“THEORY OF PIOUS OBLIGATION”
FINAL DRAFT SUBMITTED IN THE FULFILLMENT OF THE COURSE TITLED FAMILY
LAW-II FOR OBTAINING THE DEGREE OF B.B.A LL.B (Hons.)
PROJECT PROPOSED BY:
NAME: SWEKSHA PRIYA
ROLL NO.: 1862
SEMESTER: 4TH
SUBMITTED TO:
Mrs. POOJA SRIVASTAVA
ASSISSTANT PROFESSOR of LAW
FEBRUARY, 2019
CHANAKAYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,
MITHAPUR, PATNA- 800001
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DECLARATION BY THE CANDIDATE
I hereby declare that the work reported in the B.B.A., LL.B (Hons.) Project Report entitled “Theory
of pious obligation” submitted at Chanakya National Law University is an authentic record of my
work carried out under the supervision of Mrs. Pooja Srivastava.
I have not submitted this work elsewhere for any other degree or diploma. I am fully responsible
for the contents of my Project Report.
SIGNATURE OF CANDIDATE
NAME OF CANDIDATE-SWEKSHA PRIYA
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
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ACKNOWLEDGEMENT
A project is a joint endeavour which is to be accomplished with utmost compassion, diligence and
with support of all. Gratitude is a noble response of one’s soul to kindness or help generously
rendered by another and its acknowledgement is the duty. I am overwhelmed in all humbleness
and gratefulness to acknowledge from the bottom of my heart to all those who have helped me to
put these ideas, well above the level of simplicity and into something concrete effectively and
moreover on time.
I would like to thank my faculty Mrs. Pooja Srivastava whose guidance helped me a lot with
structuring my project. I owe the present accomplishment of my project to my friends, who helped
me immensely with materials throughout the project and without whom I couldn’t have completed
it in the present way.
I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.
THANK YOU,
NAME: Sweksha Priya
COURSE: B.B.A., LL.B. (Hons.)
ROLL NO: 1862
SEMESTER: 4TH
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Aims and Objectives
The research objective of this project is to find out the origin of the theory of pious obligation, it
application in the contemporary world and its relevance in the Hindu Laws of succession after the
passing of the Hindu Succession (Amendment) Act, 2005
Research Methodology
The researcher has followed the doctrinal method of research to make this project. The researcher
has visited the library of Chanakya National Law University to collect relevant research material
from books, articles, law journals, etc. The researcher has also used the source of internet while
making the project.
Scope and limitations
Though the study of the trial before Court of Session is an immense project and pages can be
written over the topic but due to certain restrictions and limitations the researcher has not been
able to deal with the topic in great detail.
Sources of data
The following secondary sources of data have been used in the project-
1. Cases
2. Books
3. Journals
• Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.
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Mode of citation:
The researcher has followed a uniform mode of citation throughout the course of this research
paper.
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Table of Contents
Pages
Chapter-I – Introduction 1-2
Chapter-II – Fundamental Concepts of the theory of pious obligation 3-4
Chapter – III – Burden of proof and relavant case law 5-8
Chapter – IV – Conclusion 9-10
Bibliography ii
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Introduction
Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out
of his ancestral property even if he had not been benefited by the debts, provided the debts are not
avyavaharika. The sons get exonerated from their obligation to discharge the debt of their father
from the family assets only if the debt was one tainted with immorality or illegality.
The duty that is cast upon the son being religious and moral, the liability of the son for the
debt must be examined with reference to its character when the debt was first incurred. If at the
origin there was nothing illegal or repugnant to good morals, the subsequent dishonesty of the
father is in not discharging his obligation will not absolve the son from liability for the debt.
In Hindu law there are two mutually destructive principles, one the principle of independent
coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the
coparcenary property, and the other the pious duty of the sons to discharge their father's debts not
tainted with immorality or illegality, which lays open the whole estate to be seized for the payment
of such debts. According to the Hindu law, son’s pious duty to pay off the ancestors' debts and to
relieve him of the death torments consequent on non-payment was irrespective of their inheriting
any property, but the courts rejected this liability arising irrespective of inheriting any property
and gave to this religious duty a legal character.
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HISTORY
If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be
restored, after his death, by his sons. In case the sons separate, they shall repay it according to their
respective shares. If they remain united, they shall pay it in common, or the manager shall pay it
for the rest, no matter whether he may be the senior of the family or a younger member, who,
during the absence of the oldest, or on account of his incapacity, has undertaken the management
of the family estate.
Mukherjea J., delivering the judgment of the Supreme Court in Sidheshwar v.
Bhubaneshwar Prasad , has once again discussed this question. According to the learned Judge,
the doctrine of pious obligation. “has its origin in the conception of Smriti writers who regard non-
payment of debt as a positive Sin, the evil consequences of which follow the undischarged debtor
even in the after world. It is for the purpose of rescuing the father from his torments in the next
world that an obligation is imposed upon the sons to pay their father's debts.”
A series of decisions in the courts of modern India have changed the traditional interpretation of
the liabilities of the son, grandson, and great-grandson. The traditional distinction was that the son
was liable to pay the principal and the interest, the grandson was liable to pay only the principal
but no interest, and the great-grandson was liable only to the extent that the paternal estate came
into his hands. The son, grandson, and the great-grandson are liable equally for ancestral debts,
but not personally liable, and that their liability is co-extensive and confined to the extent that they
have joint property in their possession.
It was not essential for the son to prove criminal liability against the father in respect of the debt
in question in order to claim exemption from payment of such debt. The learned Judge pointed out
that the son can claim immunity only when the father's conduct is utterly repugnant to good morals
or is grossly un-just or is flagrantly dishonest.
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Chapter – II
Fundamental Concepts of the theory of pious obligation
Avyavaharik debts: The meaning of Avyavaharik debts has been explained in this section.
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. It may be that
the debts incurred by the father for defending himself against criminal action against others or
defending himself in an action brought by others are legal in several circumstances. If a debt was
incurred to defend the rights of the family and to safeguard its interests, it is certainly legal in
nature. If a debt is not tainted with illegality at its inception it may be binding on the son. The son
may not be able to claim immunity from the debts in such cases. But, where the father's conduct
which prompted the incurring of the debt, is utterly repugnant to good morals or is grossly unjust
or flagrantly dishonest, then certainly the son can claim immunity from its liability. The learned
author Mulla of Hindu Law places any debt which is avyavaharika which is rendered by
Colebrooke as equivalent to a debt for a cause “repugnant to good morals” in the list of
Avyavaharika debts. It is further stated that the fundamental rule is that the sons are not liable for
the debts incurred by father which are Avyavaharika. Colebrooke translates it as “debts for a cause
repugnant to good morals.”
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 rightful owner of that
property, his conduct is dishonest and the son is not liable for the debts arising out of such
conduct.
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Lord Dunedin of the Privy Council defined the antecedent debts as antecedent in fact as
well as in time i.e. not a part of transaction impeached. Thus, two conditions are necessary:
1. The debts must be prior in time and
2. The debts must be prior in fact.
A son could claim immunity only where the debt in its origin was immoral by reason of the
money having been obtained by the commission of an offence; but not where the father came
by the money lawfully but subsequently misappropriated it. It is only in the former case that
the debt answers the description of an Avyavaharika debt. If originally the taking was not
immoral, i.e., if it did not have a corrupt beginning or founded upon fraud, it could not be
characterised as an Avyavaharika debt and the son could not be exempted from satisfying that
debt. The supervening event, namely, the misappropriation later on would not change the
nature of the debt. The vices should be inherent in the debt itself.
Immoral debts: Immoral debts are those which are taken in furtherance of an immoral purpose
such as for prostitution or for keeping of concubine. Thus the expenses of the marriage of
concubine's granddaughter or to bribe to Hindu women so that she may take one of his sons in
adoption or purpose of gambling will be for illegal purpose. The debts resulting from the highly
tortuous act which at their inception are tainted with an evil purpose are avyavaharika.
Father's power of alienation for antecedent debts: 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 antecedent debts 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 for partition.
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Chapter – III
Burden of proof and relevant case law
The obligation on son to pay off their father's personal debts is religious obligation and if they
want to avoid it, they can do so only if the debts are tainted the son also have to show that creditor
had the notice or knowledge that the debts was tainted.
The Apex Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal1, 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 coparceners property can always be made liable for such
debts.
The proposition laid down in Brij Narain's case is founded upon the pious obligation is that a
The father enables the creditor to sell the property in execution of a decree against him for payment
of the debt. The son is under a pious obligation to pay all debts of the father, whether secured or
unsecured.
1
1960 AIR 964
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In Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni2, the observations of
the Supreme Court are as follows:
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 purposes.
When a mortgage has been created by the father A Full Bench of the High Court gave the following
answer :
"In the case of a Hindu joint family consisting of a father and sons when a mortgage has been
created by the father of joint property, and a decree has been obtained on the basis of the mortgage,
the only ground on which the sons can challenge the mortgage and the decree is that the debt was
incurred for illegal or immoral purposes and that for this purpose it is immaterial whether the
mortgaged property has actually been brought to sale in execution of the decree or not."
It may be mentioned here that the distinction between a father manager and a brother manager
cannot be lost sight. In the case of debts contracted by the father manager, the son is bound to
discharge the same on account of the doctrine of pious obligation notwithstanding the fact that the
debt was contracted for no legal necessity, nor for the benefit of the family. The doctrine of pious
obligation has no application in the case of the brother manager. Therefore, the debt contracted by
the brother manager binds the other members the joint family only when it was for legal necessity
and for the benefit the family. The doctrine of pious obligation has no application when the debt
contracted by the father was for any illegal or immoral purposes.
In Hemraj v. Khem Chand3 , the Court referred to the Judicial Committee's view which held that
the translation of the term 'avyavaharika' as given by Mr. Colebrooke makes the nearest approach
2
1978 AIR 1791
3
1979 SCR (1) 955
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to the true conception the term as used in the Smrithi text, and that the term does not admit of a
more precise definition. The term commonly used in decisions and text books to describe those
debts 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 temi to
cover all the cases enumerated in the smiritis. It is, therefore, expedient to use the term 'illegal or
immoral' purposes then 'avyavaharika' which as discussed by me supra eludes any precise
definition.
No pious obligation is involved in the said debt inasmuch as it is not the personal debt neither the
father nor the debts contracted for the benefit of the family. As understood the legal position is so
clear that so long as the purpose is not tainted with the element of illegality or immorality the sons
are liable under thedoctrine of pious obligation.
In Keshav Nandan Sahay Vs. The Bank of Bihar4, it was said that sons are liable under the
theory of pious obligation for the preparation debts incurred by the father. The doctrine of pious
obligation cannot apply to the wife and she, therefore, cannot be liable to the creditors on the
principles applicable to the sons. On a partition between a coparcener and his sons, a share is
allotted to the wife in her own right and she cannot be treated as mere representative of the husband.
The principle is based upon ancient Hindu texts which do not mention the wife in the category of
the sons and there is no statutory enactment ex- tending that doctrine so as to include her.
Ramasamayyan v. Virasami Ayyar5
Even where the mortgage is not for legal necessity or for payment of antecedent debt, the creditor
can, in execution of a mortgage decree for the realisation of a debt which the father is personally
4
AIR 1977 Pat 185
5
(1898) I.L.R. 21 Mad. 222)
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liable to repay, sell the estate without obtaining a personal decree against him. After the sale has
taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was
tainted with immorality or illegality.
Apentala Raghavaiah Vs. Boggawarapu Peda Ammayya6: 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 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 the petitioner for the benefit 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.
In the decision of the Supreme Court reported in Manibhai v. Hemraj7, also it is observed in para-
38, after referring to various earlier decisions of the Supreme Court as well as some other High
Courts, as follows:
"Even if "any loan is taken by the father for his personal benefit which is found as vyavaharik debt
and not avyavaharik, the sons are liable to discharge their father's debt under the doctrine of pious
obligation and in this view the matter if any alienation the joint family property is subsequently
made to discharge such antecedent debt or loan of the father, such alienation would be binding on
the sons.''
Analysis:
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
6
1977 (25) BJLR 543
7
1990 SCR (2) 40
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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.
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Chapter - IV
CONCLUSION
"The doctrine of pious obligation under which sons are held liable to discharge their father's debts
is based solely on religious considerations; the doctrine inevitably postulates that the father's debts
must be vyavaharik. If the debts are not vyavaharik or are avyavaharik the doctrine of pious
obligation cannot be invoked." The principle relating to the liability of the sons for debts incurred
by the father may be briefly recapitulated.
i. In respect of debts contracted by the father, even for his personal benefit, at a point of time
when he is joint with his sons, the sons are liable to pay such debts, unless the debts were
incurred for immoral or illegal purposes.
ii. This liability of the sons, which had its origin in an obligation of piety and religion, has since
metamorphosed into one of legal liability but this 'does not, however, extend to debts tainted
with immorality.
iii. The liability is not, however, 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 family property.
iv. It is settled that if the debt is contracted by the father after partition, the son cannot be made
liable
v. 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 discharge of such debts.
vi. In case a creditor institutes a suit for the recovery of a debt against the father before partition
and obtains a decree, the sons would be liable to discharge the decree passed against the father
even after the partition.
vii. Even in respect of a pre-partition debt, if a suit is instituted against the father, after partition,
but he dies and his separated sons are impleaded as legal representatives, the remedy of the
decree-holder against the shares allotted to the sons on partition, would be in execution and
not by way of an independent suit.
viii. If, however, after partition, a suit is instituted against the father on a pre-partition debt and a
decree is obtained against him, such a decree cannot be executed against the sons and a separate
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suit has to be brought against the sons in order to enable creditor to realize the amounts out of
their shares.
Thus the liability of the interest of the sons in such cases to discharge the debts incurred by the
father is undisputed, though the method and manner of its enforcement by the creditor would vary
and the sons must be afforded every opportunity, be it in a suit or execution proceedings to question
the binding nature of the debt' or liability.
After amendment of 2005:
After the 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 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.
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BIBLIOGRAPHY
1. Books:
a. Family Law by Paras Diwan
2. Websites:
a. www.indiankanoon.org
b. www.lesgalservicesindia.com
c. Learningflow.blogspot.com
