grandson was required to pay only to the extent to which he
had the joint family property in his hands; he was not personally liable, though
the son and the grandson were made personally liable.3
Digest 1, 229
Narada Smriti, 1,9
3
See Narada 1, 4; Yajnavalkya 11
2
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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 Prasad5 , 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 obligation is 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
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The term Avyavaharika has been variously translated by writers and judges.
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. Any debt which is avyavaharika which is rendered by Colebrooke as
equivalent to a debt for a cause "repugnant to good morals'' comes in the list of
Avyavaharika debts6. 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
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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 Jethalal7, relying upon the judgments of the Privy Council 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.
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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
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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.
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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.
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BIBLOGRAPHY
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