This article is written by Abha Singhal. In this article, the author has tried to explain the origin and evolution of the doctrine of pious obligation. Moving forward, the author has tried to explain its relevance in the present times and has further elucidated the concept with the help of landmark judgments.
Introduction
In the Hindu legal system and mythology, it is considered essential to repay all debts before the death, and if the deceased was not able to do so before his/her death, the responsibility of the same, as per the Hindu law, lies on the son to pay off the debts so as to provide a way to heaven to the deceased. As per Brihaspati, if a person dies without repaying his debts, then he will be born as a servant or slave or woman or quadruped in the house of the creditor. The doctrine of pious obligation has originated from the ancient texts, customs and usages of Hindu law, which emphasizes that the son has a responsibility to free the soul from indebtedness and to discharge it to the heavenly forces. The doctrine of pious obligation covers those debts that are incurred for legal and moral purposes, and not for something which is considered illegal and immoral in the eyes of law and society at large. After the amendment in the Hindu Succession (Amendment) Act of 2005, daughters were given equal rights in the ancestral property as that of the son, which questioned the relevancy and applicability of the doctrine of pious obligation in the post-2005 scenario.
Historical background and meaning of the doctrine of pious obligation
The doctrine of pious obligation is based on the idea of piety and religion under the Hindu Law. As per the scriptures, it is considered holy that the son, a grandson, and a great-grandson pay off his father’s debts, and this religious obligation comes from the fact that they are all coparceners in the family property.
As per the Hindu tradition, if a Hindu dies without paying off all his debts, they may have to face negative consequences of the same in the afterlife and the said act will be considered a sin that anyone who dies without paying off all the debts cannot go to heaven. In this regard, the ancient scholar Brihaspati said that whoever after receiving a sum of money or property fails to repay it to the owner shall be born in the creditor’s house as a slave, a servant, a woman, or a quadruped. It is to be kept in mind that the purpose of this doctrine is not to punish the deceased, or to benefit the creditor, but to ensure the well-being of the deceased in the afterlife.
In the case of Anthonyswamy v. M.R. Chinnaswami (1969), the notion of pious responsibility was thought to be a counterbalance to the son’s claim on the property, rather than a free requirement. It is so because the doctrine of pious obligation which is based on the ideas of justice, equity, and good conscience, is not just a religious doctrine but now it has passed into the realm of law. To elucidate the same, the doctrine of pious obligation has become an integral part of the Mitakshara School of Hindu Law wherein a son, along with his father, gets the right to the family property the moment he is born.
Debt repayment is critical, according to the Dharmashastra. If a man must pay both his own and his father’s debts, the latter must be paid first. Furthermore, the grandfather’s debts should be paid first, followed by the father’s debts. This demonstrates that debt repayment is not merely a religious responsibility, but also a societal obligation recognised in Indian legal literature for centuries.
Meaning of pious obligation
The pious means something religious and devout. Obligation here implies a duty or karma of a Hindu person. Pious obligation essentially implies an obligation a Hindu person has towards the god so as to ensure the spiritual salvation of the ancestors. The doctrine of pious obligation means a moral and religious duty that is imposed on the son to repay the debts of his deceased and debt-ridden father, grandfather, or great-grandfather.
The term ‘pious’ means something sacred and religious, and ‘obligation’ implies a duty. The doctrine of Pious Obligation is a fundamental concept under the Hindu law that can be traced back to the ancient Hindu scriptures according to which, the debts of an individual, be it moral or/and financial, must be repaid. The doctrine of pious obligation explains the long-standing tradition of religious nature, wherein the son is held liable to pay off his father’s debts. The debts here only refer to Vyavaharika debts, i.e., the debts which are only for legal purposes and which exclude Avyavaharika debts which are the debts taken for unethical and immoral purposes. It is based on the belief that when a debt contracted by the father has not been repaid during his lifetime, then it must be restored, after his death, by his own son.
In the case of Sat Narain v Rai Bahadur Sri Kishan Das (1936), it was observed that the idea of pious responsibility is founded on the sons’ pious obligation to pay off their father’s obligations, rather than on the necessity to safeguard third parties.
Scope of liability in the doctrine of pious obligation
Son’s liability to pay debts
The liability under the doctrine of pious obligation is not personal in nature, as it is restricted to the amount of share obtained in ancestral property. As per the Mitakshara school of thought, the son, grandson, and great-grandson have a right to the family property after their birth, which is essentially known as the Mitakshara coparcenery which is made up of three generations who are eligible to take part in the ancestral property. Thus, these three generations of male descendants are liable under the doctrine of pious obligation. Moreover, the liability to pay off father’s, grandfather’s, or great-grandfather’s is restricted to the principal amount only and not the interest on it. Before the British Era, the son and grandson had a personal duty to pay the debt, whereas the great-grandson’s liability was restricted to his portion of the joint family inheritance. During the British Empire, a son, grandson, or great-grandson’s responsibility was restricted to his portion of the joint family estate. As a result, even if the son has some personal property, he is not obligated to repay the father’s debts.
Why sons are preferred for the doctrine of pious obligation?
In traditional Hindu societies, no obligation was faced by female descendants to discharge or repay the debts of their forefathers. It is so because women were often perceived as incapable of taking on such responsibilities and were considered extensions of a man’s property or estate. This shows the patriarchal mindset and stereotypes that existed in society at that point in time. Because of such unjust notions and convictions, sons or male descendants were considered worthy to have a share in the ancestral property and the liability to repay or discharge the debts of the forefathers is a corollary to the right they get in the ancestral property. The father’s superior interest in the property over the son converts the pious duty of the son into a legal one for the son who succeeds in such property in the future.
Liability is limited to religious debts
Moreover, It is to be noted that this doctrine is only applicable to those debts that are considered religious in nature. Debts that are irreligious do not fall under this doctrine. There are two reasons for not considering irreligious debts to be paid by the son. Firstly, just as we have religious authorities that impose this obligation on the son to pay off his father’s debts which are of a religious nature, similarly, we also have authorities that absolve the son from paying off the debts of his father which are irreligious or immoral. Secondly, if the son pays off his father’s irreligious debts, then it is believed that he is contributing to his father’s irreligious acts.
Type of debts under doctrine of pious obligation
While discussing this doctrine of pious obligation, it is important to note that there are two types of debts: Vyavaharika debts and Avyavaharika debts. The doctrine of pious obligation only applies to the Vyavaharika debts, which are the debts taken for a legal purpose. On the other hand, Avyavaharika debts are those debts not justified by religious tenets and hence are not binding upon the sons.
In the case of Vyavaharika obligations, a father must alienate family lands to pay off just obligations or just debts, but his sons are not. The term just obligations or just debts implies those debts that are incurred but are not immoral, illegal, or in violation of the rule of law or public policy. Debts incurred for the sake of defending oneself in a lawsuit, conducting business, or other permissible reasons are binding upon the son. Sons are not bound by debts contracted foolishly, for luxury, or for criminal pleasure. However, there are instances when a son is required to pay and times when he is not. A son is bound to pay his father’s responsibilities if the debt was contracted before partition. Still, repayment arose after partition or if the debt was contracted before partition, but repayment emerged after partition. A son, on the other hand, is not compelled to pay if the debt was contracted by the father after the division of the joint family property, because the son would have separated and seized his share, which is now his personal property and is thus not obligated to pay off his father’s debts.
Under Avyavaharika debts, a son is not liable to pay his father’s, grandfather’s, or great-grandfather’s debts since these debts are not according to the religious tenets or for a legal purpose. Moreover, such debts are not spiritual in nature. It is to be noted that initially, the sons were able to easily evade their responsibility to pay off debts by saying that the debt was Avyavaharika, and this resulted in an undue loss to the creditors. Consequently, the burden of proof was shifted onto sons to show that the debts incurred from the creditor are Avyavaharika in nature. As per the case of Luhar Amrit v. Doshi, the doctrine of pious obligation explains that the debts of the father must be repaid by the son in order to give salvation to the deceased father. For the same, the debts must be for legal and moral purposes, and for something illegal and immoral in nature. If the debts are avyavaharik meaning illegal and immoral, then the doctrine of pious obligation cannot be invoked. The expression avyavaharik is based on the text of Usanas, which has been quoted by Mitakshara school in the text of Yajvavalkya smriti. According to Usanas, If the debt is not vyavaharik, then it is not to be paid by the son.
Doctrine of pious obligation : a modern perspective
It is believed that the doctrine of pious obligation reflects a patriarchal mindset and gender bias, and is considered an obligation that creates inequality in society. In old Hindu society, female descendants were not obligated to repay their forefathers’ debts. Moreover, women were frequently viewed as incapable of shouldering such tasks as paying debts and were viewed as extensions of a man’s property and estate.
Eminent Hindu jurists such as Narada and Katayayana stated that when a man dies without a son or inheritance, his wife becomes his “sole property,” and the guy who “enjoys the wife” is liable to pay up the obligation. Daughters or other female offspring had no obligation to repay their forefathers’ debts, according to Hindu literature. Feminist movements of the 20th century played an important role in challenging the discriminatory status quo in a variety of professions. Feminist activists and researchers have advocated in the legal arena for the eradication of gender-based prejudices in the legal system, particularly in property and inheritance rules.
Abolition of doctrine of pious obligation
After the commencement of the Hindu Succession Act of 2005, the requirement of solely focusing on the sons was abolished as the daughters were granted an equal right in the ancestral property. To elaborate on this, it was questioned that since daughters now have a right in the ancestral property too, why only the sons should be held responsible for repaying the debts of their forefathers, and not daughters? Section 6 of this legislation provides for the devolution of interest in the coparcenary property, explaining that a daughter shall, by birth, become a coparcener in her own right as of the start of the Hindu Succession legislation of 2005. The daughter shall have the same entitlement to the property as if she were the family’s son. Under Section 6(4) of this legislation, no court shall recognize any right against a son, grandson, or great-grandson for the recovery or repayment of the debt solely on the grounds of the doctrine of pious obligation under Hindu law. However, if the debt was incurred before the year 2005, then they will be held liable under the doctrine of pious obligation.
Judicial interpretation of the doctrine of pious obligation
Luhar Amrit Lal Nagji v. Doshi Jayantilal Jethalal (1960)
Facts
In this case, the petitioner suffered significant losses as a result of his investing in gold and silver, and he attempted to repay the obligation by taking out a mortgage loan. The mortgagee obtained a decree from the court and sought to execute it by sale of the property mortgaged. After the death of the petitioner, the sons and wife sued the mortgagee for the execution of the decree and said that the decree was not binding since the debt was immoral and illegal in nature, and hence would not come under the doctrine of pious obligation. The trial court found the case to be in petitioner’s favour, and the same was affirmed by the district court by way of an appeal. However, on a second appeal, when this case went on to the High Court which favoured the respondents the Supreme Court affirmed the same.
Issue
Whether the son of the petitioner be held liable to pay off this debt?
Held
The trial court ordered in Sons and Wife’s favour that the debt was immoral in nature, and on appeal, the district judge affirmed its decision. Moreover, on the second appeal, the former Saurashtra High Court held that it was for the plaintiffs to prove that the debt incurred was immoral (Avyavaharika) but since they had no evidence to prove the same, they were held not entitled to this decree. Since they had no evidence to discharge that onus, they were not entitled to a decree. The Hon’ble Supreme Court upheld this view and the appeal was declared dismissed
Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni (1978)
Facts
In this case, Dattatraya Kulkarni, the husband of Plaintiff 1 and father of Plaintiff 2 had borrowed a tagai loan for the construction of wells. A piece of land was given as security for the loan. The loan was advanced, but the borrower failed to repay the time as per the terms and conditions. A revenue recovery proceeding began, and an auction for sale was issued, consequently, it was purchased by the defendant and the sale was confirmed. Then a suit was filed for recovery of possession of the land contending that the sale was illegal since the land was not liable for Tagai loan as it is not a debt which comes under the Hindu law, and hence the respondents were not bound to pay their father’s debts.
Issue
The main issue before the Hon’ble Supreme Court was whether the doctrine of pious obligation applied to the Tagai loan.
Held
The Hon’ble Supreme Court held that the doctrine of pious obligation did not apply to the Tagai loan because this doctrine was the principle of Hindu law and was only applicable to debts contracted by a Hindu father for his own benefit and not for any illegal or immoral purpose. Moreover, the court also held that the Tagai loan was not a debt under Hindu law, but a statutory liability arising from a contract between the respondent and the government, which is governed by the provisions of the Land Improvement Loans Act 1883, hence it won’t be applicable.
Keshav Nandan Sahay v. Bank of Bihar (1976)
Facts
In this case, The Bank of Bihar obtained two money decrees against Deonandan Sahay, who had died in the year 1962. The Bank of Bihar filed execution cases against his legal heirs, which also include his wife, sons, and daughters. Then the sons filed petitions under Sections 47 and 60 of the Civil Procedure Code, and under Sections 14 and 15 of the Bihar Money-lenders Act, challenging the execution of the said decrees against their ancestral property on the ground of the doctrine of pious obligation.
Issue
The issue is whether the sons of Deonandan Sahay were to be held liable to pay off the debts of their father under the doctrine of pious obligation, and also, whether the ancestral property which is in their hands to be attached and sold for the execution and satisfaction of the decrees.
Facts
In this case, the Hon’ble Patna High Court held that the sons of Deonandan Sahay were to be held liable to pay off the debts under the doctrine of pious obligation because the debts incurred were not for any immoral or illegal purposes, and were incurred before the enactment of the Hindu Succession (Amendment) Act, 2005. Additionally, the Hon’ble court also held that the ancestral property in their hands was liable to be attached and sold for the execution and satisfaction of the decrees, as the doctrine of pious obligation was not abolished by the Bihar Money-Lenders Act. However, the Hon’ble Court also held that the doctrine of pious obligation did not apply to female heirs of Deonandan Sahay, and they were not to be held liable to pay off their father’s debts or to have their shares in the ancestral property.
Conclusion
The doctrine of pious obligation is a traditional concept that has been practised under Hindu law for years. This doctrine is essentially based on the moral and religious duty of a son, grandson, or great-grandson to repay the debts of their deceased and debt-ridden father, grandfather, or great-grandfather unless the debt that has been incurred is for an immoral or illegal purpose. Moreover, the doctrine reflects the patriarchal notions that are prevailing in the society at that point in time, and which has contributed a great deal towards the gender bias and inequality issue in the society. The doctrine also implies that it is the son’s liability to pay off his father’s debts which is linked to the ancestral property, by virtue of him being born with rights to have a share in the property.
However, due to constant evolution, the doctrine of pious obligation has undergone significant challenges and changes in the modern era. The Hindu Succession (Amendment) Act, 2005 has abolished the doctrine of pious obligation by providing that no son shall be held liable to pay any debt of their father solely by reason of him being the heir of the deceased. Additionally, this amendment has essentially lifted the liability of the son alone to pay off the debts of the father by giving these same rights to daughters to pay off the debts and to have an equal share in the ancestral property. This has also helped remove gender discrimination in the society. The abolition of the doctrine of pious obligation is a progressive concept toward achieving gender equality and social justice in Indian society.
Frequently Asked Questions (FAQs)
What is the origin of the doctrine of pious obligation?
The doctrine of pious obligation is based on the concepts of piety and religion. According to the Hindu religion, when a Hindu dies and his soul is left indebted, the deceased may have to face evil consequences. The doctrine of pious obligation has originated from the customs and ancient texts under the Hindu law, which recognises the son’s, the grandson’s, or great-grandson’s responsibility to free the soul of his father from the debt and depart the soul for heaven.
What is an Avyavaharika debt?
An Anyavaharika debt is a debt incurred for immoral or illegal purposes that cannot be recovered under the doctrine of pious religion, as this doctrine only deals with debts that are moral and legal in nature.
What is the effect of partition of the joint property on the liability under the doctrine of pious obligation?
The liability under the doctrine of pious obligation is not affected by the partition of the joint family property.
What is the scope of the doctrine of pious obligation under Hindu law?
The doctrine of pious obligation is applicable to the son, the grandson, and the great-grandson in a family, by virtue of their being the coparceners by birth in a Hindu undivided family. Under this doctrine, the liability of the son is only limited to the principal amount of the debt and not the debt which occurs on it. Additionally, under this doctrine of pious obligation, the liability of the son is also limited to his share in the joint family property only. It is to be noted that the doctrine of pious obligation does not apply to the daughter, the daughter’s son, or the widow.
What are the kinds of debts that are covered under the doctrine of pious obligation?
There are two types of debts that are covered under the doctrine of pious obligation, namely vyavaharika, and avyavaharika. Vyavaharika debts are those debts that are incurred for legal and moral purposes. On the other hand, avyavaharika debts are not covered under the doctrine of pious obligation and it covers those debts that are incurred for immoral or illegal purposes such as prostitution, gambling, and many more.
What are the exceptions to the doctrine of pious obligation under Hindu law?
The doctrine of pious obligation does not apply to the following situations and circumstances:
If the debt is incurred before the birth of the son, the son is not liable to pay the same unless the debt has to be incurred for the benefit of the family.
If the father of the son is alive and not insolvent, then the son is not liable to pay off the debts under the doctrine of pious obligation.
If the laws of limitation bar the debt incurred, then the son is not liable to pay the same, unless the son has acknowledged the debt or paid interest on it,
If the debt has been incurred after the partition of the family property, the son cannot be held liable to pay the same, unless he was a party to the partition of the said joint family property.
What is the legal status or validity of the doctrine of pious obligation under Hindu law?
The doctrine of pious obligation, although recognised and accepted by the courts of various judgments, it is still not a codified law. However, this doctrine of pious obligation has been abolished and deemed illegal by the Hindu Succession Act of 2005, which explains that no court of law shall take cognizance of or recognise that the son, the grandson, or the great-grandson shall be held liable to pay off the debts of the joint family property solely on the ground of pious obligation under the Hindu law. The doctrine of pious obligation I prospective in nature, and does not affect the debts that were incurred before the year 2005.
References
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4384255
- The Doctrine of Pious Obligation and its Relevance under Hindu Law in the Present Time-Available at HeinOnline https://heinonline.org/HOL/Page?handle=hein.journals/lgllckjnl2&div=23&g_sent=1&casa_token=&collection=journals
