Chapter 33

SON'S PIOUS OBLIGATION TO PAY FATHER'S

UNTAINTED DEBTS AND DOCTRINE OF
ANTECEDENT DEBTS

(This concept has almost done away with by the Hindu Succossion
been
no court shall
(Amendment) Act, 2005.According to Section 6(4) of the Act,
to proceed against a son, grandson, or great granlson
for
recognize any right
the recovery of any debt due from father, grandfather, great grandfather
on the ground of pious obligation
under the llindu law though if any
solely
debt was contracted before this Act came into force, i.e., before 9th September,
2005 a creditor's right would not be aflected to procced against the son,

great grandson or
anyalienation would also be not aflected which
grandsonor
was made in satisfaction thercof.
Nature of the Liability
The debts occupy a important place in the Hindu system of law. It
very
illustrates one of the fundamental principles of the Hindu jurisprudence, viz.,
moral obligations take precedence over the legal rights (The Hindu snges have
repeatedly enjoined that one must pay one's debts|(Brihaspati ordained :
one
who does not repay his debts will be born hereafter in the creditor's house as
a slave, a servant, a woman or a quadruped.)The Hindu suges did not stop
here. They said thatif' a Hindu dies indebted, his sons must repay his debts)
(This is considered to be the religious or pious duty of sons of discharging their
father from the sin of his debts. Not merely this, the son's son and yon's son'
son should also pay the debt of grandfather and great grandfather(Under the
modern Hindu law, the liability to pay the debt of the son, the grandson and
the great grandson is co-extensive, and they are liable to the extont to which
theyhave joint family property in their hands." They are not liable persOnally)
Under the doctrine of pious obligation of the son, the entire joint lamilyldk
property is liable. Thedoctrine of pious obligation is the logical corollary to
the son's birth-right. The doctrine is not recognized under the Dayubhaga
schoolBut it is applicable to the Thiyyas of Kerala among whom polyandry
prevails
Debt must not be avyavaharik).-Singe thel liability of tho son is
pious, the character of father's deht is material) 'The sons aro liuble lor the
father's debts ex contractu or quasi ex contractu," provided the debt iN not
1. Digest 1, 229. By cantrak
2. Pedu v. Sreenvasa, (1918) 41 Mad 136 (PB.) Jamboo Ruo v. Annappa, LR (1914)
Bom 177 (FB)
3. Arrakul v. Aralul, AlR 1978 Ker 119 (FB)
4. Keshav v. Bank of Bihur, AlR 1977 Put 185.

(425)
426 FAMILY LAW

avyavaharika. (The sons are not liable for the post-partition debts./ The debt
need not be for any legal necessity. It may be debt taken by the father for his
personal need.")
The term avyavaharika has been variously translated by the writers and
judges. Colebrook's rendition of it as those debts which are for "causes
repugnant to good morals" has been approved by (the Supreme Court in Jakati
v. Borkar. Broadly speaking, it has come to mean th0se debts that are taken
Tor llegal or immoral purposes.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.
Similarly, debts tainted with illegality such as wagering contracts, or debts
arising out of the smuggling activities or debts taken in the furtherance of any
crime are debts for unlawful purposes(TIf "the taking itself" is a criminal
offence, the debt is for unlawful purpose such as misappropriation," or
criminal breach of trust by the father. But the sons are not liable for the
father's chit-fund debts.)
(The immoral debts are those which are taken in furtherance of an
immoral purpose, such as for the prostitution or for keeping a concubine.,
Thus, the following debts have been held immoral, debts taken by the father
to defray the expenses of the marriage of his concubine's granddaughter, or
to bribe a Hindu woman so that she may take one of his sons in adoption,' or
(to meet the expenses of civil and criminal litigation against his sons the
purpose of which is to deny the sons their legitimate rights to propertyThe
debts arising out of gambling will be for illegal purpose if gambling is
prohibited by law.
The debts fesulting from the highly tortuous acts which, at their
inception, are tainted with an evil purpose are also avyavaharika. (But if the
civil liability of the father arises out of some irregularity, the sons are liablée
It has been held that the sons are liable for the decretal debts of the father
for damages on account of damage caused to the crops by obstructing an
irrigation channel, for the debt taken by the father to defend a suit of
defamation, or to defend himself against the charges of forgery and
fabrication, or for damages for wrongfully cutting down the trees, or jor.
liability arising out of negligence in the discharge of duties by the fathet In
Logannathan v. Ponnuswami," the father dishonestly defrauded certain
minors of the money that he had collected on their behalf. Criminal
proceedings were launched against him under Ss. 384 and 404, I.P.C. The
father
borrowedmoney to stifle the proceedings. The court said that "the sons
are not bound do
to anything to relieve their father from the consequences of
his own vicious indulgences, but he is surely bound to do that which his father

1. Raghothaman v. Kannappan, AlR 1982 Mad 235.

2. Himatlal v. Ramesh Chandra, AlR 1983 Guj 7.
3. AIR 1959 SC 282.
4. Jaganath v. Jugal Kishore, ILR (1926) 48 All. 9.
5. Muniyandia v. Muthusumi, AlR 1939 Mad 70.
6. Lakshmanswami v. Raghavacharul, AlR 1943 Mad 292.
7. Sitaram v. Harihar, (1911) 15 Bom, 169.
8. Veera v. China, AlR 1957 AP 373, Rumasubramma v. Sivaumai, AIR 1952 Mad 8
Govinda Pd. v. Raghunath, AIR 1939 Bom 289 (P.B.).
9. AIR 1969 Mad 15.
 HINDU JOINT FAMILY SYSTEM 427

himself would do were it possible, viz, to restore to those lawfully entitled to

money he had unlawfully retained. A father who was a partner in a firm
utilized the firm money for his own purpose. Then he alienated the joint
family property to pay the firm. The consideration for alienation was held not
to be tainted. The damages awarded in a suit for malicious prosecution
against father is a vyyavaharik debt.2
Time barred debt.-Although under the modern law, no Hindu is
bound to pay his time barred debts and consequently, the sons are also not
iable to pay the father's time barred debts^yet a promissory note executed by
the father for it and an alienation made for its discharge by the father will
be binding on the son since under the Hindu law, a time-barred debt is not
an avyavaharika debt.
The difficult question that arises is at what stage should a debt be an
avyavaharika debt? Or, what stage of "taking" will render the debt immoral
or unlawful? If "taking" itself is a criminal offence, the debt is taintedRao,
J., of the Madras High Court formulated the following two propositions
:)
1. Even if the debt is not immoral at its
inception, subsequent
dishonesty of the father does not exempt the son, and
2. It is not every impropriety or every lapse from the right conduct
that stamps. the debt as immoral. The father's conduct must be
"utterly repugnant to good morals, or is grossly unjust or flagrantly
dishonest."
The Privy Council in Hem Raj v. Khem Chand, said that if the debt "at
ts inception" was not tarnished or tainted with immorality or illegality it is
binding on the sons. Thus, it is necessary to make out a connection between
the debts and the taint at the earliest
arises in
opportunity.JAn interesting situation
misappropriation cases. A father collects money on behalf of a person
and misappropriates it. His liability in cash is assessed by the court and a
aecree is passed against him which is sought to be executed by the
uagment-creditor against the entire joint family property. Can the sons say
nat the debt was tainted? The courts have taken the view that the original
ndebtedness and liability were free from the taint and therefore the sons are
able. The vice should be inherent in the debt
itself.
Burden of proof that debt is tainted is on sons.-The burden of
O that the debt is tainted is on the
sons) The simple.(The
reason is
1gation on the sons to
pay off their father's
personal debts is
gation and if they want to wriggle out of it, they can do so only if religious
a
the debt
ainted Thus, they must establish that the debt is tainted. The sons also
f o show that the creditor had the notice or knowledge that the debt was
tainted
aoriram v. Parsudi, AIR 1982 All 62.
Kamalammal v. Senthil, AlR 2003 Mad. 337.
Gujhdhar v. Jagannath, AJR 1924 All 551. (F.B.).
Ramasubr
AP 350.
5.
brumania v. Sivakami, (1925) Mad 841; followed in Veena v. China, AlR 1975

(1943)
6. Jea 71 IA 171.
v.
Brokar, AIR 1959 SC 282.
Lahar Amrit v. Dashi Jayanti, AIR 1963 SC 964.
 428 FAMILY LAw

Father's Power of Alienation for Antecedent Debts

The Dharamashastra imposed the liability to pay the father's untainted
debts on the sons only after the death of the father, but by judicial valour this
has been extended. and the_sons are now liable to pay the father's debts
during the father's lifetime.
( The doctriFe has becn further extended by laying down that the father
himselfcan alienate the joint family property for the discharge of his personal
debt and the sons can challenge it only if the debt is tainted.: This means
what the father cannot do directly, he can do indirectly. In the words of
Natesan, J. : "The pious obligation of the son to pay the debts of his father
exists, whether the father is alive or dead. It is open to the father during his
lifetime, to convey the joint family property including the interest of sons, to
pay off antecedent debts, not incurred for family necessity or benefit, provided
the debt is not tainted with immorality."The father cannot do so after a suit
of partition is filed)Moreover, such an alienation will be hit by S. 52 (Doctrine
of lis pendence) of the Transfer of Property Act.
Antecedent Debt
ULord Dunedin of the Privy Council defined the antecedent debt as
"antecedent in fact as well as in time", i.e., not a part of the transaction
impeached." Thus, two conditions are necessary
a the debt must be prior in time, and
t h e debt must be prior in fact.
O The first requirementmeans that in point of time the debt must precede
the alienation, both cannot be made simultaneously. Thus, if debt is taken,
say on 1.1.90 and properties are alienated on 7.7.90, the debt is prior in time
The second requirement means that the debt and the alienation should be two
independent and separate transactions, if debt and alienation are part of the
same transaction, even though one (debt) takes place first in point of time and
the second (alienation) later on, the debt will not be antecedent.]Thus, on
1.1.90, a father, F and A, an alienee, reach an agreement or understanding
that on 2.1.90 A will give F a loan of Rs. 10,000/- and on 1.7.90. A will alienate
X, a joint family house to A. A pays Rs. 10,000/- to F and F alienates the house
X to A accordingly. In this
case, though the debt is prior in time, it is not prior
in fact,
being part and parcel of the same transaction entered into on 1.1.90.
What is required is that the debt must stand
and must be prior to
independently of the alienation
it."
Un some cases, a view is pronounced that even if the father has
mortgaged the joint family properties and that mortgage is not
the justified tor
legal necessity or benefit, the sons are nevertheless bound to pay the 1eD
under the doctrine of pious obligation. The argument runs for a
simple deD
1. Brij Narayan v.
Mangla Pd.,AIR 1924 PC 50
2. Girdhar1 v. Kantoo, (1874) LA. 321; Surta Bunsi
Sheo
Prasad, (1879) 7
v.
Janardhanu v. Gangadharum, AlR 1983 Ker 178 (FB.) where most 1A
of the earlier caseo
have been reviewed
3. Iyengur v. Pillai, AlR 1971 Mad 303, Prasad v. Govindaswami, AlR 1982 SC 84.
4. Jayaram v. Ayyaswami, AIR 1973 SC 569.
5. Brij Narayan v. Mungala Pd., AlR 1924 PC 59.
6. Virdhachalam v. Syrian Bank, AIR 1964 SC 1425; see also Panna Lal v. Naranini,
AIR 1952 SC 544.
 HINDU JOINT FAMILY SYSTEM 429

the ereditor can obtain a decree against the father and then proceed to
execute the decree against the joint family property, butit
for a secured debt (mortgage debt is a secured debt), he
is anomalous that
cannot doso, The
Madras High Court tried to circumvent the antecedency rule by saying that
where the Court sells by auction the joint family property to enforce the
the mortgage) is prior to the auction sale and
mortgage debt, the debts (.e.,
is therefore antecedent.
In Pathak v Pathak," the Gujarat High Court said that if the father sells
the properties to discharge a mortgage debt which is not awyavaharika,
the son can get the sale
though not justified for the legal necessity or benefit,arising thereunder. In
set aside provided he meets the liabilities
Devabhaktuni v. Challa, the Andhra Pradesh High Court rightly took the
view that mortgage debt is not an antecedent debt. )
(Suit by the creditor.-When a decree is obtained by a creditor of the
father, the sons are not necessary parties to the suit." But it seems that the
sons are necessary parties to execution proceedings.

ini
uwa
This Conte p ehon L
Aeayclinats
L

Nefunc o Lies bili'.

L
L

D rmsn

1. A Vudla, AlR 1979 AP 36.

2, Abdul v. Provident Investment, AlR
AIR 1967
1964 Mad 961; Vadla v.

3. Guj 192.
AIR 1984 AP 45.
Panna Lal v. Narayan, AIR 1962 SC 170.
*Arishnaswami v. Thiagaraka, AIR 1971 Mad 303.