Theory of Pious Obligation of a Son to Pay Debts of Father–Explained!

The doctrine of pious obligation is not based on any necessity for the protection of third but is based on the pious obligation of the sons to see their father’s debts paid. (Sat Narain v. Sri Kishen Das, 63 LA. 384: A. I.R. 1936 P.C. 277). The doctrine of pious obligation under which sons are held liable to discharge their father’s debts is based solely on religious consid­eration.

It is thought that if a person’s debts are not paid and he dies in a state of indebtedness, his soul may have to face evil consequences, and it is the duty of his sons to save him from such evil consequences. The basis of the doctrine is thus spiritual and its sole object is to confer spiritual benefit on the father.

It is not intended in any sense for the benefit of the creditor. The doctrine inevitable postulates that the father’s debts which it is the pious obligation of the sons to repay must not be avyavaharika. If the debts are not vyavahrika, or are avyavaharika, the doctrine of pious obligation cannot be invoked. (Luhar Amrit Lai Naggi V. Doshi Jayantilal Jethlal, A.I.R. 1960 S.C. 964).

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The doctrine of pious obligation applies (or the liability of the sons to pay father’s debts exits) during the life time as well as the death of the father. Muniswami v. Kuitty, A.I.R. 1933 Mad. 708 and Thadi Murali Mohan Reddi v. Medapati Gangaraju, 197 I.C. 199: A.I.R. 1941 Mad. 772 (F.B.)].

The creditors can proceed against the entire joint family properly for the debt of the father (grandfather and great grandfather included) during his life time and after his death provided that debt is not tainted with illegality or immorality. If the debt is so tainted there is no liabil­ity on the on the son for its payment. It should, however, be noted that the son cannot be sued alone during the father’s life-time.

The Vanniya Tamil Christains of Chitur Taluk are governed by the Mitakshara School of Hindu law in regard to inheritance and succession. The son of a member of such community gets by birth an interest in ancestral property owned by the father. The doctrine of pious obligation applied and the son in bound to discharge his father’s debts not tainted by illegality or immorality.

The doctrine of pious obligation is not merely a religious doctrine but has passed by the relam of law. It is a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property, and both these conceptions are correlated.

The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu law but is a salutary counterbalance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property, it is therefore, not possible to accept the argument that, though the community of Vanniya Tamil Christains of Chittur Taluk is governed as a matter of custom by the Mitakshara School of Hindu law, the doctrine of pious obligation is not applicable.

(Anthonyswami v. Chinaswami Koundan, A.I.R. 1970 S.C. 223: (1969) 2 S.C.W.R. 706). The doctrine of pious obligation is an integral part of the Mitakshara School of Hindu law. It is in consonance with Justice, equity and good conscience and is not opposed to any principle of Christianity.

In V. Narasimhulu v. V. Ramayya, A.I.R. 1979, A.P. 36 it has been laid down that a father as a manager of a joint family can mortgage the family property and incur debts. He represents the family as a whole, when be incurs the liability. The sons cannot impeach the mortgage unless the debt is for illegal or immoral purposes. The sons are bound to pay the debt by virtue of the terror of pious obligation.

There was conflict of opinion between the High Courts of India on the point whether any pious obligation on the sons to pay the debts of the father exists in the life-time of the father or whether the pious obligation arises for the first time after the father’s death. The difference of judicial opinion has been set at rest by the decision of the Privy Council in the leading case of Brij Narain Rai v.

Mangla Prasad, 51 I.A. 129 A.I.R. 1924 P.C. 50. Their Lordships of the Privy Council held that the sons were liable for the father’s debts, whether the father was alive or dead when the liability attached. This decision modified the old Hindu Law, on that point. According to ancient Hindu Law this liability of the sons did not arise until after the death of the father.’

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 it is a liability 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 contracted by the father are not immoral or irreligious, the interest of the sons in the coparacenary property can always be made liable for such debts.

It has been further held that to saddle the sons with this pious obligation to pay their father’s debts, it is not necessary that the father should be the manager or karta of the joint family or that the family must be composed of the father and his sons and no other member. It is also not necessary that the sons should be made parties to the money suit or to the execution proceedings. (Sidheswar Mukherjee v. Bhubneshwar Prasad Narian Singh. 1954 A.L.J. 54: (1954) S.C.R. 177: A.I.R. 1953 S.C. 487).

The pious obligation of the sons to discharge the father’s debts lasts only so long as the liability of the father subsists. The son’s liability is neither joint nor joint and several. An illustration can be given in order to elucidate the point. Suppose the father is adjudged insolvent for the debt incurred which release the father from the debt. As no suit can be filed against the father in respect of debts, none can be maintained against the sons in re­spect of that debt.

The son in not liable for a debt contracted by the father after partition. But the son is liable after partition for a debt con­tracted by the father before partition. ( Annabhat v. Shivappa 110 I.C. 269 : A.I.R. 1928 Bom. 252 ; Bankey lal v. Durga Prasad, 135 I.C. 139 : A.I.R. 1931 All. 512 ; Subramania v. Sabapati 51 Mad. 361 : A.I.R. 1928 Mad. 657 F.B. : (firm Govindram Dwarkadas v.Nathulal, A.I.R. 1937 Nag. 45 etc.).

After partition it is necessary that he creditor should institute the suit against the father as well as against the son so that the decree can be executed against the son. (Firm Govindram Dwarkadas v. Nathulal, I.L.R. 1938 Nag. 10 and Atul Krishna Roy v. Nandji (1935) 14 Pat. 732 F.BL A.I.R. 1935 Pat. 275.).

In the Case of Panna Lal v. Naraini, A.I.R. 1952 S. C. 170, the Supreme Court has held that a son is liable even after partition for the pre-partition debts of his father which are not immoral or illegal and for payment of which no arrangement was made at the time of the partition of the joint family property.

It has further held that a decree passed against the separated sons as the legal representatives of the deceased father in respect of a debt incurred before partition can be executed against the shares obtained by such sons at the partition and this can be done in execution proceedings and it is not necessary to bring a separate suit for the purpose.

According to the Supreme Court the major­ity decision in Atul Krishna Roy v. Nandji, 14 Pat. 732 over­looked the point that Sec. 47 C.P.C. could have no application when the decree against the father was sought to be executed against the suns during his life-time and consequently the liabil­ity of the latter must have to be established in an independent proceedings. In cases under Sees. 50 and 52 C.P.C., on the other hand, the decree would be capable of being executed against the suns as legal representatives of their father.