Meaning of Avyavaharik Debt:
There has been some difference of judicial opinions as to the precise meaning of the word “Avyavaharik”, but the best rendering is that given by Justice Mukerjee, according to whom it is a debt “equivalent to not lawful, useful or customary”.
Image Source: creditwritedowns.com
Colebrook translated it as “a debt for a cause repugnant to good morals.” Whether a debt is immoral or not is to be decided with reference to the time when it originated and the rule is not rigid but has to be applied with reference to the circumstance of each case. The sons, grand-sons and great grand-sons are not under an obligation to pay Avyavaharik debt of the father.
Avyavaharik Debt according to the Ancient Texts:
ADVERTISEMENTS:
The Mitakshara explaining the Avyavaharik Debt has laid down that sons are not bound to pay to the wine-seller and the rest, i.e., to the winning gambler, to the mistress and others. The explanation shows that there should be direct connection between the debt and the immorality exonerating the male descendants from the liability of paying the same. It must be proved that the particular debt was contracted for an immoral purpose.
Vrihaspati says that “the sons are not compellable to pay sums due by their father for spirituous, liquor, for losses at play, for promises made without consideration or under the influence of lust or of wrath, or sums for which he is surety, or for a fine or a toll or the balance of either.”
Manu says that “money due by a surety, or idly promised, or loss at play, or due for spirituous liquor, or what remains unpaid of a fine and a tax or a duty the son shall not be obliged to pay”.
Yajnavalkya says that “if the father is dead or gone to a distant place, or laid up with an incurable disease, his sons and grand-sons shall pay his debt but the son shall not be made to pay the debt contracted for wine, lust or gambling or due on account of the unpaid portion of a fine or toll, on account of an idle promise”.
ADVERTISEMENTS:
Narad says that “money due by a surety, a fee due to the parents of a bride, debts contracted for spirituous liquor or for gambling and a fine shall not involve the sons of the debtor”.
The Privy Council in the leading case of Heniraj v. Khem Chand interpreted the term “Avyavaharik” as used in the Smritis and also examined the circumstances under which a son has obligation to discharge his father’s debt. Their Lordships observed:
“Under the Hindu Law a son is under pious obligation to pay his father’s debts to save him from punishment in a future state for non-payment of his debt. As observed by the Board in Girdhari Lal v. Kantoo Lal, “it being the pious obligation of the son to pay his father’s debt, the ancestral property, in which the son as the son of his father acquires an interest by birth, is liable for the father’s debt. In their Lordships view this obligation is not unqualified, for the son is not bound to pay his father’s debt, if the debts are Avyavaharik”.
“If the doctrine of pious obligation is to be given full effect, there cannot be any doubt that the Hindu son should be held liable for every undischarged debt of his father, but the doctrine has a reference to the nature of the debt which creates the liability. In Hanuman Prasad Pandey’s case, it was stated that unless the debt was of such nature that it was not the duty of the son to pay it, the discharge of it, even though it affected ancestral estate, would still be an act of pious duties in the son”.
ADVERTISEMENTS:
The debts in the nature of Avyavaharik are debts which would be comprised in the expression “illegal or immoral debts” and if the debt is such, the son would not be under any obligation to pay it. On the other hand, if the debt is not tarnished or tainted with illegality or immorality, it will be binding on the son.
The Supreme Court in S.M. Jakati v. S.M. Borkar, explained the term Avyavaharik and laid down that it has been variously translated as being that which is not lawful or what is not just or what is not admissible under the law or under normal conditions. Colebrooke translated it as a debt for a cause repugnant to good morals.
There is another track of decision which has translated it as meaning “a debt which is not supported as valid by legal arguments”. The Judicial Committee of the Privy Council has rightly held that the translation of the term as given by Colerbrooke makes the nearest approach to the true conception of the term used in the Smritis texts and may well be taken to represent its correct meaning.
Thus, the doctrine of pious obligation is based solely on religious consideration and postulates that the father’s debts must be Vyavaharik and if the debts are Avyavaharik and tainted with immorality or vice, the doctrine cannot be invoked.
The pious obligation exists whether the father is alive or dead and the father may by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceedings upon a decree for payment of that debt but if he burdens the estate with a mortgage then unless the mortgagee is to discharge an antecedent debt it would not bind more than his own interest and the sons who challenge an alienation must prove not only that the debts were immoral but also that the purchaser had notice that they were so tainted and even if the debt was not for an immoral purpose, the son is not personally liable and his obligation is limited to the assets received by him towards his share of the joint family property. The sum in a debt decree does not become Avyavaharik simply because the father did not pursue the suit properly and therefore, the payment of such debt is no longer a liability upon the sons.
The Orissa High Court in Nrusingha Charan v. Rati Kant Mohanty, held that where a money decree was passed against Hindu father in respect of the amount received by him from the decree-holder by misrepresentation of fact, the liability of the father would be personal and could not be extended to his son under the Hindu Law after his death. Such a decree cannot be executed against son after the death of the father.
Whether a father mortgages the joint family property and incurs debt it cannot be impeached by the sons unless the debt is for illegal or immoral purposes. The sons are bound to pay the debt by virtue of the theory of pious obligation. Therefore, a decree obtained against the father is binding upon his sons also, because the father represents the sons.
When a suit is brought on a mortgage by or against a member of a joint Hindu family in his representative capacity, the other members of the family are not necessary parties to the suit, and the suit will not fail by reason of the non-joinder of those members. The sons can question that decree not on the ground that they were not made parties to the suit, but on the ground that the debt was incurred for illegal or immoral purpose.
The Madras High Court in Kammalammal v. Senthil & others, held that where joint family debt incurred by Karta liability of sons for avyavaharik debt, liability to pay damages as a result of decree in a suit for malicious prosecution against father is ‘avyavaharik debt’, it does not bind the sons. Because the liability of the father would be personal and could not be extended to his sons under the Hindu Law after his death. Such a decree cannot be executed against sons after the death of the father.