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Doctrine of Pious Obligation in Hindu Law

The doctrine of pious obligation states that a son is liable to pay the debts of his father or his grandfather or his great grandfather after their death unless the debt incurred was for an immoral or illegal purpose.[1] Post the Hindu Succession (Amendment) Act, 2005, the pious obligation of the son has been abolished. Section 6(4) of the Hindu Succession (Amendment) Act, 2005 in this regard states that-

“(4) After commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great- grandson for the recovery of any debt due form 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.”

However, if the debt is incurred before 2005, the son, grandson and the great-grandson will be liable under the doctrine of pious obligation.[2] Thus, the amendment is prospective in nature. The aim of this article is to discuss the scope of doctrine of pious obligation in India.

Origin of Doctrine Of Pious Obligation

The doctrine of pious obligation is based on piety and religion. Hindu law states that when a Hindu dies and his soul is indebted, he may have to face evil consequences. Therefore, the son of such a person has the responsibility to free the soul of his father from indebtness. In this regard, Brihaspati 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 creditor’s house a slave, a servant, a woman or a quadruped.”

Thus, the sole object of the doctrine of Pious Obligation is to confer the spiritual benefit upon the deceased and not for the benefit of the creditor.[3]

In the case of Anthonyswamy v. M.R. Chinnaswami[4] it was held that the liability of the son is not a gratuitous one but is a counter balance to his right in the property by the virtue of his birth in the family.

Scope Of Liability in Doctrine Of Pious Obligation

The extent of liability to pay the sum owed by the father or the grandfather or the great grandfather is limited to the principal and not the interest on the same.[5] Before the British Era, the son and the grandson had a personal liability to pay the debt whereas the liability of the great-grandson was limited to his share in the joint family estate. During the British Era, the liability of the son, the grandson and the great-grandson was limited to his share in the joint family estate. Thus, even if the son is in possession of some personal property, he is not liable to repay the debts of the father.[6]

Effect Of Partition Of Joint Family Property

It was held in the case of Ram Saran v. Bhagwan[7] that the liability of the son does not arise post the partition of the property. However, for pre-partition debt, the liability continues even after the partition as long as the debts were not immoral or for an illegal purpose.[8] In the case of V.D. Deshpande v. S.K.D. Kulkarni[9] the father borrowed loan from the government for the purpose of improving joint family lands. There was a partition amongst members of the joint family and no provision was made for the repayment of the debt. It was held at the joint family property in the hands of the sons would remain liable for the payment of the loan. Even though the father was a Karta and the loan was taken for the benefit of the entire joint family, only the sons were held liable under the doctrine of pious obligation.

Effect Of Conversion Of Father

In the case of Somasundaran v. Narasimhachariar[10] it was held that the conversion of the father or the son from Hinduism to any other faith would not operate to rid the son form his pious obligation with respect to the debt that has been incurred prior to the conversion of the father.

Liability of Pious Obligation When Father Is Still Alive

Earlier the view of the courts was that the liability of the son cannot arise in cases where the father is still alive.[11] However, this view was discredited in the case of Brij Narian v. Mangla Prasad[12].

Debt Becoming Time Barred

In the case of Mulchand v. Jairam[13] it was held that the liability of the son would subsist so long as the liability of the father subsists. Thus, if the debt becomes time-barred, the liability of the son would also become time-barred.

Effect Of Secured Debt

In the case of Hira Lal v. Puran Chand[14]the Allahabad High Court held that it is irrelevant whether a debt is secured or unsecured for the purpose of doctrine of pious obligation. The security merely provides a mode of recovery and if the payment of a debt is obligatory on the debtor, his sons are also bound to make the payment morally and religiously. However, there have been dissenting opinions as well. In the case of Jagdish Prasad v. Hosyar Singh[15] an opposite view was taken but in the case of Faqir Chand v. Sardarni Harnam Kaur[16], the Supreme Court held the former to be correct full stop

Who Cannot Be Held Liable Under The Doctrine Of Pious Obligation

Nephew – It was held in the case of Ram Rattan v. Lachhman Das[17] that a nephew is not liable to pay the debts of the uncle if he is a part of the joint family.

Wife – In the case of Nahtubhai v. Chotubhai[18] it was held that the doctrine of Pious Obligation cannot be extended to the wife who has received a share on partition which took place between her husband and her son.

Avyavaharik Debt

Avyavaharik debt means debt incurred which is not in the normal course of the business.[19] It can also be referred to as the debt “for a cause repugnant to good morals”.[20] According to Usanas, what is not vyavharik must not be paid by the son.

According to Brihaspati, Gautama, Manu and Usanas, the son is not liable to pay the following debts:

  1. Debts for spirituous liquour.
  2. Debts due for lust.
  3. Debt due for gambling.
  4. Unpaid fine.
  5. Unpaid tolls.
  6. Useless gifts or promises without considerations or made under the influence of lust or wrath.
  7. Suretiship Debts
  8. Commercial Debts.
  9. Avyavaharik debt[21]

The following have been held to not be Avyavaharik debts:

  1. Debts incurred for a new business.[22]
  2. Debts incurred due to negligence in performance of a duty.[23]
  3. A promissory note executed for payment of a time-barred debt.[24]

In the case of Manibhai v. Hemraj[25] it was held by the Supreme Court of India that alienation of joint family property by father to satisfy the debts contracted even for his personal benefit and without legal necessities binding on the sons on the basis of the doctrine of pious obligation if the alienation is not Avyavaharik or tainted with immorality or illegality and the debts were antecedent in fact as well as in time to the alienation. But alienation made by father neither for legal necessity nor for the benefit of a state nor for payment of antecedent debt is not valid and is not binding. For judging the validity of transactions of alienation, each transaction should be examined independently.

In the case of Dhondopant Madhavrao Inde v. Ashok Haribhau Patil[26], the Bombay High Court held that the son cannot be made liable where the father was involved in embezzlement and consequent selling of the property for that amount which was embezzled as the same is Avyavaharik in nature.

Antecedent Debt

Antecedent debt means a debt which is antecedent in fact as well as in time. The sons are both nearly liable for the payment of debt there the alienation was made by the father in the form of an antecedent it. This means that the debt must be independent of and part of the transaction.

In the case of V. Prasad v. Govindaswami Mudaliar[27], a coparcener had contracted debt in connection with his new business and to clear those debts, he had executed sale of joint family property. Thus, the debt in question was antecedent debt so far as his sons were concerned and therefore, they were under a pious obligation to pay off those debts.

Conclusion

The doctrine of pious obligation lays down that a son is liable to pay the debts of his father as long as those debts incurred are not tainted by immorality. While the earlier position was that the liability of the son is that of personal nature, it was later limited to the share of the son in the joint family property.

Even though the origin of doctrine of pious obligation is based in the Hindu scriptures, it had become a mode of recovery for the benefit of the creditors of the fathers. It was believed that a person who had not repaid his debts will have to suffer in his subsequent life and therefore, it was the obligation of the son, both morally and religiously, to repay the debts of the father to protect him from any problems in his subsequent life.

If the debt was incurred prior to the partition of the joint family property, the son would still be held liable for the payment of the debt. Even if the debt was incurred for the benefit of the entire joint family, it was only the son of the borrower who would be held liable for the repayment of such debt after the death of the father. This created a lot of hardship for the sons and this was also taken a note by various High Courts. The doctrine itself has a very limited scope because it is applicable only on Hindus who was living in a joint family. The separate property of the son cannot be held liable for the payment of father’s debts. Presently, this doctrine is no longer applicable for any debt that is incurred after 2005 amendment of the succession act.

[1] K.M. Raghothaman v. P. Abraham, AIR 1971 Ker 154.

[2] Section 6(4) proviso, Hindu Succession (Amendment) Act, 2005

[3] Amrit Lal v. Jayanti Lal, AIR 1960 SC 964.

[4] (1970) 2 SCR 648.

[5] C.F. Ladu v. Gobardhan Das, AIR 1925 Pat 470.

[6] Peda Venkanna v. Sreenivasa, AIR 1918 Mad WN 55; Thaj Mohamed v. Balaji, AIR 1934 Mad 173.

[7] AIR 1929 All 775.

[8] Pannalal v. Mt Naraini, AIR 1952 SC 172; Baboo Ram v. Bachni, AIR 1974 P&H 343; Jayantilal v. Shrikant, 1980 HLR 292 (Guj).

[9] 1979 HLR 247 (SC).

[10] 48 LW 452.

[11] Sahu Ram v. Bhag Singh, AIR 1917 PC 105.

[12] AIR 1924 PC 50.

[13] AIR 1935 Bom 287; Lakshman v. Mahabaleshwar, AIR 1981 Bom 542; Jayantilal v. Shrikant, 1980 HLR 292 (Guj) (FB).

[14] AIR 1949 All 685

[15] (1929) ILR 51 All.

[16] (1967) 1 SCR 68

[17] ILR (1908) 30 All 460

[18] AIR 1962 Guj 68; Central Bank of India v. Bhan General Store, 1998 SCC OnLine P&H 1234; Kishan Dass Talwar v. Adeshwar Lal Jain, 1976 SCC OnLine Del 43.

[19] SM Jakati v. SM Borkar, AIR 1959 SC 282.

[20] Amrit Lal v. Jayantipal, AIR 1960 SC 964; Hem Raj Khem Chand, AIR 1943 PC 142; Durbar Khachar v. K. Harsur, ILR 32 Bom 348; Chakouri Mahton v. Ganga Prasad, ILR 39 Cal 862; Venugopal v. Ramadhan Chetty, AIR 1914 Mad 654.

[21] NR Rashvachariar, Hindu Law, 6th Edition 342.

[22] Sridhan v. Murthi Brothers, 1976 HLR 256 (Mad).

[23] SM  Jakati v. SM Borkar, AIR 1959 SC 282.

[24] Gajadhar v. Jagannath, AIR 1924 All 551

[25] Manibhai v. Hemraj, (1990) 3 SCC 68

[26] 1977 SCC OnLine Bom 136

[27] (1982) 1 SCC 185

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Aakriti Gupta

Aakriti Gupta is a final year student of BA LLB in Army Institute of Law, Mohali. She is also pursuing the Company Secretary course. She has interned with various companies, firms and advocates in the capacity of a legal intern/ researcher. She is an avid mooter and has participated in various national and international moot court competitions, client competitions and trial advocacy competitions.