Doctrine of Pious Obligation and Antecedent Debts

DOCTRINE OF PIOUS OBLIGATION AND ANTECEDENT DEBTS

Under the Hindu mythology and the digests of the Hindu religion, repayment of debts is considered to be an important aspect of the Hindu mythology and plays an important role at the time of the death of the person. It has been said by various Hindu sages and digests that if a person do not repay the debt of a person then he will re-born as a slave or servant in the house of creditor Hindu sages also said that if a Hindu dies indebted it is the duty of his son to repay all the debts. This is the religious or pious duty of the son to discharge his father from the sin of non repayment of debts.

DOCTRINE OF PIOUS OBLIGATION

Pious means religious and obligation means duty or responsibility. So according to this doctrine, Hindu mythology has inflicted the moral or religious duty on the son to discharge his father fully from all the debts that he has taken in his life. These debts are to be discharge from the ancestral property of the family that he holds. The sole motive of inflicting this obligation on to the son is that, if he succeeding the property and certain rights of the family, then why not the responsibilities Not only to the son, the same kind of obligation has been inflicted upon son’s son son’s son’s son to repay the debts of grandfather and great-grandfather.

As discussed above, it is considered as that the non-repayment of the debts leads to the positive sin and this is the duty of the son to save the father from the consequences of being died indebted, as also said by the Hon ble Supreme Court in the case Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain

. This is the case which firstly recognized this doctrine of pious obligation and said that the doctrine has its roots back in the time when Smritis used to be the source of law for Hindus.

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The older approach is that the son, son’s son, son’s son’s son must repay all the debts, but in the modem Hindu law, the approach is changed. It says that now the responsibilities of son, grandson and great grandson are co-extensive, which means they are only liable for the debt of amount which is equal to the ancestral property they hold, it limits the liability of whole. They can not be held liable personally or a creditor can not claim his debts from their personal property. They are only liable for the amount which they hold in the form of ancestral property. Also, previously there was the distribution which says son is liable to pay the whole debt and the grand son and grandson for principal amount but now it has been changed, now all the three generations are required to pay off the whole debt equally. The doctrine of the pious obligation is logical corollary to the son’s birth right, which means as soon as the son bom in the family he already created a liability of paying off debts just like he attain the right of succession. The said concept is not recognized under Dayabhaga School. The said concept has been done away by the Hindu Succession (Amendment) Act, 2005.

Avyavaharika debts-

The said doctrine has an exception to it, which is that a son is not liable to pay of such debts which are taken by his father for Avyavaharika nature. Avyavaharika is the Hindi translation of immorality in ancient Hindu texts. Avyavaharıka debts can be consist of such debts which are taken by the person for some immoral or unlawful cause like gambling, bribing etc. The unlawful debts are those which arise out of a breach of law, for instance, debts that are incurred in the course of an act punishable by the Penal Code or any other statute imposing penalty The doctrine says that if the debts of the father come under the category of Avyavaharika debts, then there is no obligation to pay such debts on son, grand son etc. In the case of Raghothaman v. Kannappan (AIR 1982 Mad 235)

, it was held that the sons are not liable to pay the post-partition debts of the father. They are only liable for the debts which have been taken by their father before the partition. This term “Avyavaharika debts” is explained by the Hon’ble Supreme court in the case of S.M. Jakati and Ors. Vs. S.M. Borkar and Ors. (AIR 1959 SC 282).

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Time barred debt-

Under the Modem Hindu law, no Hindu is bound to pay his time barred debt, consequently sons are also not liable. But the existence of promissory note which says that the sons will pay the debt and then the alienation has taken place, then that promissory note is binding on sons and created a liability for them to repay the debts. Time barred debts are not considered as avyavaharika debts.

Limitation to the doctrine-

The said doctrine is limited to the sons of the family, it do not discharges the liability of paying debts to daughters or wives of the family, irrespective of the fact that they have the interest in ancestral property or not. In the case of Keshav Nandan Sahay Vs. Bank Of Bihar (AIR 1977 Pat 185), it was held that the doctrine of pious obligation for paying of debts can not be enforce against the female sharers of the ancestral property, as they are out of the ambit of said doctrine. They can not be made liable to repay even though they inherited the share of ancestral property

DOCTRINE OF ANTECEDENT DEBTS

Antecedent debts refer to the legal obligation of paying debts prior to the time. The doctrine of pious obligation is further extended by laying down that the father himself can alienate the joint property for the discharge of his personal debts or any legal necessity and the sons can challenge it if the debt is tainted. The sons under the pious obligation are expected to pay the debts from the ancestral property which they have inherited but the other way to pay off such debts can be payment of debts from the ancestral property by father himself Which means the liability to pay off debts of father is on sons, irrespective of the fact that father is alive or dead.

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Lord Dunedin of the Privy Council defined the antecedent debts. The two mandatory conditions for the antecedent debts are:

1. The debt must be prior in time –

It means that in point of time the debt must precede the alienation. For instance, the debt is taken on 19th October 2000 and the alienation of the property has taken place on 19th September 2001 then it is a valid condition, as debt if taken first and the alienation is made after it

2. The debt must be prior in fact –

It means that the alienation and debt should not be a part of same transaction, there should be two independent and separate transactions for alienation and debt.

In the case of Prasad and others vs. govindaswami Mudaliar and other, Hon’ble Supreme Court held that if the father pays off his any debt from the joint family property, he is legally bound to that and the same is binding on the sons. But the said thing applies when the two given conditions would fulfill:-

1. The debt was antecedent to the alienation and,

2. It was not incurred for an immoral purpose.

Thus the doctrine empowers the father to alienate the joint family property in order to pay off his debts which are taken for moral cause before the alienation in time and fact.

Both the doctrines have the legal and religious binding and obligations. But both of the doctrines have the limitations to them. Non- inclusion of daughters or wives to pay off the debts is kind of sign of hypocricy as they have the full rights to inherit the property but no obligation or responsibility to pay off the debts This created a gender biasedness amongst the family. Every right comes up with the responsibility or obligation for sons but the same doctrine or statute exempt the women heirs, which is kind of gender biasedness. If women can demand equal rights then why not the equal sharing of responsibilities.

Author: Riddhi Agrawal,
Amity University, GWALIOR 3rd year

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