BASIS AND NATURE OF PIOUS OBLIGATION OF SON TO PAY FATHER’S DEBT VIS-À-VIS STATUTORY MODIFICATIONS IN HINDU LAW Vijender Kumar Introduction Moral and legal obligations have common origin but the technology of their enforcement differs. Twentieth century jurisprudence concerned itself with legal obligations only. Because, generally, all legal obligations have their origin in moral obligations since, law has been defined as “minimum morality”. When an act affects the interests, rights and obligations of persons other than that of the doers the basis for law making, i.e., placing restrictions on the acts of persons whose acts affect other‟s interests, is justified. It is the duty of the state to prevent harm to third persons by the acts of others. The justification for making law is prevention of harm to others. The liberty of the person to act as one‟s wishes is protected so long as it is not harmful to others. The approach of the ancient Indian thinkers as to the concept of liberty was different. They will not permit an individual to do as one pleases, if his action is injurious to his own interest only and the third party is not affected. The ancient Indian codes embody norms prescribing conduct for individuals, and these norms have a priori basis, for example, if a person does not perform prescribed daily duties he is punished in the next world and incurs sin. It is this type of belief which is at the root of the doctrine of pious obligation of the son to pay the debt of his father. Bases of Pious Obligation in Ancient Indian Literature Ancient Indian legal literature is unique in its approach as to the authority of morals which was recognised even by the judiciary during the British Indian period, when precedence to moral obligations was given over legal rights. Pious obligation of the son is one such moral obligation where precedence to moral obligation was given over legal rights. A perusal of Vedic literature, the most ancient written record, makes one feel astonished as to how conscientious and serious thought has been given to the concept of debt and its payment. “The idea of the liability to pay off one‟s debts was developed in India in the most ancient times”.1 It has been said, “let us drive away the evil effects of bad dreams as we pay off debts”.2 The evolution and development of the concept of runa and the importance attached to its paying back is the basis of the modern doctrine of pious obligation of the son to pay the debt of his father; P. V. Kane observes : It appears to me that this theory of spiritual debts being already in the air, the same sanctity came gradually to be transferred to one‟s promises to repay monetary debts and carry out other secular engagements. The word runa had been applied both to spiritual and secular debts. It is on account of this that the son was not only desired for repaying the spiritual debt owed to one‟s ancestors, but he
Original research paper was published in the Journal of Indian Law Institute, New Delhi at 36 (1994) JILI 339-355. Professor of Law, Head, Centre for Family Law, NALSAR University of Law, Justice City, Shameerpet, Hyderabad- 500 078. 1 P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2 nd ed. 1972, p. 414. 2 Rg. VIII, 47, 17 ; vide P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2 nd ed. 1972. 1
was also expected to free his father (if the father could not himself repay the monetary debt) from the liability he incurred to his creditor.1 P.V. Kane‟s view is perfectly in consonance with the philosophy of ancient Indian law codes, popularly known as Dharmasastras.2 The ancient Indian literature is full of evidence of the importance given to the discharge of liability to pay off debt from ancient times. According to ancient Indian thought one is born indebted; and is under an obligation to discharge the liability.3 Liability of Son to pay father’s Debt according to Dharmasastras First of all it would be proper to examine the texts occurring in the code of Manu dealing with the son‟s pious obligation. Manu states that when a son has paid the three debts, let him apply his mind to (the attainment of) final liberation; he who seeks it without having paid (his debts) sinks downwards.4 Having studied the Vedas in accordance with the rules, having begotten sons according to the sacred law, and having offered sacrifices according to his ability, he may direct his mind to (the attainment of) final liberation. 5 A twice-born man, who seeks final liberation, without having studied the Vedas, without having begotten sons, and without having offered sacrifices, sinks downwards.6 Because a son delivers (trayate) his father from the hell called put, he was therefore called put-tra (a deliverer from put) by the self-existent (svayambhu) himself.7 Between a son‟s son and the son of a daughter there exists in this world no difference, for even the son of a daughter saves him (who has no sons) in the next world, like the son‟s son.8 These texts state that the son was desired not for the sake of spiritual reasons alone but one of the most important reasons was the desire of the father to secure guarantee through the birth of a son for the discharge of his secular liability also, most important of the liabilities being the liability to pay off one‟s debt. The non-payment of debt not only affected the next life of the debtor but it also made the life of the debtor miserable in this world itself. A very detailed account of the liability of the son to pay off his father‟s debt has been given by Narada. Which debts must be paid, which other debts must not be paid; by whom, and in what form (they must be paid); and the rules of gift and receipt, (all that) is comprised under the title 1 P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2 nd ed. 1972, p. 416. 2 Narada IV, 5, 9; Katyayana, 551, VI, IX; Manu, 35, 37; Vasishtha, 17.5; Vishnu Dharmasastra, 15, 46. 3 From very ancient times one of the articles of faith was that a man was born with debts that he owed three debts to Sages, Gods, and Pitras and that by brahmacharya (studenthood), by performing yajnas and by procreating sons he freed himself from those three debts respectively. Vide. VI Tai. S., 3 10.5; Sat. Br., 1.7.2.11; Att. Br., 33.1. The last very succinctly states the purposes served by a son, viz., payment of the debt to ancestors, the securing of immortality and heaven, Rigveda, 4, 10 (Prajabhiragne amrtatvam-asyam) prays („may I obtain immortality through progeny‟, Vas. Dh. S., 17, 1, 4 quotes these passages of the Tai. S.; Ait. Br.; and Rg. The X Rg. 85, 45, invokes the blessing of ten sons on the newly married bride and the Rg. is full of the yearning for a son at every step, vide Rigveda, 1, 91, 20, 1, 92, 13. III. 1, 23 and C. Jaimini (VI.2.31) discusses the passage of Tai, and arrives at the conclusion that the duties laid down in it are obligatory and not left to choice and Sabara adds another explanation that these duties are obligatory on all dvijatis and the word „brahmana‟ is used in Tai. S., as illustrative only. Vide P.V. Kane, HISTORY OF DHARMASASTRA, vol. III, 2nd ed. 1972, pp. 560-561. 4 Manu, VI, SBE, vol. 25, p. 35. 5 Ibid, p. 36. 6 Id., p. 37. 7 Manu, IX, SBE, vol. 25, p. 138. 8 Ibid, p. 139. 2
of “recovery of a debt”. The father being dead, it is incumbent on the sons to pay his debt, each according to his share (of the inheritance), in case they are divided in interest. Or, if they are not divided in interests, the debt must be discharged by that son who becomes manager of the family estate. If a debt has been legitimately inherited by the sons, and left unpaid by them, such debt of the grandfather must be discharged by his grandsons. The liability for it does not include the fourth in descent. Father‟s wish to have sons on their own account, thinking in their minds, that “he will release me from all obligations towards superior and inferior beings”.1 As regards the liability of the ancestors Narada states : Three deceased (ancestors) must be worshipped; three must be reverenced before the rest. These three ancestors of a man may claim the discharge of their twofold debt from the fourth in descent.2 On this text Jolly refers to litigation from Ashaya‟s commentary on the Naradasmriti which throws light on the nature of the liability of the son, grandson, and great-grandson to pay the debt of their ancestors. He observes: Three deceased ancestors, i.e., the father, grand-father, and the great-grandfather, may claim the discharge of their terrestrial and celestial liabilities from the fourth in descent. This rule is illustrated by the history of an action which was brought before a court in Patna. A merchant of the Brahman caste, by the name of Sridhara, had lent the whole of his wealth, consisting of 10,000 drammas (drachmas), which he had gained through great labour, to a trader, by the name of Devadhara, on condition that interest amounting to two per cent, per mensem of the principal stock should be paid to him. The interest was duly paid to Sridhara at the end of the first month. In the second month, however, Devadhara met his death through an accident. His son died of an attack of choleral. Devadhara‟s great-grandson alone was left. His name was Mahidhara. As he was addicted to licentious courses, the management of the estate was undertaken by his sons, and maternal uncles. They got into the hands of a cunning Brahman called Smartadurdhara, who advised them not to pay a single rupee to Sridhara, as he was able to prove from the law-books that he had no claim to the money. The uncles of Mahidhara, much pleased with this piece of advice, promised to give 1,000 drammas to the Brahman if they need not pay the money to Sridhara. Thus, when at the close of the second month, the uncles and guardians of Devadhara‟s great-grandson, Mahidhara were asked by Sridhara to pay 200 drammas, being the amount of interest due on the sum lent to Devadhara, they refused payment. They said : „we do not owe you the principal, much less any amount of interest. The Brahman Smartadurdhara has pointed out to us that the obligation to pay stops with the fourth in descent‟. Sridhara was struck dumb with grief and terror on hearing this announcement made to him. When he had regained his senses, he repaired to the court of justice, attended by his family, friends, and servants, and impeached Mahidhara, together with his uncles, for their dishonesty. Both parties took sureties. The uncles of Mahidhara engaged Smartadurdhara to plead for them. After pretending his clients to be connected with his family by a friendship of long standing, he went on to refer to a text of Narada as proving that the obligation to pay the debts of ancestors stops with the fourth in descent. All his 1 Narada, 1, 2, 4, 5, SBE, vol. 33, pp. 41-42 2 Ibid, pp. 43-44. 3
arguments, however, were refuted, and held out to derision by a learned Brahman, by the name of Smartasekhara, who, at the end of his address, charged him openly with having taken a bribe from his clients. The consequence was that Mahidhara and his uncles lost their cause.1 This case is quoted in full, because it presents a vivid picture of the way in which actual judicial proceedings used to be transacted in ancient India before the advent of the Muslim and the British influence. The case of Sridhar v. Mahidhar2 illustrates that the obligation of the son was an independent obligation based on religious texts. It was actually acted upon irrespective of the fact whether the son acquired the property of the father or not. The obligation was independent of receipt of property. Narada states the consequences for non-payment of debt. The liability does not die with the death of the debtor; therefore, the son has to pay the debt. If a man fails to pay on demand what had been borrowed or promised by him, that sum (together with the interest) goes on growing till it amounts to a hundred crores (one milliard).3 A hundred crores having been completed, he is born again, in every successive existence, in his (creditor‟s) house as his slave, in order to repay the debt (by his labour).4 Brihaspati says that the father‟s debt must be paid first of all, and after that, a man‟s own debt; but a debt contracted by the paternal grandfather must always be paid before these two even.5 The father‟s debt, on being proved, must be paid (by his son‟s sons) without interest; but the son of a grandson need not pay it at all.6 We find that Brihaspati has made a distinction in the liabilities of son, and grandson, and has absolved the great grandson from the liability to pay the debt of his great grandfather. The views of Brihaspati are not in conformity with the texts of Narada and Manu, who are of the opinion that debts of three ancestors are to be paid, three ancestors are to be worshiped and the consequential liabilities of the three ancestors must be discharged. It is the considered opinion of the ancient Indian jurists that the liability of son arises from religious injunctions, the nonfulfillment of which is also a sin. From this theory it follows that the son is not liable to pay off the debt of his father if the nature of debt is irreligious. According to Katyayana a debt contracted by the grandfather which is known to the father and is not paid by him the grandson‟s liability is to the extent of paying the principal only without interest.7 He further says that a debt incurred by the father should be cleared at the time of partition and Narada says that the son should try his best to absolve his father from debt.8 Brihaspati says that a loan shall be restored on demand, if no time has been fixed (for its restoration); or on the expiration of the time (if a definite period has been fixed); or when
1 2 3 4 5 6 7
Narada, 1, 2, 4, 5, SBE vol. 33, pp. 43-44. Ibid. Narada, 7, p. 44. Narada, 8, p. 44. Brihaspati, XI, 48, SBE, vol. 33. Brihaspati, XI, 49, SBE, vol. 33, pp. 328-329. If a debt that had been contracted by the grandfather and was known to the father as valid and as not discharged by the sons of the original debtor, it should be paid without interest by the grandsons-(Katyayana in Smrtichandrika, 397), and Apararka. 651. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 208. 8 Narada quoted in Vivadaratnakara, p. 54. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 203. 4
interest ceases (on becoming equal to the principal). If the father is no longer alive, the debt must be paid by his sons.1 Yajnavalkya says that if the father is dead or gone abroad or smitten with trouble, his debt should be paid by his sons and grandsons; if on denial, it is proved by witnesses.2 Commenting on this text Mitakshara says that the sons and grandsons have to pay even though they may not have inherited any property from the father. The order of the liability is that in the absence of the father, the son has to pay, and in the absence of the son, the grandson has to pay.3 So far the liability of the sons to pay the debt of his father during the lifetime of the the father is concerned the Hindu jurists have imposed a duty on the son to pay the debt of the father even during his lifetime if the father has become unable to pay the debt because of his old age and disease.4 There are texts which make the son and the grandson liable to pay the debt of their father and grandfather irrespective of the fact whether they have acquired the property from them or not; their duty is of religious nature. The duty to pay the debt was independent of receipt of any property, grandson‟s liability according to some writers is only to pay the principal amount on their attaining the majority.5 The original texts contained in the legal literature right from the time of Rigveda down to the Dharmasastra period in unequivocal terms declare the liability of the son to pay the debt of his father. This liability extends to the grandson and is not dependent on the fact whether the father or the grandfather has left property or not. The consequences for non-payment of debt are not only temporal but the indebtedness of a debtor follows him in the next life according to the Hindu jurists. There are innumerable texts to this effect. Brihaspati says that “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”.6 And Narada says that “when a devotee, or a man who maintained a sacrificial fire, dies without having discharged his debt, the whole merit of his devotions, or of his perpetual fire belongs to his creditors”. The duty of relieving the debtor from these evil consequences falls on his male descendants, to the second generation, and was originally quite independent of the receipt of assets.7 According to Indian legal literature the son is desired because of the reasons that he would pay the debts spiritual and worldly of his father. Because of the reasons that the pious 1 2 3 4
Brihaspati, XI, 47, SBE, vol. 33, p. 328. Yajnavalkaya, 2, 50. Vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 209. G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 204. Even when the father is alive if he is stricken by disease, or has gone away from the country, his sons shall pay his debt after twenty years. (Katyayana in Smrtichandra, 394). 5 If, on repudiation, it has been proved by witnesses and other proofs, the debt shall be paid by the sons and grandsons (Yajna 2.50). The grandsons shall pay the grandfather‟s debts only after attaining their majority, (Smrtichandrika, 398). If he who contracted the debt should die or become a renunciate, or remain abroad for twenty years, that debt shall be discharged by his sons and grandsons; but not by remoter descendants; against their will, (Visnu 6.27-28) (quoted in Smrtichandrika, 398); G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930, p. 209. 6 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10 th ed. 1938, p. 395; dig. I. 228. The text is not found in Brihaspati, SBE, vol. 33. Nilakantha attributes the text to Katyayana in Vyav. Mayakha, V, IV, II Narada, SBE, vol. 33, 1.7.8 p. 44 says. If a man fails to pay on demand what had been borrowed or promised by him, that sum (together with the interest) goes on growing till it amounts to a hundred krores (one milliard). A hundred krores having been completed, he is born again, in every successive existence, in his (creditor‟s) house as his slave, in order to repay the debt (by his labour). 7 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10 th ed. 1938, pp. 395-396. 5
obligation of the son is based on the authority of the religion, therefore, as a logical corollary it follows that the son is not to pay the debt of his father which are irreligious in character, the reasons for this are: First, there are religious authorities absolving the son from the liability to pay debts of the father which are irreligious in nature in the same way as there are religious authorities which impose liability on sons to pay off the debt of their fathers. Second, to make the son liable to pay irreligious debt would amount to the contribution and augmentation of irreligious acts of the father. Debts Son not Liable to Pay Manu enumerates certain types of the debts which a son is not liable to pay. They are : The man who becomes a surety in this (world) for the appearance of a (debtor) and produces him not, shall pay the debt out of his own property. 1 But money due by a surety, or idly promised, or lost at play, or due for spirituous liquor, or what remains unpaid of a fine and a tax or duty, the son (of the part owing it) shall not be obliged to pay.2 The just mentioned rule shall apply to the case of a surety for appearance (only); if a surety for payment should die the (judge) may compel even his heirs to discharge the debt.3 On what account then is it that after the death death of a surety other than for payment, whose affairs are fully known, the creditor may (in some cases) afterwards demand the debt (of the heirs). 4 (If the surety had received money (from him for whom he stood bail) and had money enough (to pay), then (the heir of him) who received it; shall pay (the debt) out of his property; that is the settled rule.5 A contract made by a person intoxicated, or insane, or grievously disordered (by disease and so forth), or wholly dependent, by an infant or very aged man, or by an unauthorised (party) is invalid. 6 That agreement which has been made contrary to the law or to the settled usage (of the virtuous) can have no legal force, though it be established (by proofs).7 There are texts of Gautama who also absolves the sons to pay certain debts contracted by the father. The sons shall not be made to pay surety money, trade duties, debts due to gambling or drinking or fines.8 Brihaspati says, debts due to liquor, gambling, futile gifts, gifts promised in love or anger, surety, money balance of fines and taxes, these debts of the father the son shall not be made to pay.9 “Gifts promised in love” and “taxes” have been commented differently by Apararka, Haradatta and Balambhatti.10 There are certain types of gifts which a son is not liable to pay.
1 2 3 4 5 6 7 8 9 10
Manu, VIII, 158, SBE, vol. 25, p. 282. Manu, VIII, 159, SBE, vol. 25, p. 282. Manu, VIII, 160, SBE, vol. 25, p. 282. Manu, VIII, 161, SBE, vol. 25, p. 282. Manu, VIII, 162, SBE, vol. 25, p. 283. Manu, VIII, 163, SBE, vol. 25, p. 283. Manu, VIII, 164, SBE, vol. 25, p. 283. Gautama, 12, 41, quoted in Vivadartnakara, 58. Brihaspati, XI, 51; also Yajna 2, 47, where however “anger” has been omitted. Gifts promised in love, i.e., in adulterous love-making, „gifts promised in anger‟ in a fit of anger a man damages the property of another person, and then in order to placate him, promises a present, this is what is meant-(Apararka, 649). „Shukla’ has been explained by Haradatta on Gautama as „bride-price‟, Balambhatti explains it as „taxes‟; vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I, 1930. 6
Fine or balance of fine, tax or balance of tax, or what is not proper, such debts of the father, the son shall not pay.1 John D. Mayne has enumerated from these taxes certain categories of debts which a son is not required to pay.2 Debts which are not to be paid by sons and grandsons according to Dharmasastra are termed avyavaharika debt. Vyas and Usanas have used the term avyavaharika. The term avyavaharika has been used to devote the debts similar in nature to debts which a son is expressly absolved from paying. Various scholars have understood the term avyavaharika differently. According to Colebrooke the term means “any debt for a cause repugnant to good morals”.3 Jagannatha understands it in the sense of unlawful, unusual and not customary, since the word vyavaharika means „lawful, usual or customary‟.4 The expression in the text of Vyasa (na vyavaharikam) is explained by Misra, as “excluded from usual causes”. Consequently the debt which is contracted for some civil purpose consistent with the prescriptive usage of good men must be paid by sons and the rest; but if it be the reverse, it need not be discharged.5 The interpretation of the term vyavaharika by V.N. Mandlik and Jogendranath Bhattacharya as „proper‟ is in accordance with the opinion of Apararka and there is no material difference between the three renderings. The last category of avyavaharika debts is not an independent category but only a residuary one comprising debts which are ejusdem generis with those that have been enumerated.6 John D. Mayne says : The term commonly used in decisions and text books to describe those debts of 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 term to cover all the cases enumerated in the Smrities.7
1 Vyasa in Vivadaratnakara, 58, but Ushanas in Apararka, 648 and in Mitakshara, 47. That is not proper. This is the meaning of „na viyavaharikam‟, as explained by, Apararka: Smrtichandraka and Viramitrodaya explain it as „due to wine‟: Balambhatti as „what was not used for the family; Vivadachinitamani as „what is not admissible under normal conditions, or „what is not admissible in law‟. P. V. Kane remarks that the Bombay High Court (ILR 32 Bom 348) has accepted the meaning to be a debt which no decent or responsible man would incur‟: Allahabad (33 All 472). Madras (37 Mad 48) and Calcutta High Courts (39 Cal 862) have dissented from the above: Calcutta High Court explaining it as „what is not lawful, usual or customary or which is for a cause repugnant to good morals‟: vide G.N. Jha, HINDU LAW IN ITS SOURCES, vol. I,1930. 2 (i) debts due for spirituous liquor; (ii) debts due for lust; (iii) debts due for gambling; (iv) unpaid fines; (v) unpaid tolls; (vi) debts due for anything idly promised or promises without consideration or anything promised under the influence or wrath; (vii) suretyship debts due as surety for appearance, or for confidence or honesty of another: (viii) commercial debts; and (ix) debts that are not “vyavaharika”; vide S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10th ed. 1938. 3 Dig., I, 211; vide S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10th ed. 1938, p. 398. 4 S. Srinivasa Iyengar (rev.), John. D. Mayne, TREATISE ON HINDU LAW AND USAGE, 10th ed. 1938, p. 398. 5 Supra n. 3, pp. 398-399. 6 Supra n. 4, p. 399. 7 Supra n. 4, p. 399. 7
When Gautama says : Pratibhavyavaniksulkamadyadyutadanda na putranadhyabhaveuh.1 He does not refer to debts which are incurred in due course of business. He refers to such debts. (i) which are speculative and hazardous ventures; and (ii) the son is not liable to pay because he recognises trading as an occupation of Vaisya community.2 Such debts incurred for ordinary trade activities cannot be placed in the category of debts which a son will not be liable to pay. Son’s Liability : Judicial Approach Immoral, illegal and avyavaharika debts fall in the category of debts which are not payable by the son under the pious obligations doctrine. Avyavaharika debts do not form a separate category of debts from those known as immoral or illegal debts, they comprise only residuary ones which are ejusdem generis with illegal and immoral debts. Mahabir Prasad v. Basdeo Singh,3 is a case in which the question of avyavaharika debt arose before the court. The The facts of the case were that a decree was made against a Hindu, governed by Mitakshara, for money which he had criminally misappropriated. The transferee by sale of the decree brought to sale in execution thereof the judgment debtor‟s right of occupancy in certain land as a tenant at fixed rates. The judgment debtor‟s two sons brought a suit against the purchaser to recover two third of the holdings. It was held that the right of occupancy at fixed rates in such land was ancestral property, that is, property in which under Hindu law the sons took vested interest by birth. There was no doubt that the debt for which the decree was obtained was one not binding on the sons, the decree being obtained for money which Laljit had embezzled. The respondent was not entitled to be protected as a purchaser at an execution-sale without notice, on the principle laid down by the Privy Council in Girdharee Lall v. Kantoo Lal,4 and Suraj Bunsi Koer v. Sheo Prasad Singh.5 The decree was a mere money-decree against the father of the plaintiffs personally, and and the family property was not liable to be taken in execution of the decree, and the respondent was to satisfy himself on these points by examining the decree. This point was elaborated in Suraj Bunsi Koer’s case.6 The other important case is Durbar v. Khachar,7 in which the plaintiff obtained a decree against the defendant‟s father for damage to the plaintiff‟s property caused by a dam erected by the latter which obstructed the passage of water thereto. On the latter‟s death the decree was sought to be enforced against his son with respect to the ancestral estate in the hands of the son. The court referred to the text of Usanas which reads : A fine, or the balance of a fine, likewise a bribe or a toll or the balance of it, are not to be paid by the son, neither shall he discharge improper debts.8 The court observed that applying these maxims to the case before us, we must conclude that the son is not liable under the decree. His father‟s act in obstructing the passage of water to the decree holder‟s lands may not have been illegal in the usual sense of the term that is to say, 1 2 3 4 5 6 7 8
Gautama, 12, 41; G.N. Jha, HINDU LAW IN ITS SOURCES, Vol. I, 1930, p. 207. Gautama, 10, 49; G.N. Jha, HINDU LAW IN ITS SOURCES, Vol. I, 1930, p. 207. (1884) ILR 6 All 234 (1874) 1 IA 321. (1879) 6 IA 88. Ibid. (1908) 32 Bom 348. Mitakshara, II, 48. Vide Bhattacharya, HINDU LAW, 2 nd ed., p. 247. 8
it may not have been committed in contravention of any express provision of the law; but the result of the suit shows that it was wrongful, and for a liability so incurred the son cannot be held answerable when the estate that has come to his hands has derived no benefit from the act.1 In Chhakauri Mahton v. Ganga Prasad,2 the Calcutta High Court examined the question of the son‟s pious liability in case of avyavaharika debt, and observed that there has been a well marked divergence of judicial opinion upon the question, how far a Hindu son is under a pious obligation to discharge a debt of his father when such debt consists of money misappropriated by the latter. Mahabir Prasad v. Basdeo Singh,3 Pareman Dass v. Bhattu Mohton,4 and McDowell v. Ragava Chetty5 seem to negative the liability of the son under such such circumstances, while Natasayyan v. Ponnusami,6 Kanemar v. Krishna,7 and Erasala Chetty v. Addepally Chetty,8 apparently support his liability for such debts. These cases, however, may possibly be reconciled if we recognise the distinction between a criminal offence and a breach of civil duty. In the first three cases, the father was guilty of criminal misappropriation as regards sums of money for which he was accountable; while in the second set of three cases, the father merely failed to account for the money received by him, and his failure to do so constituted nothing more than a breach of civil duty. The distinction is real though refined, and was recognised in Medai Tirumalayappa Mudaliar v. Veerabadra.9 In this case it was ruled that if a debt was incurred by a person as an agent, his son was liable to pay the debt and the liability of the son was not affected by the circumstance that the father subsequently misappropriated the sum or made himself criminally liable. Consequently, the proper position is that, where the taking of the money itself is not a criminal offence a subsequent misappropriation by the father cannot absolve the son from his liability to satisfy the debt; but the position is different if the money has been taken by the father and misappropriated under circumstances which render the taking itself a criminal offence.10 The other important case is Toshanpal Singh v. District Judge of Agra,11 where the father was a secretary of a school committee. He was in charge of a fund deposited with a bank. He was authorised to draw upon it only for specific purpose connected with the school. After his death the committee sued his sons to recover from them out of property left to them by their father, or out of the property of their joint Hindu family, an alleged deficiency in the fund. The deficiency amounted to Rs. 42,993/- and according to the father‟s own admission Rs. 30,016/-, of it was due to drawings by him for purposes other than those authorised. Hence, the court held that the drawings in question were criminal breaches of trust within Section 405 of the Indian Penal Code 1860 and that under Hindu law the sons to that extent were not liable. A perusal of the ancient texts which exempt the son to pay certain type of debts and the decisions thereon indicate that the judiciary has gradually developed the law with great 1 2 3 4 5 6 7 8 9 10 11
Mitakshara, II, 48. Vide Bhattacharya, HINDU LAW, 2 nd ed., pp. 348, 351-352. (1912) ILR 39 Cal 802. (1884) ILR 6 All 234. (1897) ILR 24 Cal 672. (1903) ILR 27 Mad 71. (1893) ILR 16 Mad 99. (1908) ILR 31 Mad 161. (1908) ILR 31 Mad 472. (1909) 19 Mad LT 759. Ibid, pp. 871-872. (1934) ILR 56 All 548. 9
caution. While toll taxes and sulka are mentioned among the categories of the taxes which a son is not liable to pay, the judiciary had always been aware of the taxes which in the modern time are considered necessary and legal, the arrears of which a son is liable to pay. The interpretation of the text containing the term avyavaharika has been made by the Supreme Court in S.M. Jakati v. S.M. Borkar,1 in the modern context. This term has been translated as being that which is not (i) lawful just; or (ii) what is not admissible under the law; or (iii) normal conditions.2 Colebrooke translated it as “a debt for a cause repugnant to good morals”. There is another track of decisions wherein it has been translated as meaning “a debt which is not supported as valid by legal arguments.” In Pannalal v. Mt. Naraini,3 the Supreme Court observed that there is no discrepancy of judicial opinion as to the pious duty of Hindu sons, and approved the dictum of Suleman A.C.J. in Bankeylal v. Durga Prasad.4 In Toshanpal Singh v. District Judge of Agra5 it was held that Hindu law texts based the liability of the son on the pious obligation principle itself and not on the father‟s power to sell the son‟s share.6 The Supreme Court attached great importance to the payment of debts which is regarded by Dharmasastra as a very heinous sin if remained unpaid.7 The pious obligation theory received the approval of the Supreme Court in Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh.8 There are quite a good number of judicial dicta regarding exemption from payment of immoral or illegal and avyavaharika debts. A son is not liable to pay such debts because the transactions have been of an irreligious nature. Antecedent Debt and Liability of Son’s Estate The son‟s liability to pay the antecedent debt of his father has been discussed by the Privy Council in Brij Narain v. Mangal Prasad9 in which the facts were that on the 4th of March 1908, Sita Ram granted a mortgage for Rs. 11,000 in favour of Raja Narain Brij Rai and Jagdish Narain Rai. The mortgage was secured on ancestral and joint property of which Sita Ram was at that time manager, the other members of the joint family being his two sons, minors. In 1912 the mortgagees brought a suit on the mortgage and obtained a decree ex parte. In 1913 the present suit was raised by the mother on behalf of her two minor sons (the elder has since become major) to have it declared that the mortgage was not binding on them and that the decree granted was, so far as they were concerned, null and void. The mortgage in suit bears to have been executed in order to pay off two prior mortgages on the same property of date 12 December 1905, and 19 June 1907, respectively.10 The Privy Council examined the long line of cases and laid down the following propositions of law on the basis of the existing authorities : (i) The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity.
1 2 3 4 5 6 7 8 9 10
AIR 1959 SC 282 : (1959) SCR 1384. Ibid, p. 286. 1952 SCR 544 : AIR 1952 SC 170, 174-176. AIR 1931 All 512 (FB). 61 IA 350. Ibid, p. 519. Id. p. 527. 1954 SCR 177, 183-184; AIR 1952 SC 487, 90. (1923) ILR 46 All 95. (1923) ILR 46 All 95, 98. 10
(ii) If he is the father and the reversionaries are the sons he may, be incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt. (iii) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge and antecedent debt, it would not bind the estate. (iv) Antecedent debt means antecedent in fact as well as in time, that is to say, the debt must be truly independent and not part of the transaction impeached. (v) There is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead.1 Pious Obligation Doctrine and the Hindu Succession Act 1956 The passing of the Hindu Succession Act 1956 has very far reaching impact on the nature and constitution of the joint Hindu family. Though the Act does not propose to make changes in the joint family, its provisions have introduced radical changes in the nature of the Hindu joint family governed by the Mitakshara law. Muttayan Chetti and Nanomi Babuasin have limited the liability of the son to the extent of joint estate of the father and the son. It is the property in which the son acquires right of ownership by birth. In Nanomi Babuasin the Judicial Committee said that the pious obligation is destructive of birthright of the son in ancestral property. The liability to pay the debt is not destructive of the right of ownership, if it would have been destructive the liability would have existed even in the event of the debt being tainted with immorality or illegality. It is based also on the equitable principle that if one takes benefit under a rule the burden has also to be accepted under the rule. There is little or no difference between the piousness of the doctrine and its equitable aspect. The Act has an impact on the joint family property which has very far reaching implications. The rule of survivorship and doctrine of ownership by birth have been affected by provisions of the Act mainly by Sections 6, 8 and 30 which have made serious inroads in the two doctrines. These two doctrines are the basis of the doctrine of pious obligation. As observed by the Judicial Committee : Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have, for some time, established the principle that the sons cannot set up their rights against their father‟s alienation for an antecedent debt, or against his creditor‟s remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate, their Lordships think that there is now no conflict of authority.2 The birthright of the son in ancestral property which developed absolutely and uninterruptedly on the son by survivorship is curtailed, rather drastically curtailed, by virtue of the provisions of Section 6 of the Hindu Succession Act 1956.3 Hindu Succession Act abolishes Avyavaharika Debt Concept What is important in the light of the impact of Section 6 of the Hindu Succession Act 1956 is that the interest of the coparcener dying intestate shall devolve not by survivorship but under the provisions of the Act. The joint family stands partitioned immediately before the death of the coparcener. Now in the case of a father who dies intestate and indebted his interest which shall devolve by succession on the heirs enumerated in Class-I of the Schedule shall be 1 (1923) ILR 46 All 95, 104. 2 Manomi Babuasin v. Modun Mohun (1885) 13 IA 1, 17-18. 3 Section 6, the Hindu Succession Act 1956 deals with devolution of interest in coparcenary property. 11
liable for the payment of the debt of the deceased and the liability of the heirs will be absolute including that of the son with respect of the share which he gets as an heir of Class-I of the Schedule. Neither the son nor any other heir can claim exemption from the liability to pay the debt of the deceased on the ground that the debt was immoral, illegal, or avyavaharika. Thus the pious obligation being based on religious sanction has become converted into legal obligation. The nature of the joint estate stands destroyed. The approach of judiciary in interpreting the nature of property inherited under the scheme of Section 8 of the Hindu Succession Act 1956 has been destructive of pious obligation doctrine. However, the construction of the principles underlying the scheme is both logical and rational. The Madras High Court decision delivered by its full bench is perfectly in line with the Dayabhaga doctrine where it was held that property inherited by son from his divided father even assuming that it was ancestral property in the hands of the father would be his separate and individual property and not of the joint family consisting of his wife, sons and daughters.1 This decision of the Madras High Court has a far reaching consequence; it obliterates the very concept of ancestral property in the Mitakshara school of Hindu law which is the foundation of judicially modified doctrine of pious obligation of the son to pay his father‟s debt. Again in Shrivallabi v. Modani,2 the Madhya Pradesh High Court while interpreting the principles underlying Section 8 of the Hindu Succession Act 1956 observed, “it would be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu” and pointed out that in constructing the section the law in force earlier should be ignored and the court should confine itself to the language used in the new codifying Act.3 This approach of the Madhya Pradesh High Court cannot be supportive of pious obligation doctrine since it has the effect of converting the ancestral property into self-acquired property. This has been the consistent trend in other High Courts also. In Commissioner of Income -Tax v. Mukund Girji,4 the Andhra Pradesh High Court held that the properties which devolved upon a son in 1958, by inheritance, after the Act came into force, were properties of the son in his individual capacity and not of the joint family of the son. His sons have no right by birth in such properties and cannot therefore, claim any share or sue for partition of such properties.5 On perusal of the provisions of the Hindu Succession Act 1956, the High Court observed : A perusal of the Hindu Succession Act 1956 would reveal that Parliament wanted to make a clean break from the old Hindu law in certain respects consistent with modern and egalitarian concepts. For the sake of removal of any doubts, therefore, Section 4 (1) (a) declared that, in so far as a matter is provided for by the Act, one should look only to the Act and not to the pre-existing Hindu law. It would, therefore, not be consistent with the spirit and object of the enactment to strain the provisions of the Act to accord with the prior notions and concepts of Hindu law. That such a course is not possible is made clear by the inclusion of females in class I of the Schedule. To hold today that the property which devolves upon a Hindu under Section 8 of the Act would be Hindu Undivided Family property in 1 Additional Commissioner of Income-Tax v. P.L.Karuppan Chettiar AIR 1979 Mad 1; vide Sunderlal T. Desai (rev.), D. F. Mulla, HINDU LAW, 16th ed. 1990, p. 784. 2 (1983) 138 ITR 637 (MP). 3 Sunderlal T. Desai (rev.), D. F. Mulla, HINDU LAW, 16th ed. 1990, p.76. 4 (1983) 144 ITR 18 (AP). 5 Ibid, pp. 784-785. 12
his hands vis-à-vis his own sons would amount to creating two classes among the heirs mentioned in Class-I, viz., the male heirs in whose hands it would be joint family property vis-à-vis their sons; and female heirs with respect to whom no such concept can be applied or contemplated. The intention to depart from the pre-existing Hindu law is again made clear by Section 19 which states that two or more heirs succeeding together to the property of an intestate shall take the property as tenants-in-common and not as joint tenants. According to Hindu law, as it obtained prior to the Hindu Succession Act 1956 two or more sons succeeding to their father‟s property took it as joint tenants-in-common. The Act has, however, chosen to provide expressly that they shall take as tenants-incommon. Accordingly, properties which devolve upon an heir mentioned in Class-I of the Schedule under Section 8 constitute his absolute properties, and his sons have no right by birth in such properties and cannot, therefore, claim any share or sue for partition of such properties.1 This decision of the Andhra Pradesh High Court like the decisions of the Madras High Court2 and Madhya Pradesh High Court3 has a destructive impact on ancestral property and makes the situation much more like the proprietary jurisprudence under the Dayabhaga school. The seal of finality has been placed on this approach by the Supreme Court in Commissioner of Wealth-Tax, Kanpur v. Chandersen.4 Now, the share which a son obtains in the capacity as an heir of Class-I of the Schedule will become his separate property in which the son‟s son will not take an interest by birth.5 Thus, the basis of the liability of the son by virtue of the right of ownership by birth in ancestral property has been eroded; consequently the very basis of the pious obligation to pay the father‟s debt has become anfractuous. Naturally, the very basis of the pious obligation has been destroyed. The question as to the nature of the property in the hands of the son has been finally decided by the apex court in Chandersen.6 In this case the Supreme Court has very elaborately discussed and examined the views of the Allahabad High Court,7 Madras High Court,8 Madhya Madhya Pradesh High Court9 and Andhra Pradesh High Court10 on the one hand and that of the the Gujarat High Court11 on the other hand. In this case the important question involved was whether a son as heir of Class-I of the Schedule inherits the property of his father who dies intestate in his individual capacity or as Karta of his own undivided family in which his son shall take interest by birth. In Chandersen, the view of the Gujarat High Court was overruled and the views of the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court were approved. In brief the facts were: There was a partition of 1 2 3 4 5 6 7 8 9 10 11
(1983) 144 ITR 18 (AP). Additional Commissioner of Income-Tax AIR 1979 Mad 1. Commissioner of Income-Tax v. Mukundgirji (1983) 138 ITR 673 (MP). AIR 1986 SC 1753 : (1986) 3 SCC 567. (1983) 144 ITR 18 (AP). AIR 1986 SC 1753: (1986) 3 SCC 567. Commissioner of Income-Tax, U.P. v. Ram Rakshpal, Ashok Kumar (1968) 67 ITR 164(All). Additional commissioner of Income-Tax AIR 1979 Mad 1. Shavallabhdas Modani v. Commr. of Income-Tax MP (1982) 138 ITR 673. Commr. of Income Tax (1983) 144 ITR 18 (AP). Commr. of Income-Tax, Gujarat-I v. Babubhai Mansukhbhai (1977) 108 ITR 417 (Guj). 13
joint family business between the father and his only son. Thereafter, they continued the business in the name of the partnership firm. The son formed a joint family with his own sons. The father died and amount standing to the credit of the deceased father in the account of the firm devolved on his son. The wealth tax authorities while assessing the wealth tax in respect of the family of the son, i.e., the assessee, included the amount in computing wealth. Held, that the son inherited the property as an individual and not as Karta of his own family. Hence, it could not be included in computing the assessee‟s wealth.1 The Supreme Court observed : In view of the Preamble to the Act, i.e., to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class-I and only includes son and does not include son‟s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as Karta of his own undivided family. If the Gujarat High Court‟s view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth, in the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the preexisting Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act 1956 would be HUF property in his hand vis-à-vis his own son, that would amount to creating two classes among the heirs mentioned in Class-I, the male heirs in whose hands it will be joint Hindu family property and vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class-I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc.2 This interpretation of the Supreme Court of the scheme of Sections 8 and 6 of the Act is both logical with the philosophy of the Hindu Succession Act and also in conformity with the social and legal demands of the society and law. Why a person should acquire property of another person without being obliged to pay his debts and seek exemption on the ground of such other person‟s borrowing for illegal and immoral ends. It is unsocial and illegal. Again, why a creditor should lose his legal right to recover his debt merely because the debtor was involved in illegal and immoral acts? The approach of the Supreme Court is also in conformity with the doctrine of equality enshrined in the Constitution. Since in the Dayabhaga school and in society in general no debtor can escape the liability from paying off his debts on the ground that the debt was incurred for illegal or immoral purposes, the Supreme Court decision is sound on social and legal grounds. The son cannot use the defence of illegal and immoral debts of his father to protect the property inherited under the Act. Impact of Section 16 of the Hindu Marriage Act 1955 on Pious Obligation The provision of Section 16 of the Hindu Marriage Act 1955 makes it a law which is not based on logic but on social requirement. The illegitimacy of a child is a social stigma on the child and on the society itself. The Hindu Marriage Act 1955 by this section has tried to wipe out the stigma of illegitimacy on the child born of a void or voidable marriage. That is 1 AIR 1986 SC 1753 : (1986) 3 SCC 567. 2 (1986) 3 SCC 567 : AIR 1986 SC 1753, 1760. 14
undoubtedly a progressive step but at the same time the child is only partially given the status of a legitimate child and if this legitimate child born of a void or voidable marriage happens to be a son then he will not be liable to pay the debt of his father and his grandfather because he does not acquire any right in the property of his father and his grandfather by birth as that of a son born to a valid marriage of his parents. Therefore, the pious obligation in this case cannot be enforced. The changes mentioned above by the two Acts have affected the very basis of the pious obligation doctrine. Therefore, now, there is nothing left in this doctrine and the old adherence to this doctrine may be abandoned as sub-section (4) of Section 6 of the Hindu Succession (Amendment) Act 2005 has abolished the doctrine of pious obligation finally. Inequitability of Pious Obligation Doctrine What is left of the pious obligation doctrine after the amendments in Hindu law is the inequitability of the doctrine of pious obligation of the son to pay his father‟s debt, namely, even now the father during his lifetime can alienate the joint family property of himself and of his son for the payment of his personal debts incurred by him which were neither necessary nor beneficial for the family. This is the residue, which is neither justifiable nor reasonable. However, it is the logical and equitable consequence of the birthright of the son in the joint estate. Social-Legal Impact and Conclusions As examined the socio-legal impact of the pious obligation doctrine is not consistent with the modern jurisprudencial trends in the field of proprietary jurisprudence. The Hindu law as stands amended by the various Acts1 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. ----------------------
1 The Hindu Marriage Act 1955, the Hindu Succession Act 1956 (2005), the Hindu Minority and Guardianship Act 1956 and the Hindu Adoptions and Maintenance Act 1956. 15
