CHANAKYA NATIONAL LAW UNIVERSITY

FINAL DRAFT OF FAMILY LAW II

ON

CRITICAL ANALYSIS OF DEBT LIABILITY OF JOINT FAMILY

Submitted to :- Submitted by:-

PROF. POOJA SRIVASTAVA AMOGH BANSAL

FACULTY OF FAMILY LAW II ROLL NO: 1812

4TH SEMESTER
 ACKNOWLEDGEMENT

I would like to thank my faculty PROF. POOJA SRIVASTAVA without the kind and support of
whom the completion of the project would have been a herculean task for me. He took out time
from his busy schedule to help me to complete this project and suggested me from where and
how to collect data.

Acknowledges are also due to my friends who gave their valuable and meticulous advice which
was very useful in writing the project.

I would also like to express my gratitude towards the library staff for working long hours to
facilitate us with required material going a long way in quenching our thirst for education.

I would also like to express my gratitude towards my parents and all those unseen hands that
helped me out at every stage of my project.
 DECLARATION

I hereby declare that the work reported in the BBA.LL.B. (Hons.) Project Report entitled
“CRITICAL ANALYSIS OF DEBT LIABILITY OF JOINT FAMILY” submitted at Chanakya
National Law University, Patna is an authentic record of my work carried out under the
supervision of PROF. POOJA SRIVASTAVA. I have not submitted this work elsewhere for any
other degree or diploma. I am fully responsible for the contents of my Project Report.

AMOGH BANSAL

Roll No. 1812

 RESEARCH METHODOLOGY

AIMS AND OBJECTIVE

 The researcher has undertaken this research to find out the debt liability of a joint family
and critically analyze pious obligation of son and obligation of daughter as per Sec 6 of
Hindu Succession Act.

METHOD OF RESEARCH

 The researcher will opt for doctrinal method to work on this project topic.

METHODS OF DATA COLLECTION

 For the purpose of research work, the researcher has done doctrinal research methods. In
doctrinal research method, the researcher has collected information through surfing the
web.

METHOD OF WRITING

 The method of writing followed in the course of this project is primarily analytical.

SOURCE OF DATA

 Primary Sources

a) Case Laws

b) Legislative Provisions

 Secondary Sources

a) Books
b) Newspaper

c) Articles

e) Website

HYPOTHESIS

 The researcher while dealing in detail assumed that son is liable to pay the principal and
the interest (debt) of the father and if the daughter expressly agrees to give back the debt
of her father then she can do it, with this supposition has proceeded further in the project.
At the last hypothesis will either be proved or disproved.
Contents
Introduction......................................................................................................................................6

Son’s Obligation............................................................................................................................14

Obligation of Daughter..................................................................................................................22

Conclusion.....................................................................................................................................29
 INTRODUCTION

In the entire Hindu joint family, the Karta or manager, (the English word manager is wholly
inadequate in understanding of the unique position of the Karta, thus in this work, the word
Karta has been used throughout) occupies a very important position. He possesses a pivotal
position. So unique is his position that there is no office or institution in any other system of the
world which can be compared with it. His position is sui generis. He is a person with limited
powers, but within the ambit of his share, he possesses such vast powers as are possessed by
none else.

The head of the Hindu joint family also called the Karta or manager of the joint family occupies
a unique position unlike any other member of the family. The senior most male member of the
Hindu joint family is usually the Karta or head of the family. Often Karta is called manager of
the Joint family, this is when there is exists a family business or if it is a trading family, there has
to be a manager to take care of the proper functioning and supervision of the business. The Karta
has innumerable right and powers. He can exercise these right in any manner he think fit as long
as it’s for the greater good of the family. Along with such great power he has a number of
liabilities such as maintenance of family members and keeping proper accounts.

Capacity to be a Karta

According to the law, only a coparcener can become the Karta of the family. And by the Hindu
texts, only the senior most male member is designated by virtue of his seniority to be the Karta
of the family. But there are certain exceptions, where other members can be made the Karta.

 Senior most male member- it is a presumption of the Hindu law that ordinarily the
senior most male member is Karta of the joint family. The senior most male member is
the Karta by virtue of the fact that he is the senior most male member. He does not owes
his position to agreement or consent of other coparceners. He is entitle to be the Karta
because he is the senior most. So long as he is alive, may be aged, infirm, or ailing, he
 will continue to be the Karta. Even a leper may continue to be the Karta. Whether
insanity or any other disqualifications will defeat his rights is not clear, but it seems that
in such a case the next senior male member will take over the Kartaship. Once this is
done, the former cease to be a Karta.
So long as the father is alive, he is the Karta. After his death it passes to the senior most
male member, who may be the uncle, if coparcenary consist of uncles and nephews, or
who may be the eldest brother, if coparcenary consists of brothers.
 Junior male member-in the presence of a senior male member, a junior male member
cannot be the Karta. But if all the coparceners agree, a junior male member can be a
Karta. The junior member owes his appointment to the agreement or consent of the
coparceners. Coparcener may withdraw their consent at any time.
A junior member of Hindu undivided family (HUF) was realizing rent, he filed suit for
eviction, the tenant cannot, question his locus standi or capacity to file suit.
 Female member- a female, not being a coparcener, cannot be the Karta, generally. But
under certain circumstances, she can be allotted the powers of Karta.

Position of the Karta

The position of Karta is sui generis. The relationship between him and others member is not
that of principle or agent or partners. He not like a manager of a commercial firms. Needless to
say, he is the head of the family, and acts on behalf of other members, but he is not like a
partners as his power are almost unlimited. Undoubtedly, he is the master of the grand show of
the joint family and manages all its affairs and its business. His powers of management are so
wide and almost sovereign that any manager of business firm palace into insignificance. In a
sense, he stands in fiduciary relationship with other members, but he is not a trustee. Ordinarily,
he is accountable to none. Unless charges of misappropriation, fraud or conversion are leveled
against him, he is the master and no one can question him, as to what he received and what he
spend. So long as he manages the affairs of the family, he is not bound to save, economies or
invest. In short, he is not liable for positive failures, such as failure to invest, to prepare accounts,
or to save money. He is not bound to pay the income of the joint family in any fixed proportion
to other members. Even if he enters into such arrangement, he can repudiate it with impunity. He
is not bound to treat all members impartially, he may discriminate.
However large or despotic his power may be, despot he cannot be he has blood ties with other
members. After all he is a person of limited powers. He has liability towards members. Any
coparcener can, at any time ask for partition. He obtain no reward for his services and he
discharges many onerous responsibilities towards the family and its members. His true legal
position can be understood only when we know the ambit of his powers and liabilities.

Karta’s liabilities

Karta’s liabilities are numerous and multifarious. The Karta of the joint family is responsible to
maintain all members of the family, coparceners and others. If he improperly excludes any
member from maintenance or does not properly maintain them, he can be sued for maintenance
as well as for arrears of maintenance. He is also responsible for marriage of all unmarried
members. This responsibility has been has been particularly emphasized in respect of daughter.
If a partition suit is filed, he has to prepare accounts, though this has different meaning under the
Dayabhaga and the Mitakshara School. The Karta represent the family. He is its sole
representative vis-a-vis the government and all outsiders and in that capacity he has to discharge
many responsibilities and liabilities on behalf of the family. He has to pay taxes and other dues
on behalf of the family and he can be sued for all his dealings on behalf of the family with
outsiders.

Powers of Karta

When we enumerates the powers of the Karta, the real importance of his legal position comes
into clear relief. His powers are vast and limitations are few. The ambit of his powers may be
considered under tow heads:

(a) Power of alienation of joint family property,

(b) Other powers, in the former case his powers are limited.

As a general rule, he has no power of alienation. He can alienate properties in exceptional case
only. In the latter case, his power are very large, almost absolute, though in respect of incurring
debts his power are again restricted.

Powers of management-as the head of the family, Karta’s power of management are almost
absolute. He may manage the family affairs and family property and business the way he likes,
he may mismanage, and no one can question his management. The Karta has no obligation to
save or economies, no obligation to invest funds, or to invest properly. For instance, he may not
lease out family property or he may lease it out at a nominal rent. He may discriminate the
between the members of the family: to some he may give spend, to some less; some may be
given higher education, while other may be given only primary education. To some he allot a
bigger portion of the house to live in, to some he may allot smaller portions. But he cannot deny
maintenance or use and maintenance or use and occupation of property to any coparcener. Then
the ever- hanging sword of partition is a great check, is the affection and the natural concern that
he has for the members of the family and the complete faith and confidence that members
response him.

Right to income-it is the natural consequences of the joint family system that the whole of the
income of joint family property, whosever may collect them, a coparcener, agent or a servant,
must be handed to the Karta unless he has specially allotted income of a particular property to a
member. It is a rule of the Mitakshara joint family that no member of the joint family is entitle to
any definite share of the income of the joint family property or business. It is for the Karta to
allot funds to the members and to look after their needs and requirements. So long as the family
remain joint, no member can ask for any specified share in the income.

Right to representation- The Karta of the joint family represents the family in all matters,
legal, social and religious. He acts on behalf of the family and his acts are binding on the entire
joint family. The joint family has no corporate existence; it acts in all matters through its Karta.
The Karta can enter into any transaction on behalf of the family, and it will be ordinarily
binding on the joint family. Merely because one of the members of the family also joins him in
the representation, does not alter the position of the Karta or the binding character of the
transaction so enter into by the Karta. He also represents the family in suit and other legal
proceedings. The joint family will be bound to be a decree or order passed in legal proceedings.
Even when the Karta has lost a case on account of his gross negligence, it is not open to other
members to have the decree set side on that ground alone.

Power of compromise- Karta has power to compromise all disputes relating to family property
or their management. He can also compromise a suit pending in a court and it will and it will be
binding in on all the members, though a minor coparcener may take advantage of O.32, Rule,
C.P.C. which lays down that in case one of the parties to the suit is a minor, the compromise
must be approved by the court. He can also compromise family debts and other transactions.
However, if his act of compromise is not bona fide, it can be challenge in a partition. The Karta
has no right to give up a substantial portion of a debt due to the family merely out of charity, or
sympathy with the debtors.

Power to refer a dispute arbitration- the Karta power to acknowledge on behalf of the family
debt due to the family. He has also the power to pay interest on a debt or to make part payment
of the principle so that a fresh period of limitation may start. But the Karta has no power to
acknowledge a time-board debt.

Karta’s power to contract debts- The Karta has an implied authority to contract debts and
pledge the credit of the family for ordinary purpose of family business. Such debts, incurred in
the ordinary course of business, are binding on the entire family. The Karta of the non-business
joint family also has the power to contract debt for family purposes. Such debts are binding on
the m member of the joint family. When a creditor seeks to make the entire joint family liable for
such debts, it is necessary for him to prove that the loan was taken for the family purposes, or in
the ordinary course of business, or that he made proper and bona fide enquiries, as to the existent
of needs. The expression ‘family purpose’ has almost the same meaning as legal necessity,
benefit of state, or performance of indispensable and pious duties. Just as an alienation is
justified for legal necessity, etc., a debt is also justified for the same purposes.

Loan on promissory note- When the Karta of a joint family takes a loan or execute a
promissory note for family purposes or for family business, the other member of the family may
be sued on the note itself even if they are note parties to the note; their liabilities are limited to
their share in the joint family property, though the Karta is personally liable on the note. There
is a difference of option among our High Courts whether the coparceners are liable on the note
itself or whether there liability arises out of the debt. The Allahabad, Nagpur and Patna High
Courts take the former view while the Calcutta and Bombay High Courts take the later view.
This distinction between liability on the note and liability on the debt is very material. If liability
is on the note, the consideration, in certain circumstances, will be presumed while if liability is
on the debt, it would be necessary to prove that the debt was taken for a purpose binding on the
family. When a promissory note is in favor of the Karta of the Karta and his sons, the Karta
alone can sue on the note for the recovery of the debt.

Power to enter into contract- the Karta has power to enter into contracts and such contract are
binding on the family. It is also now settled that a contract, otherwise specially enforceable, is
also specially enforceable against the family.

Power of the Karta of the trading joint family- The Karta of the trading has all the powers of
the Karta of an ordinary family. He has additional powers. For instance, the Karta of the trading
family can take debts in the course of business for such debt except the Karta, no one else is
personally liable: their liability extends only to the extent of their interest in the joint family
property. It has been held that the joint family is also liable for the torts of the Karta committed
in the course in the course of business.

 Father’s power of alienation -At one time our Courts held conflicting views as to the
father’s power alienation over his separate immovable properties, though they were
unanimous that the father had full power of disposal of his separate movable property.
The reason for this conflict was a text in a mitakshara, according to which the father “is
subject to the control of his sons and the rest, in regard to the immovable property”,
whether self-acquired or ancestral. In 1898, the Privy Council set at rest this controversy
and held that the father had full power of alienation over his separate property, both
immovable and movable property. It has been all along recognized that the Dayabhaga
father has full power of alienation over all properties, whether self- acquired or ancestral.

Guramma v. Mallappa1

A gift of immovable property to daughter made by the father after her marriage was held valid.
The Supreme Court justified such gift by saying that it was given in lieu of daughter’s share in
partition in which was recognized in ancient law. It is submitted that, despite this particular
reasoning, gift of love and affection of immovable property cannot be made to sons or, for that
matter to any member of the joint family. The Supreme Court in a later decision has confide this
rule to gifts of daughter. Thus, gift of love and affection of immovable property cannot be given
to anyone else, not even to wife or daughter-in-law.
1
AIR 1964 SC 510
Can a woman be the ‘Karta?’

The Nagpur High Court held the view that mother, though not coparcener, can be in the absence
of adult male members, Karta of the joint family, and her acts will be binding on the others as
that of a Karta. The Supreme Court, in commissioner of income-tax v. Seth Govind Ram,
after reviewing the authorities, took the view that the mother or any other female member could
not be the Karta of the joint family and therefore cannot alienate joint family property. This is in
accordance with the texts of Hindu law. According to Hindu sages, only a coparcener can be a
Karta, since female cannot be coparceners, they cannot be the Karta of the joint family. Much
could be said in favor of the Nagpur view in context in which mother was held to be the Karta,
but the Supreme Court could not legislate.

In Gangoli v. H.K. Channappa2 the Karnataka High Court expressed the view that the mother
has natural guardian of her minor sons can manage the joint family property and appointment of
a guardian by court will not be justified. This is obviously the situation where the father is dead
and there no adult male member

After coming into force of Amendment Act 2005, a woman since is now a coparcener, the
question of her becoming a Karta should also be no longer there.

But presently, there was breakthrough jurisdiction related to the capacity of female to be the
Karta. Delhi high court has ruled in a landmark verdict. A unique position carved out by Hindu
customs and ancient texts, "Karta" denotes managership of a joint family and is traditionally
inherited by men. "If a male member of a Hindu Undivided Family (HUF), by virtue of his being
the first born eldest, can be a Karta, so can a female member. The court finds no restriction in
law preventing the eldest female co-parcenor of an HUF, from being its Karta," Justice Najmi
Waziri said in a judgment made public earlier this week. The Karta occupies a position superior
to that of other members and has full authority to manage property, rituals or other crucial affairs
of the family. These include taking decisions on sale and purchase of family assets, mutation of
property etc. The ruling came on a suit filed by the eldest daughter of a business family in north
Delhi staking claim to be its Karta on the passing of her father and three uncles. She was
challenging her cousin brother.

2
AIR 1983 Kant. 222.
The family consisted of four brothers, with the surviving eldest shouldering the responsibility of
Karta. Trouble began when the brothers passed away. The eldest son of a younger brother
declared himself to be the next Karta, but was challenged by the daughter of the eldest brother
who is also the senior most member of the family.

The term co-parcenor refers to rights derived in Hindu law to be the joint legal heir of assets in a
family. Traditional Hindu view, based on treatises such as Dharmshastra and Mitakshara School
of law, recognises only male inheritors to ancestral property. Amendments to the Hindu
Succession Act in 2005 introduced section 6 that levelled the playing field for women.
The court termed it "rather odd" that following the amendments, "while females would have
equal rights of inheritance in an HUF property, this right could nonetheless be curtailed when it
comes to the management of the same". Section 6 of Hindu Succession Act, it pointed out, did
not place any restriction on women becoming the Karta. The HC ruling is important because it
takes the 2005 reform in the Act to its logical conclusion. While the amendment restricted itself
to providing women equal inheritance rights, the verdict now allows them to manage property
and rituals of a joint family. Justice Waziri underlined that the "impediment which prevented a
female member of a HUF from becoming a Karta was that she didn't possess the necessary
qualification of co-parcenership", but section 6, "a socially beneficial legislation", removed that
bar. Justice Waziri said Section 6 gave "equal rights of inheritance to Hindu males and females,
its objective is to recognise the rights of female Hindus and to enhance their rights to equality
apropos succession. Therefore, courts would be extremely vigilant in any endeavor to curtail or
fetter statutory guarantee of enhancement of their rights. Now that this disqualification has been
removed by the 2005 amendment, there is no reason why Hindu women should be denied the
position of a Karta."

The son maintained that Hindu law recognises the right of eldest male member to be the Karta.
He claimed that even the 2005 amendment recognised the rights of a female to be equal to those
of a male only with respect to succession to ancestral properties, not management of estate.

The duty that is cast upon the son being religious and moral, the liability of the son for the debt
must be examined with reference to its character when the debt was first incurred. If at the origin
there was nothing illegal or repugnant to good morals, the subsequent dishonesty of the father is
in not discharging his obligation will not absolve the son from liability for the debt.
In Hindu law there are two mutually destructive principles, one the principle of independent
coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the
coparcenary property, and the other the pious duty of the sons to discharge their father's debts not
tainted with immorality or illegality, which lays open the whole estate to be seized for the
payment of such debts. According to the Hindu law givers his pious duty to pay off the ancestors'
debts and to relieve him of the death torments consequent on non-payment was irrespective of
their inheriting any property, but the courts rejected this liability arising irrespective of inheriting
any property and gave to this religious duty a legal character.

SON’S OBLIGATION

If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be
restored, after his death, by his sons. Should they separate, they shall repay it according to their
respective shares. If they remain united, they shall pay it in common, or the manager shall pay it
for the rest, no matter whether he may be the senior of the family or a younger member, who,
during the absence of the oldest, or on account of his incapacity, has undertaken the management
of the family estate.

Mukherjea J., delivering the judgment of the Supreme Court in Sidheshwar v. Bhubaneshwar
Prasad3, has once again discussed this question. According to the learned Judge, the doctrine of
pious obligation. "has its origin in the conception of Smriti writers who regard non-payment of
debt as a positive Sin, the evil consequences of which follow the undischarged debtor even in the
after world. It is for the purpose of rescuing the father from his torments in the next world that an
obligationis imposed upon the sons to pay their father's debts."

A series of decisions in the courts of modern India have changed the traditional interpretation of
the liabilities of the son, grandson, and great-grandson. The traditional distinction was that the
son was liable to pay the principal and the interest, the grandson was liable to pay only the
principal but no interest, and the great-grandson was liable only to the extent that the paternal
estate came into his hands. The son, grandson, and the great-grandson are liable equally for

3
1953 AIR 487
ancestral debts, but not personally liable, and that their liability is co-extensive and confined to
the extent that they have joint property in their possession.

It was not essential for the son to prove criminal liability against the father in respect of the debt
in question in order to claim exemption from payment of such debt. The learned Judge pointed
out that the son can claim immunity only when the father's conduct is utterly repugnant to good
morals or is grossly un-iust or is flagrantly dishonest.

AVYAVAHARIK DEBTS

In this section we will look as to what is meant by Avyavaharik debts. Colebrooke defined it as a
liability incurred for a cause repugnant to good morals. If it is unrighteous or wholly improper
they cannot be called vyavaharika or legal debts. It may be that the debts incurred by the father
for defending himself against criminal action against others or defending himself in an action
brought by others are legal in several circumstances. If a debt was incurred to defend the rights
of the family and to safeguard its interests, it is certainly legal in nature. If a debt is not tainted
with illegality at its inception it may be binding on the son. The son may not be able to claim
immunity from the debts in such cases. But, where the father's conduct which prompted the
incurring of the debt, is utterly repugnant to good morals or is grossly unjust or flagrantly
dishonest, then certainly the son can claim immunity from its liability. The learned author Mulla
of Hindu Law (at pp, 350 and 351 in l3th edition) places any debt which is avyavaharika which
is rendered by Colebrooke as equivalent to a debt for a cause "repugnant to good morals'' in the
list of Avyavaharika debts. It is further stated that the fundamental rule is that the sons are not
liable for the debts incurred by father which are Avyavaharika. Colebrooke translates it as "debts
for a cause repugnant to good morals." Aparaka explains it as not righteous or proper.

In a decision of a Full Bench in Bombay High Court it was held that Avyavaharika debt means
illegal, dishonest or immoral one. It is not essential for the son to prove criminal liability of the
father in order to claim exemption. So, where a person in possession of property, to which he is
not entitled, disposes of that property and deprives the rightful owner of that property, his
conduct is dishonest and the son is not liable for the debts arising out of such conduct Lord
Dunedin of the Privy Council defined the antecedent debts as antecedent in fact as well as in
time i.e. not a part of transaction impeached. Thus two condition are necessary:
1. The debts must be prior in time and

2. The debts must be prior in fact.

A son could claim immunity only where the debt in its origin was immoral by reason of the
money having been obtained by the commission of an offence; but not where the father came by
the money lawfully but subsequently misappropriated it. It is only in the former case that the
debt answers the description of an Avyavaharika debt. If originally the taking was not immoral,
i.e., if it did not have a corrupt beginning or founded upon fraud, it could not be characterised as
an Avyavaharika debt and the son could not be exempted from satisfying that debt. The
supervening event, namely, the misappropriation later on would not change the nature of the
debt. The vices should be inherent in the debt itself.

Immoral debts are those which are taken in furtherance of an immoral purpose such as for
prostitution or for keeping of concubine. Thus the expenses of the marriage of concubine's
granddaughter or to bribe to hindu women so that she may take one of his son in adoption or
purpose of gambling will be for illegal purpose .the debts resulting from the highly tortuous act
which at their inception are tainted with an evil purpose are avyavaharika. Father's power of
alienation for antecedent debts.

The father himself can alienate the joint family property property for the discharge of his
personal debt and son can challenge it only if the debts are tainted. This means that the father can
do it indirectly also. The pious obligation of the son to pay off the father debt exits whether the
father is alive or dead. It is open to father during his life time , to convey joint family property
including the interest of the son to pay off antecedent debts not incurred for family necessity or
benefit provided the debts are not tainted with immorality. The father can not do so after filing of
the suit for partition.
BURDEN OF PROOF THAT THE DEBTS IS TAINTED IS ON SONS

The obligation on son to pay off their father's personal debts is religious obligation and if they
want to wriggle out of it? they can do so only if the debts are tainted the son also have to show
that creditor had the notice or knowledge that the debts was tainted.

The Apex Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal 4, relying upon the
judgments of the Privy Council referred to (supra), enunciated the principles thus : "the sons who
challenge the alienations made by the father have to prove not only that the antecedent debts
were immoral but also that the purchasers had notice that they were so tainted."

The learned judge points out that the doctrine, as formulated in the original texts, has indeed
been modified in some respects by judicial decisions. That 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, and that it is a liability confined 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 have been contracted by the father and
they are not immoral or irreligious, the interest of the sons in the coparceners property can
always be made liable for such debts.

The proposition laid down in Brij Narain's case is founded upon the pious obligation is that a
Hindu son limited to his interest in the joint family property to pay the debt contracted by the
father for his own benefit and not for any immoral or illegal purpose. By incurring the debt, the
father enables the creditor to sell the property in execution of a decree against him for payment
of the debt. The son is under a pious obligation to pay all debts of the father, whether secured or
unsecured.

In Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni5, the observations of the
Supreme Court are as follows:

Whether father is the Karta of a Joint Hindu family and the debts are contracted by the father in
his capacity as manager and head of the family for family purposes, the sons as members of the
joint family are bound to pay the debts to the extent of their interest in the coparcenary property.
4
1960 AIR 964.
5
1979 SCR (1) 955.
Further, where the sons are joint with their father and the debts have been contracted by the
father for his own personal benefit, the sons are liable to pay the debts provided they are not
incurred for illegal or immoral purposes.

When a mortgage has been created by the father A Full Bench of the High Court gave the
following answer:

"In the case of a Hindu joint family consisting of a father and sons when a mortgage has been
created by the father of joint property, and a decree has been obtained on the basis of the
mortgage, the only ground on which the sons can challenge the mortgage and the decree is that
the debt was incurred for illegal or immoral purposes and that for this purpose it is immaterial
whether the mortgaged property has actually been brought to sale in execution of the decree or
not."

It may be mentioned here that the distinction between a father manager and a brother manager
cannot be lost sight. In the case of debts contracted by the father manager, the son is bound to
discharge the same on account of the doctrine of pious obligation notwithstanding the fact that
the debt was contracted for no legal necessity, nor for the benefit of the family. The doctrine of
pious obligation has no application in the case of the brother manager. Therefore, the debt
contracted by the brother manager binds the other members the joint family only when it was for
legal necessity and for the benefit the family. The doctrine of pious obligation has no application
when the debt contracted by the father was for any illegal or immoral purposes.

In Hemraj v. Khem Chand6, the Court referred to the Judicial Committee's view which held that
the translation of the term 'avyavaharika' as given by Mr. Colebrooke makes the nearest approach
to the true conception the term as used in the Smrithi text, and that the term does not admit of a
more precise definition. The term commonly used in decisions and text books to describe those
debts the father for which the son is not liable is 'illegal or immoral'. The expression was
doubtless originally meant to render 'avyavaharika' but it has come to be used as a compendious
temi to cover all the cases enumerated in the smiritis. It is, therefore, expedient to use the term
'illegal or immoral' purposes then 'avyavaharika' which as discussed by me supra eludes any
precise definition.

6
(1944) 46 BOMLR 503.
No pious obligation is involved in the said debt inasmuch as it is not the personal debt neither the
father nor the debts contracted for the benefit of the family. As understood the legal position is so
clear that so long as the purpose is not tainted with the element of illegality or immorality the
sons are liable under thedoctrine of pious obligation.

In Keshav Nandan Sahay Vs. The Bank of Bihar7 it was said that sons are liable under the theory
of pious obligation for the preparation debts incurred by the father. The doctrine of pious
obligation cannot apply to the wife and she, therefore, cannot be liable to the creditors on the
principles applicable to the sons. On a partition between a coparcener and his sons, a share is
allotted to the wife in her own right and she cannot be treated as mere representative of the
husband. The principle is based upon ancient Hindu texts which do not mention the wife in the
category of the sons and there is no statutory enactment ex- tending that doctrine so as to include
her.

Ramasamayyan v. Virasami Ayyar8

Even where the mortgage is not for legal necessity or for payment of antecedent debt, the
creditor can, in execution of a mortgage decree for the realisation of a debt which the father is
personally liable to repay, sell the estate without obtaining a personal decree against him. After
the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-
existent or was tainted with immorality or illegality.

Apentala Raghavaiah Vs. Boggawarapu Peda Ammayya9

In this case, the plaintiff's father Yellamanda did Tobacco business with the respondent and
thereby became indebted to him and because of which the father sold the property to defendant
for paying off the debts.The respondent contested the petition by filing his counter contending
that the Tobacco business was done by the father the petitioner for the benefit the joint family
and the debt contracted by him is not 'Avyavaharika debt' that the petitioner is liable to discharge
such debt incurred by his father in connection with such business.

In the decision of the Supreme Court reported in Manibhai v. Hemraj10,

7
AIR 1977 Pat. 185.
8
((1898) I.L.R. 21 Mad. 222)
9
1998 (1) ALD 11.
10
1990 SCC (3) 68.
also it is observed in para-38, after referring to various earlier decisions of the Supreme Court as
well as some other High Courts, as follows:

"Even if "any loan is taken by the father for his personal benefit which is found as vyavaharik
debt and not avyavaharik, the sons are liable to discharge their father's debt under the doctrine of
pious obligation and in this view the matter if any alienation the joint family property is
subsequently made to discharge such antecedent debt or loan of the father, such alienation would
be binding on the sons.''

Analysis

The Hindu Undivided Family system is a unique feature of the Indian society and the concept of
pious obligation acts as a thread which binds the family together and prevents it from
disintegration. Pious obligation includes both spiritual as well as material aspects and makes the
heir(s) responsible/liable for spiritual duties, like performing the last rites of the deceased, paying
back debts accrued by the deceased and also fulfilling other responsibilities left incomplete in
respect of the joint family. Once pious obligation is abrogated, the concept of joint family also
suffers a blow.

Conclusion

"The doctrine of pious obligation under which sons are held liable to discharge their father's
debts is based solely on religious considerations; the doctrine inevitably postulates that the
father's debts must be vyavaharik. If the debts are not vyavaharik or are avyavaharik the doctrine
of pious obligation cannot be invoked." The principle relating to the liability of the sons for debts
incurred by the father may be briefly recapitulated.

# In respect of debts contracted by the father, even for his personal benefit, at a point of time
when he is joint with his sons, the sons are liable to pay such debts, unless the debts were
incurred for immoral or illegal purposes.

# This liability of the sons, which had its origin in an obligation of piety and religion, has since
metamorphosed into one of legal liability but this 'does not, however, extend to debts tainted
with immorality.
# The liability is not, however, personal in the sense that the creditor of the father cannot proceed
either against the person or separate Property of the sons, but such liability is Restricted to the
interest of the sons in the family property.

# It is settled that if the debt is contracted by the father after partition, the son cannot be made
liable

# If, however, the debt is a pre-partition debt, the share of the sons would be liable even after
partition, if the debts of the father are not immoral or illegal and the partition arrangement does
not make any provision for the discharge of such debts.

# In case a creditor institutes a suit for the recovery of a debt against the father before partition
and obtains a decree, the sons would be liable to discharge the decree passed against the father
even after the partition.

# Even in respect of a pre-partition debt, if a suit is instituted against the father, after partition,
but he dies and his separated sons are impleaded as legal representatives, the remedy of the
decree-holder against the shares allotted to the sons on partition, would be in execution and not
by way of an independent suit.

# If, however, after partition, a suit is instituted against the father on a pre-partition debt and a
decree is obtained against him, such a decree cannot be executed against the sons and a separate
suit has to be brought against the sons in order to enable creditor to realize the amounts out of
their shares.

Thus the liability of the interest of the sons in such cases to discharge the debts incurred by the
father is undisputed, though the method and manner of its enforcement by the creditor would
vary and the sons must be afforded every opportunity, be it in a suit or execution proceedings to
question the binding nature of the debt' or liability.

After amendment of 2005

After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall
recognize any right to proceed against a son, grandson or great-grandson for the recovery of any
debt due from his father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such
debt.

OBLIGATION OF DAUGHTER

Feminist movements have questioned ‘male-stream’ thinking in ways that have struck at
discriminatory status quo in politics, society as well as the economic sphere. This project is
connected with the legal dimensions of the changes in the economic sphere of those changes and
specifically in the area of women’s property rights. Such changes have not been easy and have
included debates that have challenged the very basis of feminism itself. The ‘gender equality v.
gender difference’ or ‘formal equality v. substantive equality’ debates in feminist theory are
examples of contentious issues that have struck at the attempts of the law to change the legal
status of women. For example, would merely giving daughters the same coparcenary rights as
her brothers take into account that at some level the needs of men and women may be different,
as the ‘difference’ side believes? Or would giving a widow the same quantum of coparcenary
property as her sons (formal equality) make her life any better than in the past (substantive
equality)?

The constitution of India some argue provides a comprehensive framework for providing for
legislation that can bring tangible improvements in the status of women. However it has been
argued that the interpretation of the constitution by the higher courts have vastly reduced its
efficacy by giving undue importance to so-called ‘religious personal laws’ which in the guise of
protecting religious minorities allows for judicially acknowledged discrimination of women. A
‘secular constitution’ in a ‘religious society’ has not been able to rise to the challenges that a
dominant male hegemony has attempted to create by purporting to protect a higher value
-‘religion’. Consequently an issue that is directed at reform of laws that discriminate against
gains political currency and becomes too emotive to touch, let alone reform. The Uniform Civil
Code which despite being mandated by the constitution is unlikely to get fructified, at least in the
near future, on account of such politicization.

The judiciary has not been able to innovate in the face of such hurdles for women’s rights. For
example, in an interpretation of the ‘Equal Protection Clause’ of the constitution the difficulty
may be visible. The Supreme Court of the US will sometimes review discriminatory systems on
the basis of ‘active review’ (and hold the systems unconstitutional by looking at their ‘substance’
not their purported object) in the cases of vital matters of civil rights such as women’s rights. In
India however, the paradigm of reviewing discriminatory systems is termed ‘restrained review’
which assesses levels of formal equality (as opposed to a requirement of substantive equality)
thereby allowing several discriminatory systems to get through judicial review.

Now to turn to the evolution of women’s property rights before the Hindu Woman’s Right to
Property Act, 1937. The concept of stridhan or ‘women’s property’ originated in the vedic age
and undergone significant variation in various commentaries and after adjudication by British
courts. In general the stridhana of a woman denotes a species of property over which she has
absolute control; and she forms the stock of descent in respect to such property. In other words
such property devolves on her heirs, although th variations between different schools of Hindu
Law may not always provide for this.

The British courts recognized three types of stridhan the first being ‘gifts from kindred’ that is
from male relatives of her natal family. The second type consists of ‘property acquired in lieu of
maintenance’ and the third type consists of ‘property acquired by adverse possession’. The share
of a woman on partition is not stridhana and she would not be its absolute owner.

The second type of women’s property is that where she has limited or qualified interest and such
property got fructified in the Hindu Women’s Right to Property Act, 1937 (discussed below).
Such ‘women’s estate had the primary feature of only providing for limited power of disposal
(usually only for legal necessity). Also such estate was only for the benefit of the widow in her
lifetime and reverted to the heirs of the last full owner.

Thus this historical background allows for a full-fledged discussion of the ‘coparcenary rights’ of
women right from the Hindu Women’s Right to Property Act, 1937 right down to the
recommendations of the Law Commission in 2000.

It will be noticed that reform in the area of property rights for women and daughters in particular
follow two broad approaches. The first being a reformation of the personal law as it stands i.e.
reform the hitherto discriminatory law that devolve property upon males by virtue of birth and
give women similar rights. This approach is liable to the general criticism that it purports to
retain customary-personal laws but tamper with their fundamental principles, which is primarily
directed towards giving only males property rights. The second approach is more direct,
removing all customary-personal laws, which are inherently discriminatory against women on
the ground that they cannot fruitfully be reformed. Both approaches have been attempted in India
with varied results and consequences for the rights of women.

The second more direct approach was attempted in Kerala in 1976 with the Kerala Joint Family
System (Abolition) Act, 1976 which followed the broad recommendations of the Hindu Law
Committee (Rau Committee) and abolished the right of birth under both Mitakshara and
Marumakattayam Law. The Act itself creates consequences that have proved to have both
positive and negative consequences for the rights of women.

Firstly, the Act has operation only in Kerala where the existence of matrilineal succession
systems such the Marumakattayam Law also got abolished. While in general ‘right by birth’ as a
principle has been discriminatory against women, in Kerala for instance this may not have been
the case and the legislation adversely affected women who were benefiting by a ‘right by birth’
principle in favor of women. Secondly, the Act is prospective in nature, abolishing devolution of
property by birth, after its enactment, thereby not benefiting women who were previously denied
property on account of this principle. Thirdly, the Act lays down that members of the Mitakshara
coparcenary will hold the ancestral property as tenants-in-common the Act comes into operation
as if a partition had taken place and each of them holding it separately. The property rights of
women may be defeated if the male coparceners dispose the property by testament or by
alienation and the act makes no effort to prevent such a manner of defeating the property rights
of the woman. Fourthly, the Act does not confer any rights to daughters in existing coparcenary
properties.

The second approach of reform was attempted by the Andhra Pradesh legislature in 1985 where
it attempted to reform the customary Hindu Law by making the Daughter a coparcener and
giving her the same rights as other (previously only male) coparceners. The Andhra Model has
been replicated in Tamil Nadu, Karnataka & Maharashtra. This model will be examined in
greater detail below.

As explained earlier the Acts make the daughter a full coparcener and this makes her a member
of her natal family and marriage to another family does not alter this position. In other words she
is a member of two families, her natal family and her husband’s family-- a position of law
hitherto unknown. The Supreme Court in the past has struck down definitions of ‘family’ that are
artificial because they don’t exist in actual practice or because they violate fundamental rules of
legal construction. In Kunhikoman v. State of Kerala a definition of family that included
‘husband, wife, unmarried children or such of them as they exist’ was struck down as
unconstitutional and artificial as they did not exist in actual practice nor in any established
system of law. It remains to be seen if such a modification to the meaning of the ‘family’ that the
amendments have in fact been effected will be sustained, if challenged.

The woman as a karta within traditional Hindu law has not been accepted in practice nor in
theories of Hindu Law. Such exclusion is based on the logic that ‘only a coparcener can be a
karta’ since women cannot be a coparcener they also cannot be a karta and such logic is
supported by the opinion of the Supreme Court. The amendments however attempt to create
exactly the contrary position making a daughter a karta and thereby technically allowing her to
become a karta of the joint family. As Prof. Sivaramayya has argued this fiction of law could
lead to practical difficulties if a coparcener leaves a daughter from a first marriage and a wife
and children from a second marriage. Potentially the first daughter could claim kartaship over the
second wife’s family (as well as well as manage the affairs of their family) despite being a
member of another family (after marriage)-practically a very difficult situation.

The doctrine of pious obligation has posed difficulties in the context of codified law and more so
in the context of women. It has been held that the ‘moral obligation’ to pay of the debts of
deceased relatives that arises in the case of male coparceners does not apply to the widow. In
Keshav Nandan Sahay v. Bank of Bihar the court held that the sons were liable for pre-partition
debts incurred by their deceased father with respect to some bank loans while the widow was
not. The court felt that on partition between the coparcener and his sons the widow is allotted a
share in her own right and not as a mere representative of her husband. This position of her
differentiates her from her sons as regards their pious obligations.

In the High Court of Karnataka (where the new amendments operate) took the same view, albeit
before the enactment of the amendments. In Padminibai v. Arvind Purandhar Murabatte the
court felt that because a wife not being a person entitled to a share in the Mitakshara coparcenary
by birth is not bound by the doctrine of pious obligation.
Now applying this reasoning of the Karnataka High Court to a post-amendment scenario-- will
the daughter be liable for pious obligation? Following from the reasoning of the Karnataka High
Court, the wife was excluded from pious obligation simply because she did not have a right by
birth in the coparcenary. Therefore if a daughter acquires a share in the Mitakshara coparcenary
by birth it must follow that she will now be liable. This will have to be adjudicated upon by the
courts to achieve certainty in the matter.

Other aspects of Mitakshara Law such as reunion also pose problems because firstly they are
regulated by uncodified Hindu Law and secondly a reunion is only possible between father-sons,
brothers, nephews-paternal uncles totally excluding women. Again as argued above, if the
daughter (or sister or niece) becomes eligible to participate in reunion as coparceners then it will
amount to tampering with uncodified law something, which the amendment to a partial code
cannot effect.

Questionable Distinctions in the Amendments

In S.29-A of the Andhra Act the daughter becomes a coparcener “by birth” therefore does this
section apply to only natural born daughters or also to daughters by adoption? Should “birth” be
strictly interpreted so as to exclude the latter? The second questionable distinction is found in
S.29-A (iv) where the coparcenary rights are said to accrue only to daughters who remained
unmarried at the time of enactment of the amendment. Should marital status be taken as a
legitimate basis of classification that could exclude some daughters from the rights that the
amendments create for other ‘classes’ of daughters?

In Indian constitutional law, exceptions to the “Equality and Equal protection Clause (Art.14)”
are analyzed with the Doctrine of Reasonable Classification. The doctrine which is a juristic tool
allows for certain exceptions to a strict rule of equality if two conditions are satisfied namely (a)
the classes created have been based on some intelligible differentia (b) the classification bears a
rational nexus to the object of the classification.

The distinction relating to “birth” will be considered first. It seems that there is an intelligible
differentia between a ‘natural born’ and ‘adopted’ daughter with the reading of the section
providing that “birth” might have to be strictly construed. However it is on the second condition
of rational nexus that the distinction seems untenable. From the reading of the preamble to the
Andhra Act it is clear that it was enacted because “…exclusion of the daughter from
participation in coparcenary ownership by reason of her sex…” is contrary to Art.14 (equality
clause) of the constitution. The emphasis seems to be directed at removing discrimination ‘by
reason of sex’. Does differentiation by “birth” have a rational nexus with the object of the Act,
which is removing discrimination on the basis of sex? It is humbly submitted that the answer is
no.

Further support for this argument can be drawn from S.12 of the Hindu Adoption and
Maintenance Act, 1956 which severs for the adoptive child (from the date of adoption) all legal
links with his natal family and associates him with only his adopted family. However Prof.
Sivaramayya disagrees arguing that the section does not intend to give coparcenary rights to an
adoptive daughter because of the emphasis on “by birth”. Without going into the substance of his
argument, it may be questioned on the count that one must not assume that the opinion of the
legislature must in all cases be given effect if it results in some absurdity or clear injustice.
Judicial review of a number legislative acts have proceeded on the ground of ensuring some
higher values, either intended by the legislature (but not reflected in wording of the enactment
itself) or contrary to the opinion of the legislature itself.

The second questionable distinction arises with the use of marital status to exclude daughters
married before the commencement of the Act from its operation. It has been argued the reason
for this distinction might have been the sociological fact that dowry is given to the daughter at
the time of marriage and this would constitute her share. This justification for the differentiation,
it is submitted, would be against public policy especially when there are a number of legal
prohibitions against the custom of dowry.

While this distinction in the context of the amendment has not been adjudicated, in other fact
situations, marital status as a ground for differentiation has been held unconstitutional. In Savita
Samvedi v. Union of India restrictions was placed on the right of a railway employee to
nominate a married daughter for certain benefits that the railway was giving to its employees. A
married daughter under the railway rules was eligible only if there was no son or the son was not
in a position to take care of his parents. The court held that this distinction was unconstitutional
because it suffered from the twin vices of gender discrimination between sons/daughters as well
as between daughters inter se (on the ground of marriage). Thus the trend of the Apex court
seems to go against accepting a differentiation where the ground is marital status. The opinion of
the Supreme Court will reinforce the submission that ‘marital status’ as a ground of
differentiation cannot have a rational nexus to the object of granting coparcenary rights to
daughters in general.

The history of pious obligation of daughter can be laid back to 1924 when the Privy Council first
heard the case of such type of obligation of daughters towards their deceased father. In the case
of Pondicherry Kokilambal vs Pondicherry Sundarammal And Ors. on 25/7/1924 it was observed
by the Privy Council:

“The entire law of the joint family, including right by birth,' has to be applied, the only
difference being that daughters took the place of sons and are entitled to such rights, as the sons
would have in a joint family. If this view is correct the position will be that the plaintiff would
have all the rights and liabilities of sons in a joint family. If you corcede the right by birth, and
apply the law of the ordinary Mitakshara joint family, you must also concede pious obligation of
the daughter to discharge her mother's debts”.

From the cases reported in Chalakonda Alasani v. Chalakonda Ratnachalam, Kamakshi v.

Nagarathnam, Boologam v. Swornam, Venku v. Mahalinga and Muttukannu v. Poramasami, that
there can be a co parcenary of dancing girls, with rights of survivorship. There is however no
case which goes to the length of saying that daughters of dancing girls acquire by birth an
interest in the ancestral property; but Mr. Guruswami Chetty contends that once you grant a co-
parcenary, right by birth is a necessary corollary and that there can be no co-parcenary without-
right by birth acquired by co-paroeners Mr. Radhakrishnayya relies upon Niras Purbe v. Tetri
Pasin and Sant Singh v. Lachhmi to show that in such cases you have to apply the law of usage
and that the daughters inherit the property absolutely as stridhanam.

In another case of 1984 Income-Tax Officer vs K. Krishnamachari on 18/8/1984 it was held that
the daughters have no pious obligation to repay the debt of her father. In this case the deceased,
A. Radhakrishnamurthy, died leaving behind two daughters, some properties as well as debts.
Admittedly, he died intestate. Immediately after his death, his daughters being his Class I heirs
inherited his properties with the obligation to discharge the debts due from him. Unlike in the
case of the sons, the daughters have no pious obligation to pay the debts of their father. The
necessary corollary of this position is that the daughters would be liable to discharge the debts of
the father only to the extent of the value of the assets inherited by them through their father.
There is no question of any executor administering the estate of the deceased. The question of an
executor administering the estate of deceased person would arise only if such an executor was
appointed by the terms of a will left behind by the deceased by which the testator ordained the
executor to take over his properties, administer them and to discharge the debts due from him.

As per the Section 6 of the Hindu Succession Act, 1956, after the amendment the daughters shall
have the same rights and liabilities as if she would have been a son. Therefore, the pious
obligation has been deleted after the amendment Act of 2005 but the liability to pay the debt of
the deceased father will be the same upon daughters as they would be on sons before the
commencement of the 2005 amendment Act, therefore the rights of the creditors will be
preserved if the debt was taken before the commencement of this amendment.

But at the same time now the creditors cannot move against any heirs of the deceased father if
the father died without paying back the debts of the creditors. But if however such heir has
expressly to bind himself to fulfill the obligation, the provision will become redundant and
inoperative. Since the commencement of this amendment the creditors’ rights are preserved
against any heir born after the said Act was passed.

If the daughter expressly agrees to give back the debt of her father then she can do it as per the
guidelines under the amended section 6 of Hindu Succession Act.

CONCLUSION

The concept of in the Hindu joint family is not just a position of power but also serves a very
particular purpose. A Hindu joint family is a very complex entity and it is very imperative that in
order that all the function and duties are carried out conveniently, there be a centralizing force,
which is readily provided by the Karta. Whether it is reading the legal Karta issues or reading
property issues, the Karta represents the entire joint family and this saves the trouble of multiple
claims of actions. Centralization as the key to good management and this is provided by the
Karta.

Along with numerous powers, a lot of checks have also been imposed on the Karta to prevent
any misuse of power. This ensures that the Karta work for the benefit of the joint Hindu family.
Law has provided enough remedies to the members of the joint family to protect their interest in
case of despotic behavior by the Karta.

Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out of his
ancestral property even if he had not been benefited by the debts, provided the debts are not
avyavaharika. The sons get exonerated from their obligation to discharge the debt of their father
from the family assets only if the debt was one tainted with immorality or illegality.