Discuss the properties which are liable for the payment of personal debt of a Hindu?Are sons under pious obligation for the payment of their father’s personal debt even after partition, if so, to what extent? Discuss.
Or Examine the theory of pious obligation of a son to pay his father’s debt? Illustrate your answer with reference to the leading cases.
Ans. Properties which are liable for the payment of personal Debts–The liability to pay the debt of a Hindu is on the following properties–I. Liability of Separate Property–The separate property of a Hindu is under all circumstances always liable for his personal debts whether incurred for immoral or unlawful objects. 2. Liability of Undivided Coparcenary Interest–It has now been established that the undivided interest of a coparcene in the coparcenary property may be attached in his lifetime in exectution of a decree against him and if so attached, it may be sold even after his death. 3. Liability of Coparcenary Property—When coparcenary consists of an ancestor and his sons, grandsons and great grandsons and the ancestor dies, the whole coparcenary property is liable for his debts even after his death subject to the condition that the debt was not incurred for an immoral or unlawful purpose. Nature of Liabilities— According to Maine the liabilities of a Hindu son to pay his fathers debt may arise from three different sources i.e., (i) Religious, (ii) Moral and (iii) Legal Obligations. 1. Religious Obligation—The religious obligation is attached to the son as well as grandson and according to the Privy Council, to the great-grandsons also, on the ground that all the three are coparceners with others by their birth. Further, it is based on the doctrine of “pious obligation” which means that a son has a pious duty to pay the father’s debt not contracted for illegal or immoral purposes. The Doctrine of Pious Obligation—This doctrine has its origin in the Smriti which regard non-payment of debt as a positive sin, the evil consequences of which follow the undischarged debts even in the world afterwards. 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. Thus, Vrihaspati says that if the father is no longer alive, the debt must be paid by his sons. 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 events. The father’s debts on being proved, must be paid by the sons, as if it were their own; the grandfather’s debt must be paid by his sons, without interest, but the son of a grandson need not pay it at all. “Sons shall not be made to pay (a debt incurred by their father) for spirituous liquor, for idle gift, for promises made under influence of love or wrath, or for suretyship; nor the balance or a fine or toll liquidated in part by their father.” Manu says, “Money due by a surety or idly promised or lost at a play or due for spirituous liquor, or what remains unpaid of a fine and lax or duly, the son shall not be obliged to pay.” Yajnavalkya in this respect says, “A son has not to pay in this world his lather’s debt incurred for spirituous liquor, for gratification of lust or gambling, nor a fine nor what remains unpaid of a toll; nor (shall he make good) idle gifts.” Narada says, “A father must not pay the debt of his son bul a son must pay a debt contracted by his father excepting those debts which have been contracted from love, anger, spirituous liquor, games or bailments.” Effect of Judicial Decisions on the Doctrine —The doctrine, as formulated in-the original texts has been modified in some respects by judicial decisions. Under the law, as it now stands the obligation of the son is not a personal obligation, existing irrespective of the receipt of any assets. 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 when 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 coparcenary property can always be made liable for such debts. The fundamental rule is that a Hindu son is not liable for debt contracted by his father, which is Ayavaharika, i.e., illegal, dishonest or immoral. The facts and circumstances of the contract of the father are to be looked into to ascertain the nature and character of the debt. In Nan Bachchan Ms. Sita Ram, A.I.R. 1977, All. 126, the Allahabad High Court has held that by,virtue of the doctrine of pious obligation, the interests of the sons in the joint-family property are liable for the debts of their father in a joint family provided they were not incurred for any illegal or immoral purpose. The creditor could legally attach and put up to sale the right, title and interest of the sons in the joint-family property. Liability When Arises ?–The son’s pious duty to pay offh is father’s debt not contracted for illegal or immoral purposes, is a present liability annexed to both the father’s and son’s interests in the ancestral. property and does not depend on the facts whether the father is alive or dead. His liability arises the moment the father fails to pay or the father’s share in the joint property or his self-acquired properties are found insufficient to meet debts. Duration of Liability—The pious obligation of the sons to pay the father’s debts subsists only so long as the liability of the father subsists. Their liability is neither joint nor several. It arises even in father’s lifetime and not merely on his death. Son’s Liability–The liability of a son to pay the debts of the father is not personal; it is limited only to the son’s interest in the coparcenary property. Since under the Hindu Succession Act, 1956, the coparcenary interest of “Mitalcshara” coparcener devolves by succession not by survivorship in case the female heirs of dass I of the Schedule are present the sons would be liable for the payment of the father’s debt only to the extent of interest inherited by them from their father. Their liability to pay such a debt would not be unlimited. In Keshav Nandan Vs. The state of Bihar, A.I.R. 1977, Pat. 185, the Patna High Court has held that sons are liable to pay debts contracted by father before partition unless there was an arrangement for payment of these debts at the time when the partition took place. The view was again supported by Gujrat High Court in Jayanti Lai Vs. Srikan L A.I.R. 1980. The Court held that the doctrine of pious obligation applies to the debts contracted by the father before partition but it does riot apply to debts incurred after partition. The sons even after partition are under pious obligation to pay off the debts incurred by their father before partition. Their Lordships of the Privy Council have laid down the following five propositions in respect of father’s power to contract the debts and son’s liability to pay it —1. The managing member ofa joint undivided estate cannot alienate or burden the estate “qua” manager except for purposes of necessity, but, 2. If he is the father and other members are the sons he, may by incurring debt so long as it is not for an immoral purpose lay the estate open to be taken in execution upon a decree for payment of that debts. 3. If he purports to burden the estate by mortgage then unless that mortgage is to discharge antecedent debt, it would not bind the estate. 4. Antecedent debt means antecedent in fact as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached. 5. There is no rule that this result is affected by the question whether father, who contracted the debt or burdened the estate, is alive or dead. The Supreme Court has also held that “there is no warrant for the view that tc saddle the sons with this pious obligation to pay the debt of their father. It is nccessary that the father should be the manager or `Karta’ of the joint family, but that the family must be composed of the father and sons only and no other male member.” A father as manager can incur debt by mortgage of joint family property, for discharging his debt. His son is under pious obligation io pay the mortgage debt which his father is personally liable to pay provided it is not incurred for immoral purpose. In such a case, son’s liability cannot be confined only to money decree against his father. It is the existence of the father’s debt that enables the creditor to sell the property in execution of a money decree against the father The theory is that the father may, in order to pay a just debt, legally sell the whole estate without suit so that his creditor may bring about such a sale by the intervention of a suit. 2. Moral Obligation—It is one’s moral duty to pay the debts of a person to whose property one has succeeded as heir. 3. Legal Obligation—Besides religious and moral duties there is a legal obligation to pay the debt secured by the father.