The distinction between the doctrine of pious obligation as recognised by the Dharmasastras and as applied by modern judicial decisions has been pointed out by Mukherjea, in Panna Lai vs. Naraini, 1952 SCR 544. The features of distinction are as follows.
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(a) As to when the doctrine becomes applicable:
According to the Smriti Law the pious obligation of the sons to discharge the father’s debt arises on his death. Exceptionally it arises even during his lifetime when he is afflicted with disease. According to the modem doctrine the obligation arises in all cases even during the lifetime of the father.
ADVERTISEMENTS:
In Sahu Ram v. Bhup Singh, 39 All. 437 (PC), Lord Shaw made an attempt to go back to the ancient rule and make the son liable only after the father’s death. But it was too late to do so for the current of decision to the contrary was too strong to be resisted. Lord Dunedin in the later case of Brij Narain v. Mangal Prasad, 46 All. 951 (PC), reiterated that the doctrine of pious obligation applies even during the father’s lifetime.
(b) Who are the Persons Bound:
Under the ancient doctrine the son is liable to pay with interest; the grandson without interest; the great-grandson has no liability unless he had received property from the ancestor. According to the modern doctrine the son, grandson and great-grandson are all bound and they have all to pay interest also on the debt.
(c) What Property is bound?
Under the old doctrine the pious obligation existed independently of property. It was personal liability. So self-acquired property was also liable for pious obligation debts. Now, self-acquired property of the son, grandson or great- grandson is not liable at all. It is only when there is coparcenary property that the pious obligation now exists. The interest of the son in the coparcenary property becomes, liable for the debt.
(d) For what debts the doctrine can be invoked:
Both under the old and the modern doctrines exist certain exceptions, e.g., avyavaharika debts. Avyavaharika debts are debts for illegal or immoral purposes. They do not attract the doctrine of pious obligation. If the father has incurred a debt for immoral purposes, the coparcenary interest of the son would not be liable.
ADVERTISEMENTS:
At the present day, if the son has inherited any separate property of the father, to the extent he will have to pay up the father’s debts incurred for any purpose whatever, even when they were incurred for immoral purposes. For the father’s commercial debts there was no pious obligation in ancient times but now there is pious liability for such debts.
The basis of the doctrine of pious obligation was the belief that nonpayment of a debt was a sin. So the father’s soul would be tormented unless he is relieved of his unpaid debts. The son is under a pious duty to relieve his father from such torments in hell by paying his debts. When the debts were tainted with illegality or immorality the son could not be saddled with this pious obligation.
The difference between the father-manager and any other Manager is clearly brought out in the decision of the Supreme Court in Faqir Chand v. Harnam Kaur, AIR 1967 SC 727. The father mortgaged the property and the mortgagee obtained a morgage-decree against him.
The sons brought the suit for a declaration that their share in the coparcenary property is not bound by the decree and cannot be brought to sale. They proved that there was no legal necessity or benefit to the estate. If the manager had been anyone other than the father this would have been sufficient for their success in their suit. But the alienor was the father.
ADVERTISEMENTS:
The Supreme Court held that the sons in such a case can succeed only when they can show that there was no binding antecedent debt for if there is such a debt the father (Whether or not he is the manager) can alienate the property so as to bind the share of the son. This is because of the pious obligation of the son to discharge the father’s debts.