Section: B

Category: Article

Paper Code: RA-TB-20

Page Number: 356 - 363

Date of Publication: February 10, 2021

Citation: Titikhya Barkataki, The Doctrine of Pious Obligation and Its Relevance under the Hindu Law in the Present Time, 1, AIJACLA, 356, 356-363, (2021).

Details Of Author(s):

Titikhya Barkataki, LL.M, 1st Semester, Gauhati University

ABSTRACT Pious Obligation is a kind of religious or devotional obligation on the part of the son, son’s son, or great-grandson to pay back his father’s, grandfather’s, or great grandfather’s debts. But when it is being talked about debt, the male descendants are liable to pay only for their ancestor’s legal debts i.e. vyavaharika debts. The paper shall deal with the doctrine of Pious obligation and its applicability that was in existence pre 2005 i.e., it is not in existence post amendment to the Hindu Succession Act in 2005, and also analyze case laws and if the doctrine applies to daughters. KEYWORDS Avyavaharika debt, Liability of daughters, Pious Obligation, andVyavaharika debt

INTRODUCTION Pious obligation in a general understanding is a son’s liability to pay off his father’s debts. Here when talking about the debt it only refers to vyavaharika debt i.e., debts conducted for legal purposes only which excludes avyavaharika debts i.e. debts taken for immoral and unethical purposes. The Doctrine of Pious Obligation is that doctrine under which sons are made liable to discharge father’s debts. It is solely religious. But the doctrine inevitably postulates that the debts of the father must be vyavaharika. If the debts are not vyavaharika, the doctrine of pious obligation shall not apply to the sons. Salvation of souls is attained by paying pious obligation by the descendants, who pay the debts. The scope of this paper is limited to analyze and understand the Doctrine of Pious Obligation and its applicability. The paper also aims to see a comparison on the doctrine which was prevalent pre-2005 and post 2005 after the Hindu Succession Amendment in 2005. It also aims to understand the doctrine with relevant case laws.

HISTORICAL BACKGROUND Pious' means religious and sacred. ‘Pious obligation’ means a duty of a Hindu male essentially, due to the deep devotion that he puts into his religion. Hindu law states that ‘He who having received a sum lent or the like does not repay it to the owner will be born hereafter in his creditors house a slave, a servant or a woman or a quadruped’. As per Hindu scriptures, it is the holy, pious, and most importantly a pious duty of a son to pay off or discharge his father's debts. This religious obligation is attached to a son of a Hindu as well as son’s son and son’s son’s son, on the ground that all the three are coparceners with others by their birth. It is being believed that non-payment of debts is a sin(paap) and any person, who died leaving the debts behind, cannot go to heaven(Swarg). The 'Putra' i.e., the son, grandson, and great-grandson by paying off such debts, reliefs his parted ancestor from the debt and enables him to reach the heaven and thus enables him to attain Moksha. This duty or obligation of a son to repay the debts of the deceased ancestor is based on a special doctrine, known as "The Doctrine of Pious Obligation" However; this obligation applies only to non-avyavaharika debts.[1] Focusing on what history has to say about the doctrine of Pious Obligation, it is to be seen what Hindu religious books and Hindu Jurists has to say about it. 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] Again 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 his perpetual fire belongs to his creditors”.[3] In another saying of Narada, “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.”[4] 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. As said by Brihaspati, “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[5] According to Indian legal literature or most practices seen in the earlier era, a 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 obligation of the son is based on the authority of the religion, therefore, as a logical deduction, it follows that the son is not to pay the debt of his father which are irreligious, the reasons this are: i) First, religious authorities are absolving the son from the liability to pay debts of the father which are irreligious in the same way as there are religious authorities which impose liability on sons to pay off the debt of their fathers. ii) Second, to make the son liable to pay irreligious debt would amount to the contribution and augmentation of irreligious acts of the father.[6] When it is said that repaying off the father’s debts is a pious obligation of a son and his descendants, the son is liable to pay the principal amount as well as interest to that amount, whereas the grandson is required only to pay the principal amount and the great-grandson was required to pay only to the extent he had the joint family property in his hands. He was not personally liable though the son and grandson were personally liable.[7] The Privy Council, in the case of Sat Narain v Rai Bahadur Sri Kishan Das[8]; observed that the doctrine of pious obligation was not based on the necessity for the protection of third parties, but was based on the pious obligation of the sons to pay off father’s debts. Originally the emphasis on the payments of debts is so strong that according to the dictates of the Dharmashastra, if a man has to pay both his and his father’s debts, he must pay the latter first, and as amongst the father’s and grandfather’s, the grandfather’s debts should be paid first.[9]

TYPES OD DEBTS AND LIABILITY OF SONS When it is being discussed about the doctrine of pious obligation i.e., son’s liability to pay off his descendants’ debts it is to be noted that there are two types of Debts; Vyavaharika and Avyavaharika. A son’s pious obligation is only to pay his ancestors Vyavaharika debts i.e., debts taken for legal purposes. Avyavaharika debts are not binding upon sons. Now, when taking into consideration Vyavaharika Debts, it is a just debt for which a father is liable to alienate family lands, as opposed to his sons, which means debts which are due, but are not immoral, not illegal, or are not opposed to law and public policy. The debt that is not contracted as an act of recklessness extravagance or to seek illicit pleasure, such debt shall be binding upon sons. Sons are liable to pay debts such as telephone bills, liability of father’s mesne profits, or torts committed by him concerning profits. When debts were contracted for defending himself in a lawsuit, debts contracted for conducting business etc such debts shall be binding upon sons.[10] Coming to Avyavaharika Debts a son is not liable to pay avyavaharika debts of his father, grandfather, or great grandfather. Debts contracted for a purpose that could not be justified following religious tenets or a person’s dharma could not extend the obligation on the son or male descendants for its repayment.[11] Payments of debts that were avyavaharika were not the spiritual debts or religious duty of sons. As said by Narada, “A father must no pay the debts of 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 bailment”.[12] Now, when it is talked about Pious Obligation, it is the liability of Sons, Grandsons, and Great Grandsons of the deceased Hindu male to pay off his vyavaharika debts so that his soul can rest in peace in heaven. A son, son’s son (grandson), and a son’s son’s son (great-grandson) is responsible to pay off their father’s, father’s father, and father’s father’s father debts because they are coparceners to the deceased, as they are included in the fourth generation counting from the deceased. The liability on them is not personal and the debts are to be paid from their share in ancestral property depending upon who is liable to repay the debts at that time. But it is to be noted that there are instances when a son is liable to pay and not liable to pay even in the case of vyavaharika debts. Ø A son is liable to pay for his father’s debts, if the father contracted the debt when coparcenary was intact Ø A son is liable to pay if the debt contracted was before partition but repaying it off rose after partition Ø A son is not liable to pay if the debt was contracted by the father after the partition of the joint family property, as the son would now have separated and taken his share which now has become his personal property, and thereby not liable to pay off his father’s debts.

AVYAVAHARIKA DEBT AND BURDEN OF PROOF Initially, it so happened that sons could easily escape by simply proving that it was avyavaharika debt. But, as a result, it turned out to be a loss for the creditors who lend the money. So later the courts came to the point that it is the burden on the sons to prove that the debts taken from the creditor is taken for as an avyavaharika debt; to protect the rights of the creditor such step was taken.

JUDICIAL INTERPRETATION ON DOCTRINE OF PIOUS OBLIGATION When discussing the Doctrine of Pious Obligation, it is essential to discuss case laws in relevance to it.

Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni; Supreme Court in this case observed that, “Whether the 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 benefit, the sons are liable to pay the debts provided they are not incurred for illegal or immoral purposes.”[13]

Apentala Raghavaiah v. Boggawarapu Peda Ammayya In this case, the plaintiff's father Yellamanda did Tobacco business with the respondent and thereby became indebted to him, and because of which the father sold the property to the defendant for paying off the debts. The respondent contested the petition by filing his counter contending that the Tobacco business was done by the father of the petitioner for the benefit of the joint family and the debt contracted by him is not 'Avyavaharika debt' that the petitioner is liable to discharge such debt incurred by his father in connection with such business.[14]

Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal, The apex court enunciated the principle: "the sons who challenge the alienations made by the father have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so tainted." The learned judge points out that the doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions. That under the law as it now stands, the obligation of the sons is not a personal obligation existing irrespective of the receipt of any assets, and that it is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debts have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparceners property can always be made liable for such debts.”[15]

Suraj BunsiKoer (Mother and guardian of the infant sons) v. Proshad Singh Here, in the case, a man namely AditSahai made debt and contracted himself to pay Rs 13,000 to Bolaki Choudhury, (from whom he took his debt). He pledged his whole property and his shares in a mouzah. On failing to pay back the debt and after his death, the onus came to his minor sons, who in this case are being represented by their mother. In the meantime, Bolaki auctioned the property to a 3rd party. The mother of the minor sons namely Suraj Bansi Koer filed a suit on behalf of the minor sons stating they are coparceners to their late father’s property and the alienation of the property is not fair. The subordinate court accepted it and gave the decision in the plaintiff’s favor. The court said that there was no justifying necessity for taking Rs 13000 debt. It was also observed that Bolaki failed to enquire as to why such debt is contracted even after knowing Adit Sahai well and the life he lived. It was held that the debt taken was avyavaharika debt and sons have no obligation to pay it back. But since the purchase i.e., the 3rd party is at no fault, so AditSahai’s share in the joint family property is to be given away to them and not the whole. But it is to be noted that after the commencement of the Hindu Succession Act, 2005 and amendment to section 6 subsection 4[16], no court shall recognize any right of any person to recover any kind of debts contracted by their father, grandfather, or great grandfather on the grounds of Pious Obligation. But if such debt is contracted before the 2005 amendment then the sons and the descendants shall be liable to pay as per Section 6, subsection 4 clause b of the Hindu Succession Amendment Act, 2005.

PIOUS OBLIGATION OF DAUGHTERS: A MODERN PERSPECTIVE Post the feminist movements have questioned ‘male-stream’ thinking in ways that have struck at discriminatory status quo in politics, society, and all the other major fields. No doubt after the commencement of the Hindu Succession Amendment Act, 2005, daughters have also become coparceners in their father’s property. As given in section 6 –“Devolution of interest in coparcenary property. — (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, — (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son”[17] Thus, as specified in section 6 subsection 1 and clause a, b, and c it can be essentially concluded that daughters being coparceners to their father’s property like the sons, has same rights as that of a son and also same liabilities like that of a son respectively. Thus, if the doctrine of Pious Obligation would have been in existence in the present time, then daughters too would have been held liable to pay off their father’s vyavaharika debts. But since, post-2005 an amendment has been made and as per section 4, the pious obligation has ceased to exist (although with exceptions as given in clause a and b of the same) daughters are not liable to pay off father’s debt be it of any kind.

CONCLUSION The doctrine of pious obligation under which sons, son’s son, and son’s son’s son are held liable to pay off their father's debts is based solely on religious norms and practices going on for ages; the doctrine inevitably preaches that the father's debts must be vyavaharikai.e., legal and not immoral. If the debts are not vyavaharika or are avyavaharika the doctrine of pious obligation cannot be taken into consideration. In case of debts contracted by the father, for his benefit, at a point of time when he is a coparcener to the joint family property along with his sons, the sons are liable to pay such debts, unless the debts were incurred for immoral or illegal purposes. This liability of the sons, which had its origin in an obligation, has since metamorphosed into one of legal liability but this does not, however, extend to debts tainted with immorality. The liability is not personal in the sense that the creditor of the father cannot proceed either against the person or separate Property of the sons, but such liability is restricted to the interest of the sons in the joint family property. If it is found out that the debt is contracted by the father after partition, the son cannot be made liable. If, however, the debt is a pre-partition debt, the share of the sons would be liable even after partition if the debts of the father are not immoral or illegal and the partition arrangement does not make any provision for the repayment of such debts. Again, it is to be noted that post-2005 i.e., after the amendment to the Hindu Succession Act, daughters are coparceners to their father’s property as well, having the same rights and liabilities as that of a son. But the doctrine of Pious Obligation has ceased to exist post-2005 amendment and thus there is no obligation on the part of sons and daughters to pay off their ancestor’s debts.

[1] Doctrine of Pious Obligation, SRD Law Notes, (Oct. 2020, 18, 07:15 PM), [2] Vijender Kumar, Basis and Nature of Pious Obligation of Son to Pay Father's Debt Vis-à-vis Statutory Modifications in Hindu Law, (Oct. 2020, 19, 09:00 AM), [3] Ibid. [4] Dr Poonam Pradhan Saxena, Family Law Lectures Family Law II, 195, (3rd edn.2013). [5] Supra note 2. [6] Supra note 2. [7] Dr Paras Diwan, Modern Hindu Law, 334, (23rd edn.. 2016). [8] Sat Narain v. Rai Bahadur Sri Kishan Das. [9] Pr. N. Sm. Chockalingam v. Official Assigne of Madrass. [10] Dr Poonam Pradhan Saxena, Family Law Lectures Family Law II, 198, (3rd edn. 2013). [11] Ibid. [12] Ibid. [13] Family law son's pious obligation, Legal Service India, (Oct. 2020, 18, 08:45 AM), [14] Ibid. [15] Ibid. [16]After the commencement of the Hindu Succession (Amendment) Act, 2005 -no court shall recognise any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect— (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be, or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. [17] Hindu Succession Act 1956.

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Section: D Category: Case Commentary Paper Code: CC-NC-01 Page Number: 458 - 460 Date of Publication: February 10, 2021 Citation: Namrata Chakrabarty, Vineeta Sharma v. Rakesh Sharma, 1, AIJACLA, 458

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