Doctrine of Pious Obligation

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This article was written by Akshita Jain, a student of Vivekananda Institute of Professional Studies.

Abstract

In Family law particularly dealing with Hindu customs and traditions expressly followed in Indian society have various aspects dealt in different prospect of life, which through societal and judicial developments gained a jurisprudential degree and a legal enforcement in the environment of practice. The comprehensive framework of legal enforcements altered many aspects of Hindu customs knowingly or unknowingly which help for a tangible betterment in the society, judiciary which was able to face all the hurdles encountered by the people through religious society reformed many aspects which removed the biased and inhuman environment. The Doctrine of Pious Obligation” which impose liability upon sons to repay their father’s debts, this study discuss about the transformation of this doctrinal practice from the Vedic to modern society which through another clause made women as heirs for property inheritance but left the responsibility to repay their father’s debts through pious obligation doctrine. Thus, it is revealed that by the recent amendments which derecognized this doctrine through its retrospective effects imposed a biased situation among the men.

INTRODUCTION

Hindu law is one of the ancient laws whose sources are not easy to be traced as it dates back to the point of time in the past when written material was unavailable and most of the communication was oral. In the ancient times, there was no difference between religion, law and morality, and they were cumulatively referred to as “DHARMA”. Later “Shrutis”, “Smritis”, “Commentaries”, “Customs”, “Judicial decisions”, and then “Legislative Enactments” have been made according to which Hindu society is regulated till date. The Hindu joint family is the normal condition of the Hindu society, its origin can be traced to the ancient patriarchal system where patriarch was head of the family and an unquestioned ruler who lays down rules and norms for other family members which has to be followed by the rest of the family members. The idea of the joint family was there to promote family welfare as a unit for which the personal rights of the family members can be sacrificed. Being member of the Hindu joint family, an individual is entitled to certain rights as well as duties such as coparceners are entitled to have ‘Right by birth’ in the coparcenary property, right to ask for partition, etc. other family members have right to residence in the joint family property and have right to be maintained from joint family property. As the fact, duties come along with rights, having a large number of rights, a joint family member also have a number of duties to be discharged.

Research Problem

Whether the laws and customs relating to the Doctrine of Pious Obligation is same in the present scenario as in the ancient times.

Hypothesis

Critical analysis of the prevailing laws laid down under the Hindu Succession Act and other acts relating to son’s obligation to pay father’s debt.

Objective

The aim of the study is to critically analyse the customs and ancient laws regarding son’s obligation to pay father’s debt, concept of the doctrine of pious obligation and position of the doctrine in the present India.

Methodology

Research is based on secondary sources using books, articles, government gazettes, documents on different authors opinion, legislations and news articles

Doctrine of Pious Obligation

One of the liabilities of the son under Hindu law is to pay his father’s debt. There is a special emphasis on the payment of one’s debt, as necessary for the salvation of the soul under the Hindu law. As there was little or no difference between the religion and the law in earlier times, the duty of a person to pay his debts personally and during his lifetime has attached the religious significance. To say, it was the religious not a legal duty of a person to discharge all his debts during his lifetime. Due to the belief in rebirth, it is said that even though the body is left behind, the soul carries the fruits of the deeds and burden of debts into the next life and that decides in what capacity and in which family a person is born. A text of Katyana says “Udvarikamadaya Swaminay na dadati yah; Satasyah daso bhratya ismepshoorivah jayategrahe” which means inability to pay a debt or non- payment due to conscious decision will see him reborn in the creditor’s house as a slave, a servant, a woman, or a quadruped.¹

If the debts are not paid, its consequences are inescapable. The only category of persons who can save a debtor from living a whole life of serving the creditor in the event of a rebirth, are his sons, grandsons (sons of sons) and great- grandsons (sons of sons of sons). If they repay the debt of the departed father, the next life of the father would be free from bondage, with his soul liberated from the burden of debts. The obligation of the sons to pay the debts of the father is religious and important for providing spiritual benefits to the departed father.² The liability to father’s, grandfather’s and great- grandfather’s debt is known as ‘Pious Obligation of the son to repay his father’s debt’.

The word ‘pious’ means ‘godly, religious, devout, reverential’. ‘Pious Obligation’ means duty of a Hindu due to deep devotion to religion.

It is said that non-payment of debts is a sin and also a crime. Any person, who died leaving the debts behind cannot go to heaven. The ‘putra’ i.e. the son, son’s son and son’s son’s son by clearing off such debts, discharges his parted father/ancestor from the indebtedness and enables him to reach the heaven. This duty or obligation of a son to repay the debts of the deceased father (parted ancestor) is rested upon a special doctrine, known as ‘The Doctrine of Pious Obligation’. A text of Narada says ‘Atah putrain jaten swarthmusrajya yalatah; ridat pitah mochneeyoh yathah no narake’ which means ‘The son born should without keeping his self interest in mind, liberate his father from debts earnestly so that he (father) may not go to hell’. Thus, the main emphasis was that the father (who did not pay his debts) should not incur the wrath of destiny that may see him living the life of bondage and drudgery and concern was not that the creditor should get his due. In Sat Narain vs Rai Bahadur Sri Kishan Das³, Privy Council observed 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 see their father’s debts paid. The doctrine of pious obligation under which sons are liable to discharge their father’s debt is based solely on religious consideration. The basis of doctrine is spiritual and its sole object is to confer spiritual benefit to the father. According to the dictates of Dharmashastras, the emphasis on the payment of debts is so strong that, 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 grandfather’s, the grandfather’s debt should be paid first, as was observed in Chockalingam vs Official Assignee of Madras.⁴

The term ‘son’ includes a son, grandson (son of a son) and great- grandson (son of son of a son). As these three can offer spiritual benefits to the ancestors. And under the Shastric tenets, the liability of all three differs slightly, as the son must pay the debts as if they were contracted by them himself, therefore he must pay both principal and interest, the grandson has to pay the principal and not the interest, but a great- grandson need not to pay at all, unless he has assets. According to Judicial view the liability of the grandson and great- grandson is co- extensive.

Avyavaharika Debt

The obligation of the son to pay his father’s debt extends to non- vyavaharika (or vyavaharika) debts only. Avyavaharika debt is one, which is taken for illegal or immoral purpose. 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, according to him it is a debt for a cause repugnant to good morals. As payment for debt was a religious and spiritual duty, the purpose for which the debt was contracted becomes important. Debts 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 descendants, for its repayment. Payment of debt that were “avyavaharikam” was not the spiritual or religious duty of the sons.

According to Vrihaspati, sons shall not be made to pay a debt incurred by their father for spirituous liquor, for idle gifts, for promises made under influence of love or wrath or for suretyship, nor the balance of a fine or toll liquidated in part by their father”.⁵

Vyasa says, “the sons need not pay in relation to his father’s debts, a fine or a balance or a fine or tax or its balance or that which is not proper”.⁶

Narada says, “A father must not pay the debts for his son but a son must pay a debt contracted by the father excepting those debts which have been contracted from love, anger, spirituous liquor, games or bailments”.⁷

Hindu law writers and judiciary have tried to convey the meaning of the Sanskrit term “avyavaharika” and although an exact description of the term in English does not exist, several authors have made an attempt to define and explain the term. Knight J explains “avyavaharika” as “unusual or not sanctioned by law and attributable to his father’s falling, follies or caprices”.⁸Sadasiva Iyer J explains it as a debt which is not supportable as valid by legal arguments and on which no right could be established in a creditor’s favour.⁹ According to Mookerjee J, it is that which is not lawful, usual or customary.¹⁰ The Supreme Court has accepted the definition given by Colebrooke as representing the correct meaning.¹¹

“Avyavaharika” does not mean debts contracted due to lack of prudence, lack of good managerial skills or negligence, needless or wasteful litigation, but it means a debt arising out of a contract that is for an improper or illegal purpose or for an act which in itself amounts to a criminal offence. The payment of these debts cannot be imposed on the sons. The following have been held as “avyavaharika” debts by the court and the son will not be legally bound to repay them:

Money to be paid under a decree passed against the father, for the amount he obtained after committing a theft.
Loan taken by the father to meet expenses of his vices.
Debt taken for paying the expenses for the marriage of the granddaughter of his permanently kept concubine.
Criminal misappropriation of goods and money as a cashier, agent, employee, receiver or surety.
The liability to pay the mesne profits and costs awarded against the father for forcibly and wrongfully dispossessing a “math” of its properties.
Money borrowed to pay a fine inflicted for a criminal offence.
Repayment in case of misappropriation of money by a minor, when the father was its guardian.
Payment for damages awarded under a decree obtained against the father for defamation, assault, false imprisonment or for malicious prosecution.
Debts contracted for meeting the costs of a suit brought by the father dishonestly, on the basis of a fraudulent and collusive deed.
Debts contracted by the father to fight a litigation against the son himself, to defeat the legitimate rights of the son.
Payment to a Hindu woman as a bride so as to induce her to take one of his sons in adoption.
Where the father constructed a dam which resulted in an obstruction to the passage of water to the property of a neighbour, consequent to which he brought a suit and was successful in obtaining a decree for damages, the Bombay High Court held that as in the first place, the father, as “a decent and respectable man” should not have done it; this act of him was “avyavaharika” and therefore, the repayment of a loan taken to pay the damages would not be binding on the sons.¹²

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 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.

The father himself can alienate the joint family 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 the debt not incurred for family necessity or benefit provided the debts are not tainted with immorality. The father cannot do so after filing of the suit of partition. In Muniswami vs Kuitty and Thadi Murali Mohan Reddi vs Medapati Gangaraju,¹³ it was observed that the Doctrine of Pious Obligation applies during the lifetime as well as the death of the father.

Vyavaharika Debt

A just debt, for which a father is competent to alienate the family lands, as against his sons, means a debt which is actually due, which is not immoral, illegal or opposed to public policy and which has not been contracted as an act of reckless extravagance or wanton waste and will be binding on the sons. The sons are liable to pay the telephone bills of the father after his demise, the liability of father for mesne profit, or for torts committed by him in relation to the property. Where the debts were contracted by the father to defend himself in a law suit for charges of forgery or fabrication, of defamation, or one under the Cattle Trespass Act, 1871, or for a decree passed against him for causing injury to crops by obstruction of a channel, or for debts contracted for business, or where the father was the managing director of a co- operative bank, drawing a salary, and he incurred the liability as a result of negligence in the discharge of his duties, such liability will be binding on the sons.

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. Where the debt was contracted for an illegal or immoral purpose, payment of it will not be binding on the son. But where receiving money was lawful at the time of receipt, subsequent commission of the offence by the father will not absolve the son from his obligation to pay the debts. Therefore, where receiving money was not a criminal offence, a subsequent misappropriation by the father would still bind the son, unless the misappropriation was done under circumstances that rendered the act criminal. Venkata Subbarao J has propounded the twin rules for determining whether a debt contracted by the father would be binding on the sons. They are as follows:

If the debt, in its inception is not immoral, subsequent dishonesty of the father does not exempt the son, and
It is not every impropriety or every lapse from right conduct that stamps the debt as immoral. The son can claim immunity only when thee father’s conduct is utterly repugnant to good morals, or is grossly unjust or flagrantly dishonest.

These rules were approved by the judicial committee subsequently, and it was observed that, the examination of the nature or character of the debt should be made with reference to the time when it was originated, i.e. when the liability was first incurred by the father. If the inception was not tarnished by or tainted with immorality or illegality, it would be binding on the son. In Toshan Pal Singh vs District Judge of Agra,¹⁴ the father was the secretary of Balwant Rajput High School Committee, Agra. The Government of India had given the school a huge grant for additions and alterations in the school building. The money was to be deposited in a specific bank and could be used for the above purposes only. A part of money was put in a fixed deposit and some amount was deposited in the father’s account, which he misappropriated and then died. The amount was sought to be recovered from the sons, who contended that the act of the father was criminal in nature and the sons cannot be made liable for that. The Privy Council held that the drawing of money for unauthorised purposes, which amounted to a criminal breach of trust under the Indian Penal Code, 1860, was not binding on the son. However, 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.

Liability is not personal

In a number of cases¹⁵, it has been observed that the liability of the sons to pay the debts of the father, grandfather and great- grandfather is not personal liability. It is the liability that extends to the undivided interest in the coparcenary property, it does not bind the separate property of the sons. Where the debts were contracted after the son had separated himself by a partition, the share so obtained at the time of partition is not liable for payment of the father’s debt.

In Keshav Nandan v. Bank of Bihar¹⁶, the Patna High Court has held that the sons are liable to pay debts contracted by the father before partition unless there was an arrangement for payment of these debts at the time when the partition took place. This view was again supported by Gujarat High Court in Jayanti Lal v. Shrikant¹⁷. The Court held that the doctrine of pious obligation applies to the debts contracted by the father before partition but it does not apply to debts incurred after partition.

The sons even after partition are under pious obligation to pay off the debt incurred by their father before partition. Where a money decree is obtained by a creditor against the Hindu father before the partition of the joint family property, the right of the pre-partition creditor to seize the property of the erstwhile joint family in execution of his decree is not dependent upon the father’s power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition. This undivided interest can be sold at the instance of the creditor, even to the extent of the whole of the property, but the property is liable only where the debts were contracted for a purpose that was neither immoral, nor illegal. In places where the son does not have a right to seek partition when the father is alive, his interest can be attached and sold even during the lifetime of the father, for the latter’s debt.¹⁸This pious obligation of the son to pay his father’s debt exist despite the fact that the father himself may be alive, but does not extend beyond the undivided share of the son in the property.

When character of debt is immaterial

The pious obligation of the son, grandson and great- grandson, depend upon the nature of the debts contracted by the father. If they were “avyavaharika”, i.e., they were contracted for illegal or immoral purposes or were improper, the sons cannot be compelled to repay them. But where the son inherits the property of the father, he can be compelled to pay the debts of the father from out of that property and here, the nature of the debts that the father might have contracted, would be totally immaterial. Even where the debts were tainted with immorality or illegality, the son will be liable, but the liability would extend only up to the assets that he has received from his father and not beyond that. Under Dayabhaga law also, where the son does not have a right by birth and succeeds to the property of the father as an heir, the rule is the same. In the absence of a male issue, a collateral inherited property, the liability to pay the debts is fastened on him, to the extent of the inherited property, irrespective of whether the debts were for an illegal purpose.

Antecedent Debt

A debt, the payment of which permits the father to sell the joint family property, must be an antecedent debt. Therefore, it is not every debt that would validate an alienation made by the father. “Antecedent” means prior in time to the present alienation of property by the father. The alienation should be for the satisfaction or payment of a debt that existed before the above alienation was contemplated by the father, and this alienation should be one that is challenged by the coparceners as not binding on them. It is taken for the purposes such as sale, mortgage, etc., but it must also have been taken by the father himself, and not for an immoral or illegal purpose.

Two conditions are necessary to bind the entire joint family properties, including the share of the sons i.e.,

The debt should be an antecedent one, and
It should not have been incurred for an immoral purpose

Father has power to alienate property for an antecedent debt. For which even a sale of the property undertaken to pay the antecedent debts of the father is valid and permissible, even to the extent of the whole of the estate.¹⁹ The coparceners can neither prevent the father from effecting such an alienation nor can they obtain an injunction restraining him from doing so. The only remedy that they have is to ask for a partition and demarcation of their shares. If they separate under a partition, then their shares cannot be alienated by the father to repay his own debts.

Burden of proof of the debt

The alienee has to prove that the alienation is for the repayment of an antecedent debt. He also has to show to the court, that he had acted in good faith, with bona fide intentions, after making due inquiries and had paid a fair price. Where the sons refute the stand of the alienee and impeach the alienation, they then have to prove that the debt was for an immoral purpose and the alienee had notice of it. Even if they prove the immorality aspect, but fail to establish notice on the part of the alienee, the alienation would be binding on them. This burden of proving that the father’s debt was tainted with immorality is not discharged by simply showing that the father lived an extravagant life, instead what they have to establish is the direct connection between the debt and the immorality.

The Apex Court in Luhar Amrit Lal Nagji v. Doshi Jayantilal Jethalal,²⁰ 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 coparcener’s property can always be made liable for such debts.

In Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni,²¹ the observations of the Supreme Court was 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 purpose.

Changed Approach of “Doctrine of Pious Obligation”

According to the Dharmashastra, payment of father’s debt by the sons was to save the soul of the father from evil consequences, and was not directed toward benefitting the creditor from the third parties. But, the gradual implementation of this doctrine by the courts, shifted the focus from the benefits that it may accord to the father, to the rights of the creditors to have their money back. Now, if the sons wanted to escape the liability of payment of their father’s tainted debts, they had to prove not only that the debt was for the immoral, illegal or improper purpose, bit also that the creditor or purchaser had knowledge of the fact that it was for such purposes or was “avyavaharika”. The burden of proof became very heavy for the son. If he was able to prove that the debt was such that he was under no obligation to pay, he had no choice but to pay it, if the proof that the creditor knew about the character of the debt fell short of what was required by the formal courts. While the original dictates from where the rule was deduced by the courts were silent about the knowledge of the creditors, the imposition on son to come up with strict proof of the same was the essential feature of the formal and technical adversarial form of litigation practised by the British Indian Courts. Thus, payment of one’s father’s debt is no longer a pious obligation, but has been turned into strict legal liability.

The Dharmashastra ordained that the coparcenary property could be alienated in cases of ‘Apatkale’, ‘Kutumbharte’ and ‘Dharmarthe’ only, but the alienation of such property is permitted in case of antecedent debt. The Supreme Court has observed that the sons cannot prevent their undivided interest in the property from being sold off to pay their father’s debt, even where the father borrows heavily for his personal use and fails to pay and dies.

Position after 2005

After the amendment in the Hindu Succession Act in 2005, the doctrine of pious obligation of sons to repay the debts have been expressly abolished. The law is prospective in application and cases arising prior to the promulgation of the amendment would continue to be guided by the principles governing the same by the classical law.

As per the Section 6 of the Hindu Succession Act, 1956, after the amendment the daughters shall have the same rights and liabilities as if she would have been a son. Therefore, the pious obligation has been deleted after the amendment Act of 2005 but the liability to pay the debt of the deceased father will be the same upon daughters as they would be on sons before the commencement of the 2005 amendment Act, But if however such heir has expressly to bind himself to fulfil the obligation, the provision will become redundant and inoperative. Since the commencement of this amendment the creditors rights are preserved against any heir born after the said Act was passed. If the daughter expressly agrees to give back the debt of her father then she can do it as per the guidelines under the amended section 6 of Hindu Succession Act.

Thus, it has been analysed that 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 socio-legal impact of the pious obligation doctrine is not consistent with the modern jurisprudential trends in the field of proprietary jurisprudence. The Hindu law as stands amended by the various Acts favours the absolute right of ownership with regards to Hindu females; it cannot stand to logic and reason that where the woman’s limited estate has been abolished the son’s right in the joint family property should be allowed to be taken away under the doctrine of pious obligation. What is important in this respect is to convert the pious obligation doctrine into the absolute obligation and bring it in conformity with the Dayabhaga school of Hindu law because that has already been the impact of
Chandersen’s decision of the Supreme Court.

Bibliography