PIOUS OBLIGATION

HINDU LAW

CHAPTER-15

• PIOUS OBLIGATION 

(i) Doctrine                                          

(ii) Avyavaharika Debt.

PIOUS OBLIGATION

(i) Doctrine of pious obligation 

i) orgin : 

This doctrine has its origin in the sacred Hindu texts. Brihaspati said:’ He who incurs a debt but does not repay to the creditor, will be born thereafter in the creditor’s house, as a slave, a servant or a quadraped’. Narada said that the debtor’s ‘devotion’, would vanish if he dies a debtor. These were based on the principle that ‘moral’ obligations took precedence over legal rights. 

In Amritlal v. Jayantilal (1960), the Supreme Court explained this doctrine: 

If a person dies a debtor, his soul may have to face, evil consequence and it is the duty of the son to save his father. The basis of the doctrine is “Spiritual” and the sole object is to confer spiritual \         benefit on the father. Hence, It is not intended in any sense for the benefit of the creditor. 

ii) Liability: 

According to the above commentators a debt is a ‘runa’ and there is a religious duty to discharge from the sin of the debt. This duty called pious duty is on the debtor, his son’s son, and son’s son’s son, only. This will not extend to any further descendants, nor to any ancestors. 

iii) Exemption: 

As the liability is moral or religious, it follows that the liability extends only to the moral or religious debts. It does not include-illegal or immoral debts. The smritis mentioned: as illegal or immoral:   

a) Debts for spirituous liquor 

b) Debts due to lust. 

c) Debts due for gambling. 

d) Unpaid fines and tolls 

e) Debts due for anything idly promised, 

f) Avyavaharika debts, etc, 

Later the word ayvayaharika become applicable compendiously to denote all illegal, immoral and unlawful debts and all debts the, cause of which is repugnant or against good morals (Colebrook). Further, the son is not liable for the criminal acts of his father. 

In Ramasubramaniam v. Sivakami Animal, two principles were laid down: 

1. It the debt was not illegal at the time of taking, then subsequent dishonesty of the father will not make the debt immoral. 
2. Every lapse from right conduct will not make the debt immoral. 

iv) Time barred debts: 

According to the Limitation Act period of limitation is 3 years (Art. 120). This is applicable to the son and the grandson etc. (Under “pure Hindu law there was no period or limitation). The liablity under pious obiligation exits whether the father is alive or dead. 

v) Extent of liability: 

The liability to pay the debts extends to the extent of coparcenary, intrerest and does not run against the person or his separate property Siddeswara Mukerjee V. B. Prasad (1953). It is not a personal liability, In Pannalal V. Narayani: it was held that, if after partition, a decree is obtained by the creditor against the father, in respect of prepartition debt, it cannot be executed against the son.   

(ii) Pious obligation and avyavaharika debts: 

1. The doctrine of pious obligation is based on spiritual and moral obligation of the son to save the father’s soul from evil consequences. The son, son’s son, and son’s son’s son- are liable for such debts. 

Though this is the rule, there are many exceptions. Illegal or Immoral debts, Avyavaharika debts etc. are exceptions. 

[Abolished by the Hindu Succession Act 2005 see supra] 

2. Meaning: 

“Avyavaharika debt” is not defined. It includes all debts which are “not lawful, usual or customary”. According to Colebrook ” It is debt for a cause, repugnant to good morals”. 

3. The leading case is : Hernraj V. Khemchand: 

F and B, were brothers; The court had issued a decree against F to handover a promissory note to a B. F did not handover in time. B Suffered loss, Held this debt survived to the son of F, under pious obligation. 

4. Examples of Avyavaharika debt: 

i) Fine imposed on F (father), in criminal cases 

ii) Damages awarded against F for malicious prosecution. 

      iii) illegal trading in opium and debt etc. 

5. Antecedent debt: 

The liability of the son continues in rspect of an “antecedent debt” incurred by the father, and, will not end on the death of the father. 

In antecedent debt, there are two separate transactions:-

1. A debt incurred by father 
2. A subsequent transaction by way of mortgage, sale etc. to discharge the earlier debt. 

It the “debt” is not immoral, the second alienation is valid, and, will be biding on the Sons, under pious obligation. 

Cases: 

(i) Brig Narain v. Mangal prasad: 

 Sitaram F had two minor sons SI and S2. F mortgaged joint Hindu family property called “X” to A; Later he executed a second mortgage on the same property to B. 

After two years he executed a third mortgage to pay off the earlier two debts, to “C” After 4 years ‘C’ sued F on mortgage. It was held that the objective of the third martgage was to discharge the eariler two debts. 

Held, C was entitled to succeed under pious obligation. The reasons were: The debt was not for illegal or immoral purposes; the third mortgage was to discharge earlier debts (that is antecedent debt); the antecedent debt was a debt in fact as well as in point of time, and was an independent transaction. 

(ii) Faquir Chand V. Harnam Kaur: 

 The Supreme court held that the rule relating to antecedent debt was applicable whether the debt is secured or unsecured. 

A joint family had M (father) and his son S. M borrowed Rs; 

75,000/- and mortgaged joint family property to discharge earlier mortgage loan and other purposes. M Claimed that the mortgage was not for legal necessity and hence he was not liable. 

Held, M was liable, as this antecedent debt not an avyavharika debt

(iii) Prasad v. Govindaswamy 1982 (Supreme Court). 

Conclusion: 

The doctrine of pious obi igation fixes pious duty on son to descharge the liability of father, in regard to “antecedent debt”. This debt according to Dunedin, means: a debt antecedent in Fact and in time, that is it should be truly antecedent and not part of the same transaction which has been questioned in the court.  

If the purpose is tainted with illegality or immorality, it is not for legal necessity, the doctrine of pious obligation applies. But, if it is to discharge an earlier debt, the liability continues and the son becomes liable. 

Abolished by the Hindu  Succession  (Amendment) Act, 2005,  

Hence no court shall recognise 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 the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:  

Exception    

1. Debts before 2005 Act 
2. To a partition made before 20/12/2004 (“partition” means any partition made by execution of a deed of partition duly registered under the Registration Act,     or partition effected by a decree of a court.’.