This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. Hindu Undivided Family is a religious yet legal entity. And thus, sons are expected to pay off the debts incurred by their father during his lifetime to ensure him an afterlife without any sins named under his name. The Doctrine of Pious Obligation and Antecedent Debts are concepts regarding the same, and explained in the article.

Doctrine of Pious Obligation

Joint families under Hindu Law are not limited to succession and a coparcenary system. The succeeding generation is also expected of some obligations, one of them being from the sons for the repayment of debts incurred by their father during his lifetime. Pious meaning religious, and under the doctrine of pious obligation, an expectation is casted on a son to repay his father’s loan and debts from the part of the ancestral property he holds under a religious duty towards his religion. However, this duty ceases to exist when the debts are avyavaharika, i.e. incurred for immoral or illegal purposes. As laid down by the Hon’ble Supreme Court in the case of ‘Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh’[1], the doctrine finds its origin in the historical smiritis. It was held that non-payment of debts was a positive sin and thus to save the father from the consequences of such a sin in the afterlife, it was a son’s duty to pay off the debts. However, under law, the position has been modified to an extent where a son is liable to pay off the debts only confining to the interest in the coparcenary property he holds. He cannot be otherwise made personally liable. Also, unlike the previous distribution where the son was liable to pay off the whole debt and the grandson and great-grandson only the principal amount, now all three generations are equally obligated to pay off the principal amount and interests.

Now moving on to the other aspect of this doctrine, what are the Avyavaharika debts. In the case of ‘S.M. Jakati and Ors. vs. S.M. Borkar and Ors.’[2] the Hon’ble Supreme Court the term ‘avyavaharika debt’ was explained. The most plausible one it found was the one translated by Colebrook as “a debt for a cause repugnant to good morals”. Under the said doctrine, a son is off the liability to pay-off the debts if they are taken for such ‘avyavaharika’ purposes. These purposes may be for keeping a concubine, or gambling, or bribing or any other immoral activity.

The next question is regarding the legal position of the said doctrine. It was laid down in the case of ‘Muttayan Chettiar vs. Sangili Vira Pandia Chinnatambiar’[3] to some extent. The court declared the doctrine as not a mere religious one, but a legal one too. It was argued that such legal duty arises as a corollary to the right of a son in the ancestral property. The father’s superior interest in the property over the son converts the pious duty into a legal one onto the son who succeeds to such property. Also, it is anyways known to all that when the debts are taken by the father, in his capacity of being a Karta and for the family matters, the sons inheriting become bound to pay off such debt[4]. It can thus be concluded that such discharges of debts by the sons are only limited to the interest they bear in the ancestral property and they can never be held personally liable by a creditor for the repayment of debts. The limitation to the doctrine, however, is its requirement of only the male heirs to discharge the debts of a father. Wives or daughters, even having a right in the property shares in contemporary times, are not liable to pay off the debts of the father or husband under the doctrine. Thus in the case of ‘Keshav Nandan Sahay vs. Bank of Bihar’[5], when the Bank filed a civil suit against the sons and wife of the deceased under doctrine of pious obligation to pay off his loan, the Patna High Court held only the sons liable for it. It stated that since female sharers were not a part of the doctrine, they could not be made to pay for repayment even though they inherited a share from the ancestral property. Thus we may say, this is one limit to the doctrine.

Doctrine of Antecedent Debts

A Karta cannot sell or mortgage the joint property unless there is a legal necessity, or for the benefit of the estate, or there are religious obligations. Antecedent Debts are one such exception coming under the head of legal necessity. Antecedent Debts refers to the legal obligation prior to the time in question about paying off one. Even though the antecedent indicates something in prior to the time, the Hon’ble Supreme Court through various judgments have bifurcated an “Antecedent debt” into one in fact and the one in time. Also, for the doctrine to be applied under law, the debts shall be incurred in connection with a trade initiated by the father. Even though the sons under the Doctrine of Pious Obligation are expected to pay off the debts from their interest of the joint family property, another way for paying off such debt is the father using the ancestral property directly. In the case of ‘S. Swaminathan and Ors. vs. R. Jayalakshmi and Ors.’[6] , the Madras High Court limited this privilege only to the father, and the grandfather or the great-grandson qua the son or grandson only. However, such validity of alienation of joint family property lies on the pious duty laid on the sons to repay the debts of the father which are not taken for immoral purposes. In another case of ‘Prasad and others vs. V. Govindaswami Mudaliar and others’[7], the Hon’ble Supreme Court laid down specifically that in cases a father disposes off any debt from the joint family property, he is entitled to do so and the same is binding over the sons, provided two conditions:

“a. the debt was antecedent to the alienation and

b. It was not incurred for an immoral purpose.”

Let’s take an example of a situation where the doctrine will be applicable and where not. Suppose the father took a loan of Rs. 10,000, out of which he got the first three on the mortgage of the family property and the rest seven for later consideration. In such a case, only the earlier amount will be deducted from the family property if any, not the latter. It is important to note that the debt amount must be independent of any transaction impeached afterwards. Thus the doctrine empowers the father to alienate the joint family property for paying off debts which he took for moral purposes before such alienation in time or in fact.

Conclusion

The two doctrines indicate the religious and yet in some cases the legal obligation of the sons to pay off and settle the debts for moral purposes taken by their father during his lifetime. In regard to this, the sons are only liable to the extent that they share an interest in the joint family property, and thus are not personally liable for such repayments. However, the non-inclusion of women heirs, widows or daughters from this liability leads to a major gap in the gender-neutral system of families in Hindu law, and still needs to be rectified considering that they now share equal rights in the family property like those of male heirs.

[1] Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh, AIR 1953 SC 487.

[2] S.M. Jakati and Ors. vs. S.M. Borkar and Ors., AIR 1959 SC 282.

[3] Muttayan Chettiar vs. Sangili Vira Pandia Chinnatambiar, AIR 1906 Mad 1.

[4] Venkatesh Dhonddev Deshpande vs. Son, Kusum dattatraya Kulkarini, AIR 1978 SC 1791.

[5] Keshav Nandan Sahay vs. Bank of Bihar, AIR 1977 Pat 185.

[6] S. Swaminathan and Ors. vs. R. Jayalakshmi and Ors., MANU/TN/9641/2019.

[7] Prasad and others vs. V. Govindaswami Mudaliar and others, AIR 1982 SC 84.

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