What is Avyavaharik debt? When debt becomes Avyavaharik? Discuss the law regarding such debts.

Question: What is Avyavaharik debt? When debt becomes Avyavaharik? Discuss the law regarding such debts. [UPJS 2023]

Find the answer to Hindu Law only on Legal Bites. [What is Avyavaharik debt? When debt becomes Avyavaharik? Discuss the law regarding such debts.]

Answer

The Mitakshara explaining the Avyavaharik Debt has laid down that sons are not bound to pay to the wine-seller and the rest, i.e., to the winning gambler, to the mistress and others. The explanation shows that there should be a direct connection between the debt and the immorality exonerating the male descendants from the liability of paying the same. It must be proved that the particular debt was contracted for an immoral purpose.

Vrihaspati says that “the sons are not compellable to pay sums due by their father for spirituous, liquor, for losses at play, for promises made without consideration or under the influence of lust or of wrath, or sums for which he is surety, or for a fine or a toll or the balance of either.”

Manu says that “money due by a surety, or idly promised, or loss at play, or due for spirituous liquor, or what remains unpaid of a fine and a tax or a duty the son shall not be obliged to pay”.

Yajnavalkya says that “if the father is dead or gone to a distant place, or laid up with an incurable disease, his sons and grand-sons shall pay his debt but the son shall not be made to pay the debt contracted for wine, lust or gambling or due on account of the unpaid portion of a fine or toll, on account of an idle promise”.

Narad says that “money due by a surety, a fee due to the parents of a bride, debts contracted for spirituous liquor or for gambling and a fine shall not involve the sons of the debtor”.

The Privy Council in the leading case of Heniraj v. Khem Chand, (1944) 46 BOMLR 503, interpreted the term “Avyavaharik” as used in the Smritis and also examined the circumstances under which a son has an obligation to discharge his father’s debt. Their Lordships observed:

“Under the Hindu Law a son is under pious obligation to pay his father’s debts to save him from punishment in a future state for non-payment of his debt. As observed by the Board in Girdhari Lal v. Kantoo Lal, “it being the pious obligation of the son to pay his father’s debt, the ancestral property, in which the son as the son of his father acquires an interest by birth, is liable for the father’s debt. In their Lordship's view this obligation is not unqualified, for the son is not bound to pay his father’s debt, if the debts are Avyavaharik”.

If the doctrine of pious obligation is to be given full effect, there cannot be any doubt that the Hindu son should be held liable for every undischarged debt of his father, but the doctrine has a reference to the nature of the debt which creates the liability. In Hanuman Prasad Pandey’s case, it was stated that unless the debt was of such nature that it was not the duty of the son to pay it, the discharge of it, even though it affected ancestral estate, would still be an act of pious duties in the son.

The debts in the nature of Avyavaharik are debts which would be comprised in the expression “illegal or immoral debts” and if the debt is such, the son would not be under any obligation to pay it. On the other hand, if the debt is not tarnished or tainted with illegality or immorality, it will be binding on the son.

Thus, the doctrine of pious obligation is based solely on religious consideration and postulates that the father’s debts must be Vyavaharik and if the debts are Avyavaharik and tainted with immorality or vice, the doctrine cannot be invoked.