What do you mean by pious legal theory? Discuss the liability of a son to pay off his father's debt.

Question: What do you mean by pious legal theory? Discuss the liability of a son to pay off his father's debt. [UPJS 2018]

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Answer

Pious obligation holds that it is a son's liability to pay off his father's debts. These debts fall as obligations only when they are for legal purposes making them "Vyavaharik debt", debts taken for illegal purposes that are "Avyavahrik debts" are excluded from this obligation. The Doctrine of Pious Obligation is solely religious, under this sons are made liable to discharge their father's debts.

Origin

The ancient doctrine of pious obligation was governed by Smriti law. There is a pious obligation on the sons and grandsons to pay the debts contracted by the father and grandfather.

The concept of pious obligation has its origin in Dharmashastras, according to which non-payment of debt is a sin that results in unbearable suffering in the next world. Hence the debts must be paid off in all circumstances provided it was not for immoral and illegal purposes. Vrihaspati has said, 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 debts, but a debt contracted by the paternal grandfather must always be paid before these two events.

Yajyavalkya says,

"A son has not to pay in this world father's debt incurred for spirituous liquor, for the gratification of lust or gambling, nor fine, nor what remains unpaid of a toll; nor idle gifts."

But in case of debts for purposes other than the above, on the death of the father, or on his going abroad, or suffering from some incurable disease, the debt contracted by him would be payable by his sons and grandsons.

The Mitakshara has presented the entire proposition in more vital words. According to it when the father has gone abroad or is suffering from so incurable disease, the liability to pay the debt contracted by him would lie on the sons and grandsons irrespective of the fact that the father had no property. There are reasons for fixing this liability on sons and grandsons. The liability to pay the debt is in the order, viz., in absence of the father the son, and the absence of the son the grandson.

Son's liability to pay the Debt

The liability of the son to pay the debts of his father is not personal, it is limited only to the son's interest in the coparcenary property.

The liability of Hindu sons in a Mitakshara coparcenary to discharge the debts of the father, the Karta, which are not tainted with immorality is based on the pious obligation of the sons which continues to exist even after the death of the father and which does not come to an end as a result of the partition of joint family property unless a provision has been made for the payment of just debts of the father.

Therefore, even though, the father's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition, the right of the judgment-creditor, who has obtained a decree against the father, to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligations of the sons.

In Keshav Nandan v. Bank of Bihar, AIR 1977 Pat 185, the Patna High Court has held that the sons are liable to pay debts contracted by the father before partition unless there was an arrangement for payment of these debts at the time when the partition took place.

This view was again supported by Gujarat High Court in Jayanti Lal v. Shrikant, AIR 1980 Guj 67. The Court held that the doctrine of pious obligation applies to the debts contracted by the father before partition but it does not apply to debts incurred after partition. The sons even after the partition are under pious obligation to pay off the debt incurred by their father before the partition.

Where a money decree is obtained by a creditor against the Hindu father before the partition of the joint family property, the right of the pre-partition creditor to seize the property of the erstwhile joint family in the execution of his decree is not dependent upon the father's power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition.

Position After Hindu Succession (Amendment) Act, 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 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. The same was held in the case of Pratibha Rani Tripathy v. Binod Bihari Tripathy, AIR 2014 Ori 75.

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