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NATIONAL LAW INTITUTE UNIVERSITY, BHOPAL

FAMILY LAW-II

Project On

FATHER’S RIGHT TO ALIENIATE

Submitted to: Submitted by:

Ms. Kavita Singh Siddharth Vishwakarma
Assistant Professor 2018BALLB28
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Table of Contents
ACKNOWLEDGEMENT ..................................................................................................... 3

CERTIFICATE ...................................................................................................................... 4

INTRODUCTION .................................................................................................................. 5

STATEMENT OF PROBLEM .............................................................................................. 5

RESEARCH QUESTION ...................................................................................................... 6

RESEARCH OBJECTIVE..................................................................................................... 6

HYPOTHESIS ....................................................................................................................... 6

REVIEW OF LITERATURE................................................................................................. 6

AVYAVAHARIKA DEBT: .................................................................................................. 6

MATERIAL TIME FOR EXAMINING THE NATURE OF DEBT: ................................... 8

NATURE OF LIABILITY: .................................................................................................... 9

ANTECEDENT DEBT: ....................................................................................................... 11

ANTECEDENT DEBT AND FATHER’S RIGHT TO ALIENATE .................................. 12

SHIFT IN THE APPROACH OF ‘DOCTRINE OF PIOUS OBLIGATION: .................... 13

BURDEN OF PROOF: ........................................................................................................ 13

CASE LAWS ....................................................................................................................... 14

CONCLUSION .................................................................................................................... 16
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ACKNOWLEDGEMENT

At the very beginning I would like to thank Mrs Kavita Singh for affording me the
opportunity to research and present our findings and our views on such varied topics
concerning Family Law. This paper would not have come fruition without the able guidance
of our teacher. But also thanking Dr. V. Vijaykumar, Vice Chancellor, National Law
Institute University, Bhopal, to give us a chance to present our research.

Adding to the above, it would be hard not to think of my peers, and friends who have helped
me immensely in bringing this paper to life. But the most important persons are our Parents
who must be thanked for the unconditional love and support without whom this would not
have been possible.
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CERTIFICATE

This is to certify that the research paper titled “Fathers Right To Alienate” , has been prepared
and submitted by Siddharth Vishwakarma, who is currently pursuing his B.A. L.L.B. (Hons.)
at National Law Institute University, Bhopal in fulfilment of Family Law – II Course. It is also
certified that this is his original research report and this paper has not been submitted to any
other University, nor published in any journal.
Date: ………………..
Signature of the Student : ……………………….
Signature of the Research Spectator : ……………………….
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INTRODUCTION
Under the Hindu Law there is a special emphasis on the payment of one’s debt, as necessary
fro the salvation of the soul. The duty of a person to pay his debt during his life time is has a
religious connotation. Brihaspati says: “He, who having received a sum lent or the like, does
not repay it to the owner, will be born hereafter in his creditor’s house, a slave, a servant, a
woman or a quadruped”. And Narada says: “when a devotee, or a man who maintained a
sacrificial fire, dies without having discharged his debt, the whole merit of his devotions or
his perpetual fire belongs to his creditors.” And this obligation equally compels the son to
carry out what the ancestor has promised for religious purposes. It follows, then, that when
the debt creates no such religious obligation, the son is not bound to repay it, whether he
possesses assets or not; and there can certainly be no religious obligation where the debt is
of an illegal or immoral character. “The duty cast upon the son being religious or moral, the
character of debt should be examined from the stand point of justice and morality”. Father’s
debts have to be paid whether the family is benefited by them or not, but the case is otherwise
with the debts which the father incurs for immoral purposes, that the son is not bound to pay.

The liability of the son as also the grandson and the great grandson rests upon the well-known
theory of pious obligation, which enjoins upon them to pay off all their father’s debts, which
are not incurred for immoral purposes.1 The fact that the father was not Karta or manager of
the joint family or that the family consisted of other coparceners besides the father and sons,
does not affect the liability of the sons in anyway. It exists irrespective of these facts2. It was
at one time supposed that the pious obligation to pay ancestral debts did not enter beyond the
grandson. However, it has been held by the Privy Council that the great-grandson is bound
to pay the great- grandfather’s debts, and that his liability is co-extensive with that of the son
and grandson. If a man has to pay both his and his father’s debts, he must pay the latter first
and as among the father’s and the grand-father’s, the grandfather’s debt should be paid first.

STATEMENT OF PROBLEM
There has been a little discrepancy in the matter of paying of debt especially when Father
and Son are concerned.

1
Chacha Lingam v. Karuppan AIR 1938 Mad 849; Lakshmi Narayya v. Papayya AIR 1955 A.P. 97.

2
Sidheshwar Mukherjee v. Bhubneshwar Prasad (1954) SCR 117; Lalta Prasad v. Gajadhar Shukul A.I.R 1933
All
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RESEARCH QUESTION

• Can a father alienate his property in order to discharge his personal debt?

• On whom does the burden of proof shifts in the case of debt?

• What the status of liability in a case when son has separated himself by a partition?

RESEARCH OBJECTIVE

• To understand the nature of debt and also its liabilities.

• To reiterate various case laws under this head.

HYPOTHESIS

The researcher presumes that a father cannot pay his debt from his ancestral property.

REVIEW OF LITERATURE
Books Referred:

1. Paras Diwan, “Family Law”, Allahabad Law Agency, Faridabad, (7th Edn., 2005).

2. Mulla, “Principle of Hindu Law” Vol.II, in S.A. Desai Ed., Lexis Nexis Butterwoths,
New Delhi, (19th Edn., 2005).

Websites Referred:

1. http://www.manupatra.com (02 March 2020, 12:19 PM)

2. http://www.egalserviceindia.com (02 March 2020, 02:34 PM)

AVYAVAHARIKA DEBT:
Since the duty cast upon the son being religious or pious, the character of the debt should be
examined. Debt contracted for a purpose that could not be justified in accordance with
religious tenets or a person’s ‘dharma’, could not extend the obligation on the son or male
descendents for its repayment. If the father has incurred a debt for irreligious or non-pious
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purposes, there is no liability of the son to pay such debts. Mr. Colebrooke translates the
expression ‘avyavaharika’ as ‘any debt for a cause repugnant to good morals’. The
fundamental rule is that the sons are not liable for debts incurred by a father, which are
avyavaharika.

These avyavaharika debts are recognized by ancient smiritis and may be classified as follows:-

1. Debts due to spirituous liquor;

2. Debts due to lust;
3. Debts due to gambling;
4. Unpaid fines;
5. Unpaid tolls;
6. Debts due for anything idly promised without consideration or anything promised
under the influence of wrath;3
7. Suretyship debts due as surety for appearance, or for confidence or honesty of
another;
8. Commercial debts; and
9. Debts that are avyavaharika.
The last category “debts that are avyavaharika” is not an independent category but only a
residuary one comprising debts which are ejusdem generis with those that have been
enumerated.

It is now settled that a son is not liable for his father’s liabilities arising out of his criminal
liabilities. Where a Hindu father has lawfully received moneys, the fact that he subsequently
misappropriated them does not change the character of the debt, and the son’s liability
thereof is not affected by the supervening dishonest act of the father.4

3
‘Idly promised’ means acc to Mitakshara ‘promised to imposters, bards or wresters’.

4
Venugopala Swamy Temple v. Vishweswara 1969 AP 24.
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MATERIAL TIME FOR EXAMINING THE NATURE OF DEBT:

To examine whether a debt is avyavaharika or not, the relevant time is the inception, when
the loan was raised. In Ramasubramania v. Sivakami Ammal,5 Venkatasubba Rao, J.,
formulated the twin rules on the subject thus:

(1) if the debt is in it is inception not immoral, subsequent dishonesty of the father
does not exempt the son.

(2) it is not every impropriety or every lapse from right conduct that stamps the debt
as immoral. The son can claim immunity only when the father’s conduct is utterly
repugnant to good morals, or is grossly unjust or flagrantly dishonest.
In Hemraj v. Khem Chand6; a Hindu father was bound; according to the terms of a decree
passed in a partition suit, to hand over to his brother in time a promissory note allotted to the
latter by the decree. But as the father did not do so, he became responsible for the amount
due under the promissory note. A decree was passed against him i.e., in respect of loss and
damage cause by the negligence or wrongful act of the father. The court held that
examination of the nature or character of the debt should be made with reference to the time
when it originated; in other words, when the liability was first incurred by the father. If, on
such examination, it is found that at the inception the debt was not tarnished or tainted with
immortality or illegality, then it must be held that it would be binding on the son. The judicial
committee observed, “The subsequent dishonest conduct of father, which led to the suit and
decree, cannot affect the nature of the father’s debt which at its inception was a just and true
debt.” But we find that the exception of “illegal or immoral purposes” does not extend to
transactions which are imprudent, “unconsciously imprudent” or ‘unreasonable”.

In Toshan Pal Singh v. District Judge of Agra7 the Privy Council held that the drawing of
money for unauthorized purposes which amounted to a criminal breach of trust under the
IPC, was not binding on son. However, there was there was also a civil liability for the money
that was received by the father, but was not accounted for and for which no criminal liability
could be attracted. The sons were held liable for paying that amount.

5
AIR 1925 Mad 841, 845.
6
ILR (1943) All 727.

7
(1934) 61 l A 350
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NATURE OF LIABILITY:
1. Liability not Personal:
The liability of the son to pay debts of the father and grand-father is not a personal liability,
but it is a liability that extends to the undivided interest in the coparcenary property. It cannot
and does not bind the separate property of the sons. These debts bind only the undivided
share of the son in the coparcenary property. The son’s liability to pay his ancestor’s debt has
undergone radical change by the judicial decisions now under the Mitakshara law as
administered in all the states, the liability of the son, grandson and great-grandson to pay the
debts of their ancestor is not a personal liability, that is to say, the father’s creditor is not
entitled to proceed against their person or their separate property. They are not liable for
such debts unless they receive assets.8 It is limited to their interest in the joint family
property, unless there is acceptance of personal liability in the course of judicial proceedings.

The Privy Council, in Chockalingam v. Official Assignee of Madras9 observed:

“There can be no doubt that in many respects the Hindu law as administered today has
departed from the old Hindu law, the tendency being to restrict and not to extend the
limits of its doctrine. Thus while under the old Hindu law the liability for a father’s debt
extended to the personal property of the son, is now limited to his interest in the joint-
family property.”

2) Liability extends to the Great-Grandson:

Under the textual law the son has pious obligation to pay his father’s debt and father’s father’s
debt, whether he gets any property from him or not. But the great grandson is liable only if
he gets assets from the great grandfather. The term here includes a grandson, and a great-
grandson. These debts bind three immediate male descendents and the obligation ceases with
the fourth descendent. Brihaspati says, “Sons must pay the debt of their father with interest;
the son’s son must pay the debt of his grandfather, but without interest; and son’s grandson
shall not be compelled to discharge it.”

8
Maya Devi v. Rajlakshmi AIR 1950 Cal 1, Chandra Bhan v. Misrimal AIR 1955 Raj 11, Appa Rao v. Narsimha
Murty (1975) 2 Cut WR 589
9
AIR 1943 PC 15
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3) Liability exists whether father alive or dead:

Under the Shastric law the son was not liable to pay the debt of his father during his lifetime.
Yajnavalkya expressly says, “When the father has gone abroad, is dead, or is immersed in
difficulties also, his debts should be paid by the sons and grandsons; in the case of denial
when established by witnesses.” But the British Indian Courts transformed the future pious
obligation of son to pay off the father’s debts, into a present legal liability. The Privy Council
in Brij Narain v. Mangala Prasad10 has held that

“There is no rule that the son’s liability is affected by the question whether the father,
who contracted the debt or burdened the estate, is alive or dead”.

It is well settled that the liability of the sons to pay father’s debts exists whether the father is
alive or dead. The Privy Council in 1874 decided that the father can affect a sell of family
property in favour of the creditor which is binding upon the son,11 so the creditor can enforce
his claim by the decree and execution against the interests of both the father and the son in
the joint family property.
4) Father need not be the Karta
The true basis of pious obligation rule is the relationship of the father and son, and not the
incident of the father being the karta of the joint family. For the pious obligation to pay the
father’s debt to arise, it is not necessary that the father should be the manager or the karta of
the joint family or the family must be composed of the father and his son’s only and no other
male member.12 The liability of the son to pay his father’s debt does not rest on the principle
of agency but is a special liability created purely on religious grounds and can be enforced
only against the sons and no other coparceners.
5) Liability after the partition:
Where the debts were contracted after the son had separated himself by a partition, the share
of so obtained at the time of partition is not liable for payment of the father’s debt. But the
son is liable, even after partition, for the pre-partition debts of his father, which are not
immoral or illegal, and for the payment of which no arrangement was made at the date of
partition because by the mere device of partition with their father, the sons cannot get rid of
their pious obligation. After partition it is necessary that the creditor should institute a suit

10
AIR 1944 PC 50, Pannalal v. Naraini (1952) SRC 544, 553.
11
Girdharee Lal v. Kaantoo Lal (1874) IA 321.
12
Sidheswar Mukerji v. Bhubaneshwar Prasad AIR 1953 SC 497, Shammukham v. Nachu AIR 1937 Mad 140
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against the father as well against the son. The decree obtained against the father alone after
the partition in respect of a pre-partition debt cannot be executed against the property that is
allotted to the son in the partition.13

ANTECEDENT DEBT:
Antecedent debt means an indebtedness of the father prior in time to and independent in origin
of the particular dealing with the family property, whether by way of sale, mortgage or other
disposition in favor of the original creditor, which it is sought to enforce against the son. It
is antecedent in fact as well as in time, that is to say that the debt must be truly independent
of and not part of the transaction impeached14. To constitute an ‘antecedent’ debt it is not
necessary that the prior and subsequent creditors should be different persons. All that is
necessary is that the two transactions must be dissociated in time as well as in fact. Hence
where a previous mortgage deed is renewed in favour of the same mortgage, and the
consideration for the subsequent mortgage deed is the amount due on the earlier one, the
alienation would be one for an ‘antecedent’ debt, unless the first debt was a mere device and
was incurred merely for the sake of creating an antecedence in time and with a view to support
the subsequent deed.15 A mortgage executed by a father for his own purposes and not
justified by any family necessity is not binding upon his sons as a mortgage. The liability
under a mortgage which is not for an antecedent debt will however render a subsequent
mortgage or a sale binding upon the sons as the earlier mortgage would be antecedent to the
later alienation. The meaning of ‘antecedent’ debt was made clear in the case of Brij Narain
Rai v. Mangla Prasad16 by the privy council where the test laid down was whether the
transaction impeached was entered to pay off an antecedent debt, that is, a debt antecedent
to the transaction.

13
Pannalal v. Mst. Naraini AIR 1952 SC 170, Ningappa v. Vithappa AIR 1971 Mys 247; Hardwarilal v. Dwarka
Prasad AIR 1974 Raj 101
14
Buta Mal v. Gopal Singh Air 1930 Lah 1040, Kesar Chand v. Uttam Chand (1945) 72 IA 165
15
Kalappa v. Venkatesh AIR 1962 Mys 260. Ram Rekha Singh v. Ganga Prasad AIR 1926 All 545 (FB). Gopal Das v.
Topan Das (1935)16 Lah 624
16
AIR 1924 PC 50
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ANTECEDENT DEBT AND FATHER’S RIGHT TO ALIENATE

The father of a joint Hindu family may sell or mortgage the joint family property including
the son’s interest therein to discharge a debt contracted by him for his own personal benefit,
and such alienation binds the sons, provided-

1. A the debt was antecedent to the alienation, and

2. It was not incurred for an immoral purpose.17
We find that while it is pious duty for a son to pay off his father’s debts, it is also according
to Hindu law a pious duty for a person to pay off his own debts. It follows that alienation by
a father living jointly with his sons to pay off his antecedent debts, not incurred for immoral
purposes is alienation by him for the performance of indispensable duties within the meaning
of Mitakshara. The doctrine is based upon the pious obligation of the son to see that their
father’s debts are paid; in consequence, the son’s share is placed at the disposal of the father
so that he may be able to pay off his debts so as to relive his son from their duty. But this
debt must be antecedent to the transfer of property and not contemporaneous with it.18 Thus
if the alienation is a sale of a joint family property, the whole property will pass to the
purchaser. Again if the alienation is a mortgage, the mortgage may obtain a mortgage decree
against the father alone for the sale of the whole of the mortgaged property including the
son’s interest therein, and the sale in execution of the decree will bind the interest both of the
father and the sons in the property. But the father has no right to alienate his son’s share after
a partition between him and the son, although the alienation may be in respect of a debt,
which was contracted before partition.19
Again, we find that if the alienation is for legal necessity then to bind the son’s interest it is
not necessary to have recourse to the doctrine of antecedent debt 20. In a joint family, the
privilege of alienating the whole of the joint family property for payment of an antecedent
debt is the privilege only of the father, the grandfather and the great-grand father qua the
son, grandson or great grandson only. No other person has any such privilege. There is,
however, another condition, which must be satisfied before the son could be held liable, i.e.,
that the father acted like a prudent man and did not sacrifice the property for an inadequate
consideration. However great the necessity may be, if the joint family property is sacrificed

17
Sat Narain v. Sri Krishen Das AIR 1936 PC 277
18
Krishnaswami Iyangar v. Thiagaraja Pillaw AIR 1971 Mad 303 (304), Bithal Dass v. Chandratan AIR 1955 Raj 39
(DB).
19
Rathna v. Aiyanachariar (1908) 18 MLJ 599.
20
Lal Bahadur v. Ambika Prasad AIR 1925 PC 264.
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for an inadequate consideration it would be highly impudent transaction, and the transaction
would not be binding on sons.

SHIFT IN THE APPROACH OF ‘DOCTRINE OF PIOUS

OBLIGATION:
The Dharmashastra’s emphasis on payment of debts of father by the sons was to save the
soul of the father from evil consequences and was not directed towards benefiting the creditor
or the third party. The Privy Council in Sat Narin v Raj Bahadur Sri Krishan Das21 held
that “this Doctrine was not based on any necessity for the protection of third parties, but was
based on the pious obligation of the sons to pay see their father’s debt paid.” But the gradual
implementation of this doctrine by the court shifted the focus from the benefits that may
accord to the father to the rights of creditors to have their mony back. Now if the sons wanted
to escape from the liability of payment of their father’s tainted debts, they had to prove not
only that the debt was for immoral purposes, but also that the creditor or purchaser had
knowledge of the fact that it was for such purposes or was ‘avyavaharik’. The burden of proof
therefore, became very heavy for the son. The Pious obligations turned into legal liabilities.

BURDEN OF PROOF:
It is for the alienee to prove that the antecedent debt existed or that after the inquiries he, in
good faith, believed that it existed. The burden then shifted upon the sons to prove that the debt
was contracted by the father for an immoral or illegal purpose and that the alienee had notice
that the debt was so contracted.
In Luhar Amrit Lal v. Doshi Jayantilal 22 the Supreme Court laid down that the burden is
on the son who challenge the alienation to prove not merely that the antecedent debt was
immoral but, also that the alienee had notice that the debt was so contracted. The Burden to
prove that debts were for immoral purpose is not discharged by showing that the father lived
an extravagant or immoral life; there must be a direct connection between the debt and the
immorality set up by the sons.

21
63 lA 384, 395
22
[1960] 3 SCR 842, Railla Ram v. Balmokhand AIR 1922 7 Lah 60, Raj Kishore v. Madan Gopal AIR 1932 Lah 636,
Suraj Bunsi Koer v. Sheo Pershad 6 IA 88, 106.
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CASE LAWS

Brij Narain Rai v. Mangla Prasad 23

The karta of a Hindu joint family, governed by Banaras school of Mitakshara law, consisting
of him and two minor sons executed a mortgage of the joint family property in 1905 to A. In
1907 he executed a second mortgage of the same property of the same property to B. In 1908
he executes mortgage of the property to C to pay off the earlier mortgages to A and B. C then
sues karta and his sons on the mortgage of 1908 and obtained a decree ex parte.
The present suit was brought in 1913 by the sons’ mother on behalf of the minor sons for a
declaration that the decree passed in 1912 against their father and themselves was not binding
on them. The arguments put forward by the minor sons were:
1. as the father was alive, so they were not liable to pay them

2. the third mortgage was executed to pay off first two mortgages but those mortgages
were not antecedent debt. Therefore, third mortgage was not to pay antecedent debt.
Their lordships of the Privy Council laid down the five propositions:
1. The managing member of a joint estate cannot alienate or burden the estate qua
manager except for purposes of legal necessity; but
2. If he is the father and the other members are his sons, he may, by incurring debt, so
long as it is not for an immoral purpose lay the estate open to be taken in execution
proceedings upon a decree for payment of that debt.
3. If he purports to burden the estate by a mortgage then unless the mortgage is to
discharge an antecedent debt, it would not bind the estate.
4. Antecedent debt means antecedent in fact as well as time, that is to say, that the debt
must be truly independent and not part of same transaction impeached.
5. There is no rule that this result is affected by the question whether the father who
contracted the debt or burdened the estate, is alive or dead.
Luhar Amrit Lal v. Doshi Jayautilal 24
The father of a joint family lost heavily in speculation in gold and silver and to pay off the
losses borrowed money on the mortgage of the joint family property. The mortgagee
obtained a decree on the mortgage and sought to execute it by sale of the mortgaged property.

23
AIR 1924 PC 50
24
AIR 1960 SC 964
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The sons and wife of the mortgagor then sued for a declaration that the decree was not binding
since the debt though antecedent was immoral. It was held that the antecedent debt was
immoral but as the plaintiff had failed to prove that the mortgagee had notice of the immoral
character of the debt they were not entitled to succeed.
Venkatesh Dhonddev Deshpande v. Sou Kusum Dattatraya Kulkarni25
The loan was borrowed for improvement of the barren land. The loan was advanced and the
borrower failed to repay the loan as per the stipulations. The suit land was auctioned and it
was purchased by the defendant and the sale in his favour was confirmed and he was put in
possession. The plaintiffs stated that prior to the date of auction there was a partition between
the father and has sons and at this partition the suit land with its sub-divisions came to the
share of the plaintiffs and, therefore, the father had no saleable interest in the suit land and it
could not have been sold, at a revenue auction for recovering the personal debt of the father.
So, contending, plaintiffs brought an action declaring that the sale is not binding upon them
and possession may be restored to them.

The court held that where 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
coparcenery property. Further, where the sons are joining 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 were not incurred for illegal or immoral purposes. This liability arises from an
obligation of religion and piety, which is placed upon the sons under the Mitakshara law to
discharge the father’s debts, where the debts are not tainted with immorality. This liability
of the sons to pay the father’s debts exists whether the father is alive or dead.

25
AIR 1978 SC 1791
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CONCLUSION

The salient features of the Son’s Pious Obligation were laid down in the case of Virdhachalam
Pillai v. Chaldean Syrian Bank Ltd26 Where the court held that the liability of the son for debts
incurred by the father is governed by the following principles:

1. A father can by incurring debt, even though the same is not for any purpose necessary or
beneficial to the family so long as it is not for illegal or immoral purposes lay the entire joint
family property including the interests of his sons. Open to be taken in execution proceedings
upon a decree for the payment of that debt.

2. The father can, so long as family confines undivided alienate the entirety of the family
property for the discharge of his antecedent personal debts subject to their not being illegal or
immoral. In other words, the power of the father to alienate for satisfying his debts is
coextensive with the right of the creditors to obtain satisfaction out of family property including
the share of the sons in such property

3. Where a father purports to burden the estate by a mortgage for purposes not necessary and
beneficial to the family, the mortgage qua mortgage would not be binding on the sons unless
the same was for the discharge of an antecedent debt. Where there is no antecedence, a
mortgage by the father would stand in the same position as an out and out sale by the father of
family property for a purpose not binding on the family under which he receives the sale price
which is utilized for his personal needs. It need hardly be added that after the joint status of the
family is disrupted by a partition, the father has no right to deal with family property by sale or
mortgage even to discharge an antecedent debt nor is the son under any legal or moral
obligation to discharge the post-partition debts of the father.

4. Antecedent debt in this context means a debt antecedent in fact as well as in time, i.e. the
debt must be truly independent and not part of the mortgage which is impeached. In other
words, the prior debt must be independent of the debt for which the mortgage is created and
the two transactions must be disassociated in fact so that they cannot be regarded as part of the
same transaction.

26
AIR 1964 SC 1425
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