Doctrine of Pious Obligation

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This article is written by Soumya Shekhar, Som Law College Prayagraj, UP, 4^th Semester (LL. B), intern under Legal Vidhiya.

Abstract

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 coparcenaries rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenaries 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 givers his 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.

Keywords – Pious, obligation, debts, avyavaharika, tainted, illegality, subsequent, dishonesty, coparcenaries, sons, father, Hindu law, ancestors, non-payment inheriting.

Introduction

Nowhere has the term “Hindu Undivided Family” (HUF) been defined. It derives its meaning and rules from the two schools of Hindu Law, Dayabhaga School in West Bengal and Mitakshara School in the rest of the country.

Over the years, HUF has expanded its foundations because of the beneficial business scope and is framed under the provisions of the Hindu Succession Act, 1956. If you did not know, the HUF is exempted from income tax payments, which reduces the total tax payments flowing out from the family, in return increasing their liquidity. However, it does not rule out the factor of monitoring the business, not only in terms of the liability they incur but also the legal implications of the same.

Origin of Doctrine of Pious Obligation

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. Should they 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.

Since pious obligation is a duty arising out of a religious moral obligation, Hindu texts require the sons (or other descendants) to only pay debts which are religious and moral in nature. Thus, debts such as those arising out of the drunken habits, or immoral leisure of the father would not befall the sons.

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.

In the case of Anthonyswamy v. M.R. Chinnaswami 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.

Meaning of Pious Obligation

The Pious Obligation, here pious means religious, devout or Godly. And the obligation means duty or Karma of the Hindu person. so, the pious obligation means a duty of a Hindu person due to deep deviation from the Hindu religion.

There are two principles in Hindu Law, one is independent and standard of autonomous coparcenaries rights in the son which is an incident of birth, giving to the son vested rights in the coparcenaries property and the other one is the pious duty of a son to furnish all the debts of his deceased father which are not tainted with illegality or immorality.

Under Hindu Law, the son is under pious obligation to furnish his father’s debts. Let’s discuss it in detail.

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. 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.

Doctrine of Pious Obligation

In addition to the obligation imposed by the Mitakshara Law on the Son/Grandson/Great-Grandson, the doctrine of Pious Obligation is also applicable to a legal heir to satisfy the debt of his ancestor provided the debts are not of an immoral character. In Naradasmiriti Dharma sastras, it was illustrated that the obligation of the son was an independent obligation irrespective of the fact whether the son inherited any property from the father. Furthermore, the Doctrine of Pious Obligation is not of a religious character applicable only to the Hindus. The issue, whether the doctrine of pious obligation according to the Mitakshara school of Hindu law is applicable to Vanniya Tamil Christians came up for consideration before the Hon’ble Supreme Court Three Judges Bench in Anthonyswamy v. M.R. Chinnaswamy Koundan, (1969) 3 SCC 15: AIR 1970 SC 223.

The Pious Obligation of a Son

In the Hindu Undivided Family, male members are of priority when it comes to carrying out the duties and obligations of the Karta. After the death of the Karta, the male member second to the Karta, either a male relative or the eldest son, takes over the business.

The history behind the creation of this principle can again be traced back to the traditional Hindu Laws under which the business has come into existence. The Hindu law says that whatever the father was unable to repay during his lifetime, shall be fulfilled by his sons equally and if they were to separate, they shall still complete the duty according to their respective divided shares. In this manner, neither is the obligation left undone nor are the sons overburdened with excessive obligations.

On these terms considering the Karta is the Father, the son has various pious obligations, the most important being discharging his father’s debts unless the debts are illegal in nature. Lord Dunedin had given his decision on the question of at what stage can a debt be considered as illegal. He has said that any debt can only be considered illegal when the entire motive for obtaining the money was illegal and not if the father had legally obtained the sum but afterwards misappropriated it. Thus, for a debt to be considered illegal to enable the exoneration from fulfilling its repayment, two conditions have to be met with:

The debt must be prior in time.
The debt must be prior in fact.

Another point to be noted is that, for the acquittal of the son from repaying his father’s debts, it is not necessary that the debt has to be illegal only. It could be obtained through immorality or dishonesty and still would be considered a valid ground for the son’s relief.

In a nutshell, once the son takes over the family as the Karta, he has to fulfil all of his father’s incomplete obligations as well as perform the duties expected from a Karta and enjoy the powers conferred upon him unless corrupted by any kind of immoral, unlawful or dishonest conduct.

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 imposed upon the sons to pay their father’s debts.”

Burden of proof that the debts is tainted is on sons

The obligation on son to pay off their father’s personal debts is religious obligation and if they want to wriggle out of 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 Jethalal, 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.

After the Amendment 2005

After the amendment in the Hindu Succession Act in 2005, the doctrine of pious obligation of sons to repay the debts have been expressly abolished. The law is prospective in application and cases arising prior to the promulgation of the amendment would continue to be guided by the principles governing the same by the classical law.

As per the Section 6 of the Hindu Succession Act, 1956, after the amendment the daughters shall have the same rights and liabilities as if she would have been a son. Therefore, the pious obligation has been deleted after the amendment Act of 2005 but the liability to pay the debt of the deceased father will be the same upon daughters as they would be on sons before the commencement of the 2005 amendment Act, But if however, such heir has expressly to bind himself to fulfil the obligation, the provision will become redundant and inoperative. Since the commencement of this amendment the creditors rights are preserved against any heir born after the said Act was passed. If the daughter expressly agrees to give back the debt of her father, then she can do it as per the guidelines under the amended section 6 of Hindu Succession Act.

Thus, it has been analysed that 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 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.

Landmark judgments

The lack of laws is balanced by the numerous key judgments given by the Apex Court and High Courts. Some of the judgments are old but still serve their purpose as upholding the principles of a Hindu Undivided Family and thus, are still in use and relied upon.

The following case laws under the points of their importance have been enlisted, spanning a wide range of time, going back to the immediate post-independence years and some principles given during the British era as well.

The capacity and position of the Karta

Chandrakant Manilal Shah and Anr vs. Commissioner of Income Tax (AIR 1992 SC 66)

In this case, the issue was that a HUF was later on converted into a partnership, but the son had not brought in the capital in cash and thus, the registration of the firm was refused by the CIT on grounds that it was not a valid partnership. And so was upheld by the Appellate Tribunal and the High Court. However, the Supreme Court decided that just like when an individual brings in cash assets it is useful for the operations of the firm if an individual provides skill and labour to the firm, it is equivalent to the same. From this judgment, it was inferred that Karta being the owner of the HUF turned partnership, he has to bring in capital. The same is not an obligation for the sons. This further drives the point that the Karta being responsible for the maintenance of the family has to bring cash resources to meet the necessary requirements because there is a possibility that the son might not bring in any capital.

Alienation of property and legal necessity –

M/s Nopany Investment Ltd. (P) vs. Santosh Singh (HUF)

In this case, there were many questions of law but here, the focus is on the question whether a younger male member of the HUF could act with the capacity of the Karta even if there were other older members and the Karta himself was alive. The ruling given by the Supreme Court said that if due to some unavoidable circumstances the Karta is unable to carry out his duties and obligations, he has the power to appoint another member of his family, be it younger, as the new Karta with the knowledge and consent of the other coparceners and members of the HUF, subsequently relieving himself from his obligations towards the property and the family.

Dev Kishan and Ors. Vs. Ram Kishan

In this case, the importance of “legal necessity” was emphasized upon by the Rajasthan High Court. Furthermore, the Court ruled the alienation of the property by the Karta unlawful because he had mortgaged and sold the joint family property for the purpose of marriage of two minor girls, which is unlawful under the Child Marriage Restraint Act, 1929 and does not inspire the confidence of legal necessity.

Position of women as the Karta and Coparceners

Gangoji Rao and Anr. vs. Channappa (AIR 1982 Kant 222)

In this case, the sons had challenged the alienation of the property by their mother who was the widow of the father. The Karnataka High Court had then ruled that women cannot be either the Karta or a coparcener in a HUF.

Mrs Sujata Sharma vs. Shri Manu Gupta

This case is one of the most historic judgments for women and their involvement in a family business. In this case, the Delhi High Court in the year 2015 decided that a female member of the family can also become the Karta and shall enjoy all the equal rights the sons do.

Duty to bear expenses

Nanak Chand vs. Chandra Kishore Agarwala (AIR 1970 SC 446)

Marriage is one of the most sacred and valued relationships in the culture and traditions of Hinduism. As it is, the HUF as well as values the importance of marriage. Karta has a duty to get the unmarried members of the family in wedlock especially the daughters as their marriage is considered sacrosanct under Hindu law. He has to bear all the expenses of the marriage through the funds of the family and if he has to pool in the resources from outside, he has to see them repaid in time.

Conclusion

The doctrine of pious obligation outlines the duty of a son to repay the debts of his forefathers, and ensure their salvation. The doctrine finds its translation in the modern Hindu Law as well where a son is liable for the payment of debts undertaken by his father. These debts however, should be vyavaharika and undertaken by the father in the capacity of the karta of the family. The nature of the loan is avyavaharika if the very undertaking of it was illegal in nature and not when a vyavaharika loan leads to illegal results. The modern Hindu Laws also allows a father to discharge a son’s share in the coparcenary property to pay off these debts. The liability of the son under the doctrine extends to the interest accrued on the loans as well. A son however, cannot be made liable for debts incurred partition of joint Hindu property.

The Hindu Succession Act, 2005 has however held the doctrine to be repugnant under modern law and discontinued its application in personal laws.

References