Concept of Vyavaharika and Avyavaharika debts

Concept of Vyavaharika and Avyavaharika debts

Introduction

A son, under the Hindu law, is considered to be in a pious relation to relieve debt of his father from the ancestral property, if debts are not Avyavaharika . A son can’t claim that he had not been benefitted from the debt. The case where son can get absolvement is if the debt was one spoiled with illegality and immorality. 

The character of debt first incurred will decide the liability of the son, that is to be cast upon him either religious or moral and the son can only be relieved from the liability if it was dishonesty acquired by his father initially. Dishonesty from his father subsequently, will not absolve the liability of the son.

Even Saints from Hindu Mythology suggests to pay all the debts before death or by your son, otherwise will have to repay the debt in your next birth. This is the religious and pious duty of the son to repay the debt and free him from the sin of non- repayment. This the the moral and religious duty of the son to repay the debt of his deceased father. Let’s have a look in detailed way.

Doctrine of Pious Obligation

Pious obligation can be termed as religious duty that what is casted upon a son to repay every single penny of debt acquired by his father legally and morally from the ancestral property of him. The sole motive to inflict this burden on the son to make him responsible in debt also if he is enjoying the ancestral property of his father. Not only son this has to continue with his son, grandson and great-gradson is only liable to pay.

Siddheshwar Mukherjee vs. Bhubaneswar Prasad Narain is the first case which recognised pious obligations, giving a reference of the Smriti which was used to be the source of law.

The older approach was to pay the whole debt by the son, grandson and great grandson, but in modern Hindu law, now,  they are only liable to pay the equivalent to their ancestral property they hold, it limits the liability of whole. They are not liable to pay the debt from his personal property. All the three generations are equally liable to pay off the whole debt, unlike, earlier when Son has the duty to pay off the whole debt but, grandson and great- grandson only principal amount. The doctrine of the pious obligation is logical corollary to the son’s birth right, which means as soon as the son is born in the family, he is liable to pay off the debt same as succession. But the said concept is done away by the Hindu Succession (Amendment) Act, 2005 and the said principle is also not recognised under Dayabhaga system.

Avyavaharika Debt

A debt when not acquired morally and legally is said to be “Avyavaharika” and this relieve the son from paying off the debt after his father. This doesn’t cover only illegal or Immoral debts, but also what court regards as unjust and unequitable.

The term ‘Avyavaharika’ means which is not lawful, moral and not admissible in the law under normal circumstances. Colebrook translated the term as “a debt for a cause repugnant to good morals”, and this definition was approved by the Privy Council in S.M. Jakati v. S.M. Bokar (A.I.R. 1959 S.C. 282), as being the nearest approach to the true conception of the term used in the Smritis.
Avyavaharika debt includes losses at play, promise under influence of lust, alcoholic drinks etc.
Raghothaman v. Kannappan (AIR 1982 Mad 235)

This case held that son is not liable for any post- partition debt but for only that was taken pre- partition 

The term ‘Avyavaharika debt’ is explained in a judgement of Supreme Court that is S.M. Jakati and Ors. Vs. S.M. Borkar and Ors. (AIR 1959 SC 282).

Time barred debts 

Under the modern Hindu law, without any existence of promissory note claiming the son to pay off the debt , there is no obligation on the son for the time- barred debt.
Time barred debt is not considered as ‘Avyavaharika’.

Limitations of the doctrine

The doctrine can make only sons liable to pay the debt, but not wives and daughters of the family, even if they inherit the ancestral property.

In the case of Keshav Nandan Sahay Vs. Bank Of Bihar (AIR 1977 Pat 185), the court held that, daughters are out of the ambit of the said doctrine and hence, not liable to pay off the debt, irrespective of the fact that daughter is holding property or not.

Doctrine of Antecedent debt

Antecedent legally means paying debt prior to time. Antecedent word means ‘prior’ or ‘preceding in point of time’. But Lord Dunedin defined the antecedent debt as “antecedent in fact as well as in time”. Thus, two conditions are necessary—

(a) The debt must be prior in time- This can be explained as in point of time of debt must proceed alienation


(b) The debt must be prior in fact- Debt and alienation cannot be in same transaction and requires separate for debt and alienation. 

This further extends like father himself can alienate the joint property to relieve from the debt but son can challenge it if debt is tainted. 

Under Prasad and others vs. govindaswami Mudaliar and other case, Supreme Court held that father is legally entitled to to pay off his debt from joint family property and so if son. But it will be allowed only if these two conditions will fulfill:
1. The debt was antecedent to the alienation and,
2. It was not incurred for an immoral purpose.

Pious obligations after Amendment of 2005

After the initiation of the Hindu Succession (Amendment ideal to continue against a son, grandson or incredible grandson for the recuperation of any debt due from his father, grandfather or awesome grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or extraordinary grandson to discharge any such debt. 

See also  Powers of karta

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