“This doctrine, as is well-known, has its origin in the conception of Smriti-writers, who regard non-payment of debt as a positive sign, 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 obligation is imposed upon the sons to pay their father’s debts.
This doctrine, as formulated in the original texts, has indeed been modified in some respects by judicial decisions. Under the law, as it now stands, the obligation of the sons (which expression includes throughout sons’ sons and sons’ sons’ sons) is not a personal obligation, existing irrespective of the receipt of any assets. It is a liability confined to the assets received by the son as his share in the joint family property or to his interest in the same.
The obligation exists whether the sons are major or minor, and whether the father is alive or dead. If the debts have been contracted by the father, and they are not immoral or illegal, the interest of the sons in the coparcenary property can always be made liable for such debts.” (Sidheshwar Mukherjee v. Bhubaneswar Prasad, 1954 S.C.R. 177)
The Madras High Court had held that a family debt, which was not tainted with immorality or illegality, was binding on the sons, and some provision has to be made for its discharge from the estate at the time of the final partition. (M. Shanmugha Udayar v. Sivanandam, A.I.R. Mad. 123)
Nature of Liability:
1. The liability is not personal. It is limited only to the son’s interest in the coparcenary property.
2. The liability is limited only to sons who are joint with the father. The separated sons are not liable for debts incurred by the father after partition. A separated son would be liable for a preparation debt, only to the extent of the share he has obtained on the partition.
Enforcement of liability against son after partition:
(a) If the suit was filed against the father before partition, the son would be liable for the debt contracted before partition.
(b) If the suit was filed against the father after the partition, the decree could not be executed against the son.
(c) But if the father died in the above case pending the suit, and if the son was brought on record as the legal representative, the decree could be executed against the son. (Pannalal v. Naraini, 1952 S.C.R. 544)
3. The liability of the son subsisted so long as the liability of the father subsisted. The pious obligation to discharge the lawful debts of the father ceased on the debts becoming time-barred against the father.
The Full Bench of the Gujarat High Court has held that if a father is adjudicated insolvent, the pious obligation of his son for pre-partition debts of the father comes to an end. (Jayantilal v. Shrikant, A.I.R. 1980 Guj. 67)
4. The liability of the grandson and great-grandson was also similar to that of the son.
5. The liability was not joint or joint and several with the ancestor. It did not arise from contract, as in the case of the father, but from the obligation of religion and piety imposed upon the sons under the Hindu law to discharge those debts of the father which are not immoral.
In a Bombay case, Surajmal v. Motiram (41 Bom. I.R. 1175), Lokur J. has summed up the position of this aspect of Hindu law (as it then existed) by laying down the following six propositions:
(i) A son is under a pious obligation to pay his father’s debts (not immoral or illegal) incurred when they were joint, and this obligation continues even after a partition between them, but is limited to the extent of his share in the joint family property.
(ii) The son is not liable for a debt contracted by the father after partition.
(iii) A decree against the father alone, passed when he was joint with the son, is binding upon the son even after partition, though it is open to him to impeach it either in execution proceedings or in a separate suit, on the ground that the debt for which the decree was passed was incurred for an immoral or illegal purpose.
(iv) So long as the father and the son are joint, such a decree may be executed against the father alone, and the entire joint family property, including the sons’s share, may be attached and sold for the satisfaction of the decree, subject to the son’s right to oppose the attachment and sale or to have them set aside on the aforesaid ground.
(v) If such decree is to be executed after the son has separated from his father, the son must be made a party to the execution proceedings, if his separated share is to be proceeded against; otherwise, its sale will not be binding on the son.
(vi) A decree passed after the partition against the father alone for his pre-partition debts (not immoral or illegal) is not binding on the separated son. After partition, a decree must be obtained against the son if his separated share is to be held liable.
In Prasad v. Govindaswami Mudaliar, (1982) 1 S.C.C. the Supreme Court examined the scope of this rule of Hindu law (as it then existed) and reiterated the following propositions:
(i) The privilege of alienating even the whole of joint family property for payment of debts is available to the father, grandfather and great-grandfather qua the son or grandson only. No other person of the joint family has any such privilege.
(ii) The father in a joint Hindu family may sell or mortgage the joint family property, including the son’s interest therein, to discharge a debt contracted by him for his own personal benefit. Such an alienation will bind the sons, provided that:
(a) The debt was antecedent to the alienation;
(b) The debt was not incurred for an immoral purpose; and
(c) The father acted like a prudent man, and did not sacrifice the property for an inadequate consideration.
(iii) The validity of such an alienation rests upon the pious duty of the son to discharge his father’s debts.
(iv) An “antecedent debt” is one which is antecedent in fact as well as in time, i.e., the debt must be truly independent, and not part of the transaction which is impeached. The debt may even be one incurred in connection with a trade started by the father.