This article is written by Mrigha Mahajan of 2nd Semester of The Law School, University of Jammu, an intern under Legal Vidhiya
ABSTRACT
Pious Obligation is a term used to describe a son’s, son’s son’s, or great-grandson’s form of religious or devotional duty to repay the debts incurred by his father, grandpa, or great-grandfather. However, when it comes to debt, male descendants are solely responsible for paying the legal debts—also known as vyavaharika debts—of their ancestors. This paper will address the theory of Pious duty, which was in place before to the Hindu Succession Act modification in 2005. It will also examine case law and determine whether the doctrine still applies to daughters.
KEYWORDS: Pious obligation, Vyavaharika debt, Avyayaharika debt.
INTRODUCTION
In general, pious obligation refers to a son’s responsibility to settle his father’s obligations. The term “debt” in this context solely refers to “vyavaharika” debt, or debts incurred for legitimate causes; it does not include “avyavaharika” debt, or debts obtained for immoral or unethical reasons. The idea that sons are obligated to pay off their fathers’ debts is known as the Doctrine of Pious Obligation. It is exclusively spiritual. However, the concept inexorably assumes that the father’s obligations must be vyavaharika. The sons are exempt from the notion of pious obligation if the debts are not vyavaharika. By fulfilling their religious obligations and paying their debts, descendants can achieve spiritual salvation. This paper’s analysis and comprehension of the Doctrine of Pious Obligation and its relevance are its only goals. The study also attempts to compare the theories that were in vogue before to and during the Hindu Succession Amendment in 2005. It also seeks to comprehend the theory in light of pertinent case law.
HISTORICAL BACKGROUND
The meaning of the word ‘pious’ is sacred, moral or religious. The word ‘obligation’ means duty that arises from law or custom. Hence, ‘pious obligation’ means responsibility of a Hindu male that is derived from his devotion or faithfulness for his religion. According to Hindu law whoever receives a loan or similar sum and fails to return it to the owner will eventually be born into the home of his creditors as a slave, servant, lady, or quadruple. Hindu scriptures state that a son’s holy and the most significantly pious responsibility is to settle his father’s debts. A Hindu’s son, his grandson , and his grandson’s son are all subject to this religious duty as they are all born coparceners with other people.
According to the popular belief, not paying debts is considered to be a sin (paap), and someone who passes away with debts cannot enter into heaven or paradise (Swarg). By repaying such obligations, the ‘putra’ or the son, grandson, and great-grandson, frees his separated grandfather from the obligation and makes it possible for him to ascend to heaven and, ultimately, achieve moksha. ‘The Doctrine of Pious Obligation’ is a unique doctrine that underpins a son’s duty to repay his deceased ancestor’s debts. This obligation, however, solely relates to loans that are not avyavaharika.
It remains to be seen what Hindu religious texts and Hindu jurists have to say about the notion of Pious Obligation, with an emphasis on what history has to say about it. “If the father is dead, gone overseas, or struck with trouble, his debt should be paid by his sons and grandsons; if on denial, it is proven by witnesses,” states Yajnavalkya. Once more, Narada declares that “the whole merit of his devotions, or his perpetual fire belongs to his creditors when a devotee, or a man who maintained a sacrificial fire, dies without having discharged his debt. Another of Narada’s proverbs reads, “The son who is born should without considering his own interests, sincerely free his father from debts so that he (the father) may not go to hell. According to Hindu jurists, the repercussions of not paying a debt are not only temporary but the debtor’s debts also follow him into the next world. According to Brihaspati whoever receives a loan or similar sum and fails to return it to the owner will eventually be born into the home of his creditors as a slave, servant, lady, or quadrupled.
As per Indian legal literature and customs from bygone times, fathers aspired for a son because they believed he would settle their debts, both material and spiritual. Given that the son’s pious obligation is founded on religious authority, it follows logically that the son is not obligated to pay his father’s irreligious debt. The arguments for this are as follows: To start, there are religious authorities that release sons from their obligation to pay their father’s irreligious obligations, just as there are religious authorities that force sons to repay their father’s debts. Secondly, forcing the son to repay an irreligious obligation would be like asking the father to contribute to and intensify his own irreligious behavior. The son is obligated to pay the principal amount plus the interest when it is stated that paying off the father’s debts is a pious duty owed by him and his descendants. In contrast, the grandson is only expected to pay the principal amount, and the great-grandson is only expected to pay up to the extent that he possessed joint family property. Although the son and grandson were individually accountable, he was not. In the Sat Narain v. Rai Bahadur Sri Kishan Das case, the Privy Council made an observation that the notion of pious obligation was founded on the son’s pious need to settle their father’s debts rather than the need for the protection of third parties.
Initially, there was such a heavy focus on debt repayment that the Dharmashastra’s rules required a man to pay his father’s obligations first if he had to pay his own debts as well as the debts of his father and grandpa, with the grandfather’s debts coming due first.
WHAT TYPE OF DEBT IS TO BE REPAID ?
Hindu law states that, if the debts are not avyavaharika, a son has a religious duty to pay off his father’s obligations from his inherited property, even if the son has not benefited from the loans. The sons are released from their duty to use family assets to pay off their father’s debt, even if the loan was tainted by immorality or illegality.
Given that the son has a moral and religious duty, it is important to consider the circumstances surrounding the debt’s original acquisition while assessing the son’s accountability. If nothing unlawful or immoral existed from the outset, the father’s later dishonesty would not have been justified. When discussing the theory of pious obligation, which entails a son’s responsibility to settle the debts of his ancestors, it is important to acknowledge that there are two categories of loans: Vyavaharika and Avyavaharika. The sole religious duty a son has is to settle the Vyavaharika debts—debts obtained via legal means—of his forefathers. Debts of Avyavaharika are not enforceable against sons. Now, in the context of Vyavaharika obligations, it is a legitimate debt—that is, obligations that are due but not immoral, unlawful, or in conflict with the law or public policy—for which a father may transfer family properties, in contrast to his sons. Any debt that is not incurred as an act of irresponsibility, extravagance, or unlawful pleasure-seeking will be enforceable against sons. Sons are responsible for paying their father’s debts, including phone bills, mesne earnings, and profit-related torts. Debts incurred for the sake of conducting business, defending oneself in court, etc are enforceable against sons. When it comes to Avyavaharika obligations, a son is not responsible for covering his ancestor’s obligations. Debts taken on for purposes that were not permissible under religious principles or a person’s dharma could not place further responsibility for repayment on the son or male heirs. Sons had no spiritual responsibilities or religious obligations to pay when they paid off debts classified as avyavaharika. “A son must pay a debt contracted by the father, except those debts which have been contracted from love, anger, spirituous liquor, games, or bailment” Narada once remarked. “ A father must not pay the debts of his son.” Pious obligation, on the other hand, refers to the duty of the departed Hindu man’s sons, grandsons, and great-grandsons to settle his vyavaharika obligations in order for his spirit to rest in peace in paradise. As co-parceners of the deceased, meaning they are part of the fourth generation counting from the deceased, sons, son’s sons (grandsons), and son’s son’s sons (great-grandsons) are obligated to settle the debts of their father’s, father’s father, and father’s father’s father. They have no personal accountability, and the amount owed will be deducted from their portion of the ancestral property based on who is responsible for paying back the loan at the time.
However, it should be mentioned that even in cases of vyavaharika debts, there are situations in which a son is both accountable and not liable for payment.
- If the debt was incurred by the father while the coparcenary was still in place, the son is responsible for covering the cost.
- If a debt is incurred before to division, the son is responsible for paying it back, but repayment occurs after partition.
- If a son’s father took on debt after the joint family property was divided, he is not responsible for paying it back since he has already separated and taken possession of his half, which is now his personal property.
DOCTRINE OF PIOUS OBLIGATION AFTER THE AMENDMENT OF 2005
Following the enactment of the Hindu Succession (Amendment) Act, 2005, no court shall acknowledge the right to pursue legal action against a son, grandson, or great-grandson in order to recover any debt owed from his father, grandfather, or great-grandfather, based solely on the former’s obligation to pay off the debt in accordance with Hindu law. However, in accordance with Section 6, subsection 4(b) of the Hindu Succession modification Act, 2005, the sons and descendants shall be accountable for payment if such debt is incurred prior to the 2005 modification. After Hindu law amendments, what’s left of the pious obligation convention is the unfairness of the son’s pious obligation to pay his father’s debt. This means that, even in his later years, the father may seize his son’s and his own joint family property to satisfy personal debts he caused that were neither important nor necessary for the family. This is the leftover, which defies logic and justification. Nonetheless, it is a justifiable and reasonable outcome of the son’s inheritance from the joint estate.
DOCTRINE OF PIOUS OBLIGATION AND WOMEN
In order to challenge the biased status quo in politics, society, and many other important domains, feminist groups have challenged “male-stream” thinking. After the Hindu Succession Amendment Act of 2005 went into effect, daughters have undoubtedly also joined their father as coparceners on his property. Section 6 subsection 1 and clauses a, b, and c provide information that leads one to the basic conclusion that daughters , as coparceners of their father’s property like males, have the same rights and obligations as sons.
Therefore, daughters would have also been required to settle their father’s vyavaharika obligations if the theory of Pious Obligation had been in place at the time. However, when an amendment was enacted in 2005, daughters are no longer obligated to repay their father’s debt of any sort under section 4, as stated above, with the exceptions listed in clauses a and b of the same.
LANDMARK CASES
1.Keshav Nandan Sahay Vs. The Bank of Bihar, AIR 1977 Pat 185, 1977 (25) BLJR 543
It was believed that sons are accountable for their father’s preparatory debts on the idea of pious obligation. As a result, the woman is not subject to the same legal notion of pious responsibility as her sons and is not accountable to creditors on the same grounds. The wife is entitled to a share on a split between a coparcener and his sons; she cannot be regarded as the husband’s lone representative. The foundation for this notion comes from old Hindu writings that do not include the woman among the sons, and no law has been passed to amend this theory to include her.
2. Ramasamayyan v. Virasami Ayyar ,(1898) I.L.R. 21 Mad. 222)
If a creditor executes a mortgage judgment to realize a debt that the father is personally obliged to repay, they can sell the estate without obtaining a personal decree against the father, even if the mortgage is not for legal necessity or payment of prior obligation. Once the sale has occurred, the son cannot back out of it unless he can demonstrate that the debt never happened or was tarnished by immorality or unlawful activity.
SOCIO-LEGAL IMPACT OF THE DOCTRINE OF PIOUS OBLIGATION
The teachings of pious obligation have a socio-legal consequence that is incongruent with current tendencies un exclusive jurisprudence. The current state of Hindu law, which has been altered by several Acts, gives Hindu women the absolute right to own property. It is incomprehensible to justify taking away a son’s idea of jointly owned property from the teachings of pious obligation at the point where a woman’s restricted estate has been abolished. Given the current effects of the Supreme Court’s Chandersen judgment, it is important that the regulations pertaining to religious obligations be changed to absolute obligations and brought closer to the Dayabhaga school of Hindu law.
CONCLUSION
Based only on long-standing religious customs and norms, the doctrine of pious obligation holds sons, sons’ sons, and sons’ sons liable to pay off their father’s debts. It invariably preaches that the father’s debts must be vyavaharikai, or lawful and not immoral. The theory of religious duty cannot be used if the debts are either avyavaharika or not vyavaharika. Unless the debts were accumulated for immoral or unlawful motives, the sons are responsible for paying any debts that the father incurs for his benefit during the period when he and his sons are coparceners to the joint family property. The sons’ obligation-based accountability has evolved into a legal liability; nevertheless, this culpability does not apply to obligations that are contaminated by immorality. The boys’ stake in the joint family property is the only thing that may be sued by the father’s creditor, making the responsibility limited to that interest rather than the sons’ personal property. The son cannot be held accountable if it is discovered that the debt was taken on by the father after the divorce. However, if the debt is pre-partition, the sons’ portion would still be accountable after the divorce as long as the father’s obligations are not immoral or unlawful. In the event that the debt is pre-partition, the sons’ portion would remain payable even after the division, provided the father’s obligations are not unlawful or immoral and no repayment plan is included in the partition agreement. It should be emphasized once more that, as of 2005, when the Hindu Succession Act was amended, girls are also coparceners to their father’s property, with the same rights and obligations as sons. However, since the 2005 amendment eliminated the theory of Pious Obligation, sons and daughters are not required to settle the debts of their ancestors.
REFERENCES
- Aequivic.in,https://www.aequivic.in/post/aijacla-the-doctrine-of-pious-obligation-and-its-relevance-under-the-hindu-law-in-the-present-time,(13 October 2023)
- Linkedin.com,https://www.linkedin.com/pulse/doctrine-pious-obligation-before-after-2005-amendment-chetan-hiremath,(13 October 2023)
- Papers.ssrn.com,https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4384255#:~:text=The%20doctrine%20of%20pious%20obligation,grandfather%2C%20and%20great%2Dgrandfather,(13 October 2023)
- Racolblegal.com, https://racolblegal.com/doctrine-of-pious-obligation/ ,(13 October 2023)
