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DOCTRINE OF PIOUS OBLIGATION - BY N.LALITHA SREE

INTRODUCTION 
Pious obligation’ means the moral liability of sons to pay off or discharge their father’s non-avyavaharik debts. The debts borrowed may not be of legal necessity or for benefit of estate. Thus, if the father is the Karta of a Hindu joint family, he may alienate the coparcenary property for discharging the antecedent debts. The sons are under the obligation to recover such alienated property by repaying the debts. 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 in common, or the manager shall pay it for the rest, no matter whether he may be 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.
HISTORY
Pious obligation has its origin in the conceptual of smriti writers who regard non-payment of debts as a positive sin, the evil consequences of which follow the un discharged debtor even in the after world. It is for the purpose of rescuing the father from his torments in the next world that an obligations imposed upon the sons to pay their father’s debts from the judgement rendered by Mukhherjea in sidheshwar v. Bhubaneshwar Prasad case. According to Smiriti Law, there is a pious obligation on the sons and grandsons to pay the debts contracted by the father and grandfather. According to Privy Council this obligation extends to great grandsons also because all the male descendants up to three generations constitute coparcenary and every coparcener is under a religious obligation to pay the debt contracted by their ancestor, provided such debt was not taken for an immoral or unlawful purpose. The concept of pious obligation has its origin in Dharmashastras, according to which non-payment of debt is a sin which results in unbearable sufferings in the next world. Hence the debts must be paid off in all circumstances provided it was not for immoral and illegal purposes. Vrihaspati has said, “If the father is no longer alive the debt must be paid by his sons. The father’s debt must be paid first of all, and after that a man’s own debts, but a debt contracted by the paternal grandfather must always be paid before these two events. The father’s debts on being proved, must be paid by the sons as if their own, the grandfather’s debt must be paid by his son’s son without interest, but the son of a grandson need pay it at all. Sons shall not be made to pay (a debt incurred by their father) for spirituous liquor, for idle gift, for promises made under influence of love or wrath, or for surety ship, nor the balance of a fine or toll liquidated in part by their father. Yajyavalkya says, “A son has not to pay in this world father’s debt incurred for spirituous liquor, for gratification of lust or gambling, nor a fine, nor what remains unpaid of a toll; nor idle gifts.” But in case of debts for purposes other than the above, on the death of the father, or on his going abroad, or suffering from some incurable disease, the debt contracted by him would be payable by his sons and grandsons. The Mitakshara has presented the entire proposition in stronger words. According to it when the father has gone abroad or is suffering from some incurable disease, the liability to pay the debt contracted by him would lie on the sons and grandsons irrespective of the fact that the father had no property. There are reasons for fixing this liability on sons and grandsons. The liability to pay the debt is in the order, viz., in absence of father the son and in absence of son the grandson. It is worth noting that the doctrine of pious obligation does not extend the liability to females notwithstanding she has been given a share in the joint family property on partition. Where the wife gets a share on partition between husband, sons and herself, still she would not be under any obligations to pay the debt of the ancestor (father).
AFTER AMENDMENT OF 2005
After the commencement of the Hindu Succession (Amendment) Act, 1005, 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.
CONCLUSION
The Doctrine of Pious Obligation under which sons are held liable to discharge their father’s debts is based solely on religious consideration, the doctrine inevitably postulated that the father’s debts must be vyavaharika if the debts are not vyavaharika or are avyavaharika 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. 

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