DR RAM MANIHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW
(2023-2024)

FAMILY LAW- II PROJECT

PROJECT TITLE – DEBT AND LIABILITIES OF HINDU
JOINT FAMILY

Submitted by: Saniya Singh

Enrollment no: 220101087
B.A.LLB 4th semester section A

Submitted to: Dr. Samreen Hussain

Assistant Professor (law)
RMLNLU, Lucknow
 ACKNOWLEDGMENT

Nothing in this whole world can be accomplished alone and my piece of work is also not an
exception too, in successful completion of this piece work there has been help and support of
various peoples. I am obliged to my Professor Dr. Samreen Hussain who has given me golden
chance for this research project. I would also like to thank the almighty and my parents for
their moral support and my friends who are always there to extend the helping hand
whenever and wherever required.

I further extend my thanks to library staff and all the administrative authorities of DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY who helped me in getting all
the materials necessary for the project.

Saniya Singh
 TABLE OF CONTENTS

1. Introduction

2. Debts under Mitakshara joint family

3. Debts under the Dayabhaga joint family

4. the Pious Obligation of the son

5. Types of debts

6. Burden of proof

7. Position after the 2005 amendment

8. Conclusion

9. References
 INTRODUCTION

In India, joint families typically handle their money jointly, combining resources to meet
everyone's requirements. Gaining knowledge about the dynamics of these households' debts,
assets, and obligations can help one understand their financial stability and strategies for
managing their finances.

Debts can be defined as monetary obligations owed by an individual or group to another

party. In the case of a Hindu joint family, debts can arise from various sources, including
loans, mortgages, or unpaid bills. These debts can be incurred by any member of the family,
and they collectively impact the well-being and financial stability of the entire family.

Liabilities, on the other hand, refer to the legal responsibilities and obligations that a person
or family has to fulfill. In the context of a Hindu joint family, liabilities can encompass a
wide range of financial commitments, such as repaying debts, meeting the needs of family
members, managing property, and safeguarding the interests of the family as a whole.

In a Hindu joint family, all members share a common ancestry and are bound by a legal and
patriarchal structure. This joint family system extends its influence not only to matters of
property and inheritance but also to debts and liabilities. In such a structure, the debts
incurred by any member of the family are considered collective responsibilities of the entire
joint family.

A. Legal Implications

According to the Hindu Succession Act, when a person incurs a debt as a member of a Hindu
joint family, the creditor has the right to not only recover the debt from the individual but also
from the joint family's assets. This means that the creditor can claim the joint family property
to settle the debts owed.

B. Shared Liability

In a Hindu joint family, the burden of debts and liabilities falls on all the members
collectively, regardless of who incurred the debt. This concept of shared liability is a
fundamental aspect of a joint family system. The joint family acts as a support system,
pooling resources to clear debts and fulfill obligations.
Debts occupy a very important place in the Hindu system of Law. This is one of those areas
of Hindu law that illustrate one of the fundamental principles of Hindu jurisprudence, i.e,
moral obligations take precedence over legal rights. The Hindu sages have repeatedly
believed 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, servant, woman, or a
quadruped. According to Narada: if a religious and devoted person died indebted, the whole
of the merit of his sacrifices and devotions will belong to the creditor.

The Hindu sages did not stop here. They said that if 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 son’s son should also
pay the debt of the grandfather and great-grandfather. The only distinction between their
liability was that son was required to pay it with interest and the grandson to pay only the
principal amount.

The grandson was required to pay only to the extent to which he had the joint family property
in his hands; he was not personally liable, though the son and the grandson were made
personally liable. By a series of decisions, it has now been established that the son, the
grandson, and the great-grandson’s liability to pay is coextensive in nature i.e, their liability
is the same and they are liable to the extent to which they have joint family property in their
hands. They are not personally liable.

This doctrine applies to all the coparceners who are fathers, and merely to the father who is
head of the family, i.e, Karta. When a coparcenary consists of the father and sons and if the
father dies indebted, the sons have the Pious Obligation to pay the debts of their father, not
merely of the fathers’s interest but to the extent of the entire joint family property. This
means that the doctrine of pious obligation is the logical corollary to the son’s birthright. The
doctrine is not recognized under the DayaBhaga School. But it is applicable to the Thiyyass
of Kerala, among whom polyandry prevails
 DEBTS UNDER MITAKSHRA JOINT FAMILY

In the Mitakshara School, the allocation of the inherited property was based on the law of
possession by birth and a man could leave his self-acquired property to which he willed. The
joint family property went to the group known as coparceners, i.e, those who belonged to the
next three generations and also the joint family property by partition could be, at any time,
converted into separate property. Therefore in Mitakshara School, Sons had an exclusive right
by birth in joint family property.

Under the Hindu law, the liability to pay debts of another has a religious, moral and legal
origin–

a) Liability to Pay the Debts of a Person by His Heir: A Hindu heir is liable to pay the
debts (whether properly incurred or for an immoral or unlawful purpose) of the deceased, out
of the assets he has inherited from the deceased. In such cases, he is not personally liable at
all, even if the deceased was his own father.
b) Liability for the Debts of a Coparcener: The Vijnaneshwara says that Daya, the origin
of the Coparcener system is just that the property becomes another person’s property just
because of the owner’s relationship with others by family. It became a prominent part of
Hindu law, every coparcener is under a legal obligation to pay his debts. The undivided
interest of a coparcener can be attached and sold in the execution of a money decree against
him before his death (for payment of debts) by a creditor. Thus, if a coparcener had died with
some personal debts, these debts cannot be enforced against his interest in Joint Family
Property after his death. However, if interest has been attached during his lifetime or before
judgment and the coparcener dies during the pendency of the suit, his interest can be sold.
Further, a creditor could claim from the persons inheriting the coparcener’s property.
c) Liability of a Son to Pay the Debts of His Father (Pious Obligation of a Son): Since the
liability of the son is pious, the character of father’s debt is material. The sons are liable for
the father’s pre-partition debts, not post-petition debts, provided the debts are not
vyavaharika, i.e, taken for immoral or illegal purposes, or to use the apt expression of Derrett,
private, untainted, pre-partition debts

The doctrine of pious obligation of sons to discharge the personal debts of the father is
peculiar to Hindu law (Smritis). The basis of it is the spiritual benefit which will accrue to the
soul of the Father by the discharge of his earthly obligations. Thus, the liability does not arise
from the contract.

The obligation exists whether the sons are major or minor, or whether the father is alive or
dead. The liability exists even during the father’s lifetime (then, both son and father will be
liable), and subsists so long as the father is liable
 DEBTS UNDER DAYABHAGA JOINT FAMILY

The Dayabhaga School of law does not distinguish between joint family property and
separate property, because the property is based on the principle of inheritance. The shares of
coparcenary property are clear under Dayabhaga School and do not fluctuate with the birth of
the member or death of the member. The property is returned to the heir by way of
inheritance upon the death of the coparcener. The foundation of a coparcener is first laid on
the birth of the son, under the Mitakshara school of law. Therefore, if a Hindu governed by
mitakshara law has a son born to him the father and the son become a coparcener at once the
foundation of the coparcener is laid on the death of the father under dayabhaga school. There
is no coparcenary until and unless the father is alive. It is only on the death that coparcenary
is first created leaving two or more male members.

The following are the rules of the Dayabhaga Law of debts contracted by a Hindu for his
private purposes–

a) The separate property of a Hindu is liable for payment of his debt under all circumstances.

b) The interest of a coparcener, being defined, one is liable for the payment of his debt not
only in his lifetime but also after his death.

c) The father being the sole owner of the ancestral property can sell or mortgage the whole of
it in his hand for payment of his debt though tainted with immorality or illegality.

Thus, in short, the Dayabhaga Law of Debts is very simple, for no question can arise under
Dayabhaga Law as to the special liability of the sons, grandsons and great-grandsons, as it
did under the Mitakshara Law before the 2005 Amendment of the Hindu Succession Act. In
other words, the doctrine of pious obligation was never recognized under the Dayabhaga
Law.

The reason is that, under the Dayabhaga Law, sons do not acquire, by birth, any interest in
the ancestral property, as they did earlier under Mitakshara Law.
 PIOUS OBLIGATION OF THE SON

Pious obligation in a general understanding is a son’s liability to pay off his father’s debts.
Here when talking about the debt it only refers to vyavaharika debt i.e., debts conducted for
legal purposes only which excludes avyavaharika debts i.e. debts taken for immoral and
unethical purposes. The Doctrine of Pious Obligation is that doctrine under which sons are
made liable to discharge father’s debts. It is solely religious. But the doctrine inevitably
postulates that the debts of the father must be vyavaharika. If the debts are not vyavaharika,
the doctrine of pious obligation shall not apply to the sons.

Pious' means religious and sacred. ‘Pious obligation’ means a duty of a Hindu male
essentially, due to the deep devotion that he puts into his religion. Hindu law states that ‘He
who having received a sum lent or the like does not repay it to the owner will be born
hereafter in his creditors house a slave, a servant or a woman or a quadruped’. As per Hindu
scriptures, it is the holy, pious, and most importantly a pious duty of a son to pay off or
discharge his father's debts. This religious obligation is attached to a son of a Hindu as well as
son’s son and son’s son’s son, on the ground that all the three are coparceners with others by
their birth. It is being believed that non-payment of debts is a sin(paap) and any person, who
died leaving the debts behind, cannot go to heaven(Swarg). The 'Putra' i.e., the son, grandson,
and great-grandson by paying off such debts, reliefs his parted ancestor from the debt and
enables him to reach the heaven and thus enables him to attain Moksha. This duty or
obligation of a son to repay the debts of the deceased ancestor is based on a special doctrine,
known as "The Doctrine of Pious Obligation" However; this obligation applies only to non-
avyavaharika debts.

According to Indian legal literature or most practices seen in the earlier era, a son is desired
because of the reasons that he would pay the debts spiritual and worldly of his father.
Because of the reasons that the pious obligation of the son is based on the authority of the
religion, therefore, as a logical deduction, it follows that the son is not to pay the debt of his
father which are irreligious, the reasons this are: i) First, religious authorities are absolving
the son from the liability to pay debts of the father which are irreligious in the same way as
there are religious authorities which impose liability on sons to pay off the debt of their
fathers. ii) Second, to make the son liable to pay irreligious debt would amount to the
contribution and augmentation of irreligious acts of the father. When it is said that repaying
off the father’s debts is a pious obligation of a son and his descendants, the son is liable to
pay the principal amount as well as interest to that amount, whereas the grandson is required
only to pay the principal amount and the great-grandson was required to pay only to the
extent he had the joint family property in his hands. He was not personally liable though the
son and grandson were personally liable. The Privy Council, in the case of Sat Narain v Rai
Bahadur Sri Kishan Das, observed, that the doctrine of pious obligation was not based on
the necessity for the protection of third parties, but was based on the pious obligation of the
sons to pay off father’s debts. Originally the emphasis on the payments of debts is so strong
that according to the dictates of the Dharmashastra, if a man has to pay both his and his
father’s debts, he must pay the latter first, and as amongst the father’s and grandfather’s, the
grandfather’s debts should be paid first.
 TYPES OF DEBTS

When it is being discussed about the doctrine of pious obligation i.e., son’s liability to pay off
his descendants’ debts

It is to be noted that there are two types of Debts; Vyavaharika and Avyavaharika. A son’s
pious obligation is only to pay his ancestor's Vyavaharika debts i.e., debts taken for legal
purposes. Avyavaharika debts are not binding upon sons.

Vyavaharika Debts: it is a just debt for which a father is liable to alienate family lands, as
opposed to his sons, which means debts which are due, but are not immoral, not illegal, or are
not opposed to law and public policy. The debt that is not contracted as an act of recklessness
extravagance or to seek illicit pleasure, such debt shall be binding upon sons. Sons are liable
to pay debts such as telephone bills, the liability of father’s mesne profits, or torts committed
by him concerning profits. When debts were contracted for defending himself in a lawsuit,
debts contracted for conducting business, etc such debts shall be binding upon sons.

Avyavaharika Debts: a son is not liable to pay avyavaharika debts of his father, grandfather,
or great grandfather. Debts contracted for a purpose that could not be justified following
religious tenets or a person’s dharma could not extend the obligation on the son or male
descendants for its repayment. Payments of debts that were avyavaharika were not the
spiritual debts or religious duty of sons.

As said by Narada, “A father must no pay the debts of his son but a son must pay a debt
contracted by the father excepting those debts which have been contracted from love, anger,
spirituous liquor, games or bailment”. Now, when it is talked about Pious Obligation, it is the
liability of Sons, Grandsons, and Great Grandsons of the deceased Hindu male to pay off his
vyavaharika debts so that his soul can rest in peace in heaven.

A son, son’s son (grandson), and a son’s son’s son (great-grandson) is responsible to pay off
their father’s, father’s father, and father’s father’s father debts because they are coparceners to
the deceased, as they are included in the fourth generation counting from the deceased. The
liability on them is not personal and the debts are to be paid from their share in ancestral
property depending upon who is liable to repay the debts at that time.
ANTECEDENT DEBT

A debt, the payment of which permits the father to sell the joint family property, must be an
antecedent debt. An antecedent debt therefore, means a debt that is not only prior in time and
independent in origin of that particular dealing or alienation, such as a mortgage, sale etc., but
it must also have been taken by the father himself, and not for an immoral or illegal purpose.

Two conditions are necessary to bind the entire joint family properties, including the share of
the sons viz.:

(i) the debt should be an antecedent one; and

(ii) (ii) it should not have been incurred for an immoral purpose.

Instances when a son is liable to pay and not liable to pay even in the case of
vyavaharika debts.

Ø A son is liable to pay for his father’s debts, if the father contracted the debt when
coparcenary was intact

Ø A son is liable to pay if the debt contracted was before partition but repaying it off rose
after partition

Ø A son is not liable to pay if the debt was contracted by the father after the partition of the
joint family property, as the son would now have separated and taken his share which now
has become his personal property, and thereby not liable to pay off his father’s debts.
 BURDEN OF PROOF
Initially, it so happened that sons could easily escape by simply proving that it was
avyavaharika debt. But, as a result, it turned out to be a loss for the creditors who lend the
money. So later the courts came to the point that it is the burden on the sons to prove that the
debts taken from the creditor is taken for as an avyavaharika debt; to protect the rights of the
creditor such step was taken.
MATERIAL TIME FOR EXAMINING THE NATURE OF DEBT

To examine whether a debt is avyavaharika or not, the relevant time is the inception when
the loan was raised. Where the debt was contracted for an illegal or immoral purpose,
payment of it will not be binding on the son. But where receiving money was lawful at the
time of the receipt, the subsequent commission of an offense by the father will not absolve
the son from his obligation to pay the debts. Therefore, where receiving money was not a
criminal offense, a subsequent misappropriation by the father would still bind the son, unless
the misappropriation was done under circumstances that rendered the act criminal.43 For
example, a father purchases a house subject to a mortgage and later, removes materials,
which act diminishes the security

Venkata Subbarao J. has propounded the twin rules for determining whether a debt contracted
by the father would be binding on the sons. They are as follows:

(i) if the debt, in its inception, is not immoral, subsequent dishonesty of the father
does not exempt the son, and
(ii) (ii) it is not every impropriety or every lapse from right conduct, that stamps the
debt as immoral. The son can claim immunity only when the father’s conduct is
utterly repugnant to good morals or is grossly unjust or flagrantly dishonest.
JUDICIAL INTERPRETATION OF THE PIOUS OBLIGATION
OF SON
Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni; Supreme Court in
this case observed that, “Whether the 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. Further, where the sons are joint with their father
and the debts have been contracted by the father for his benefit, the sons are liable to pay the
debts provided they are not incurred for illegal or immoral purposes.”

Apentala Raghavaiah v. Boggawarapu Peda Ammayya 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 the 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 of the petitioner for the benefit of 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.

Suraj BunsiKoer (Mother and guardian of the infant sons) v. Proshad Singh Here, in the
case, a man namely AditSahai made debt and contracted himself to pay Rs 13,000 to Bolaki
Choudhury, (from whom he took his debt). He pledged his whole property and his shares in a
mouzah. On failing to pay back the debt and after his death, the onus came to his minor sons,
who in this case are being represented by their mother. In the meantime, Bolaki auctioned the
property to a 3rd party. The mother of the minor sons namely Suraj Bansi Koer filed a suit on
behalf of the minor sons stating they are coparceners to their late father’s property and the
alienation of the property is not fair. The subordinate court accepted it and gave the decision
in the plaintiff’s favor. The court said that there was no justifying necessity for taking Rs
13000 debt. It was also observed that Bolaki failed to enquire as to why such debt is
contracted even after knowing Adit Sahai well and the life he lived. It was held that the debt
taken was avyavaharika debt and sons have no obligation to pay it back. But since the
purchase i.e., the 3rd party is at no fault, so Adit Sahai’s share in the joint family property is
to be given away to them and not the whole. But it is to be noted that after the
commencement of the Hindu Succession Act, 2005 and amendment to section 6 sub-section
4. no court shall recognize any right of any person to recover any kind of debts contracted by
their father, grandfather, or great grandfather on the grounds of Pious Obligation. But if such
debt is contracted before the 2005 amendment then the sons and the descendants shall be
liable to pay as per Section 6, subsection 4 clause b of the Hindu Succession Amendment Act,
2005.
 THE POSITION AFTER THE 2005 AMENDMENT

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.
Post the feminist movements have questioned ‘male-stream’ thinking in ways that have
struck at discriminatory status quo in politics, society, and all the other major fields. No doubt
after the commencement of the Hindu Succession Amendment Act, of 2005, daughters have
also become coparceners in their father’s property.
As given in section 6 –“Devolution of interest in coparcenary property. — (1) On and from
the commencement of the Hindu Succession (Amendment) Act, 2005 in a Joint Hindu family
governed by the Mitakshara law, the daughter of a coparcener shall, — (a) by birth become a
coparcener in her own right in the same manner as the son; (b) have the same rights in the
coparcenary property as she would have had if she had been a son; (c) be subject to the same
liabilities in respect of the said coparcenary property as that of a son”
Thus, as specified in section 6 subsection 1 and clause a, b, and c it can be essentially
concluded that daughters being coparceners to their father’s property like the sons, has same
rights as that of a son and also same liabilities like that of a son respectively.
Thus, if the doctrine of Pious Obligation would have been in existence in the present time,
then daughters too would have been held liable to pay off their father’s vyavaharika debts.
But since, post-2005 an amendment has been made and as per section 4, the pious obligation
has ceased to exist (although with exceptions as given in clause a and b of the same)
daughters are not liable to pay off father’s debt be it of any kind.
 CONCLUSION

The doctrine of pious obligation under which sons, son’s son, and son’s son’s son are held
liable to pay off their father's debts is based solely on religious norms and practices going on
for ages; the doctrine inevitably preaches that the father's debts must be vyavaharikai.e., legal
and not immoral. If the debts are not vyavaharika or are avyavaharika the doctrine of pious
obligation cannot be taken into consideration. In case of debts contracted by the father, for his
benefit, at a point of time when he is a coparcener to the joint family property along 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, has since
metamorphosed into one of legal liability but this does not, however, extend to debts tainted
with immorality. The liability is not 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 joint family property. If it is found out that 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 repayment of such debts. Again, it is to be noted that post-2005 i.e., after the
amendment to the Hindu Succession Act, daughters are coparceners to their father’s property
as well, having the same rights and liabilities as that of a son. But the doctrine of Pious
Obligation has ceased to exist post-2005 amendment and thus there is no obligation on the
part of sons and daughters to pay off their ancestor’s debts.
 REFRENCES
1. Dr Paras Diwan, Modern Hindu Law, 334, (23rd edn.. 2016).
2. Sat Narain v. Rai Bahadur Sri Kishan Das.
3. Pr. N. Sm. Chockalingam v. Official Assigne of Madrass.
4. Dr Poonam Pradhan Saxena, Family Law Lectures Family Law II, 198, (3rd edn. 2013).

5. After the commencement of the Hindu Succession (Amendment) Act, 2005 -no court
shall recognise 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: Provided that in the case of any debt contracted
before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing
contained in this sub-section shall affect— (a) the right of any creditor to proceed
against the son, grandson or great-grandson, as the case may be, or (b) any alienation
made in respect of or in satisfaction of, any such debt, and any such right or alienation
shall be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession (Amendment)
Act, 2005 had not been enacted.
6. Hindu Succession Act 1956.