PIOUS OBLIGATION - A DETAILED STUDY

5.3. Family Law-II

Submitted By-
Yash Goyal
UID: SM0118062
3rd Year, 5th Semester

Faculty in Charge-
Dr. Gitanjali Ghosh
Assistant Professor of Law

National Law University and Judicial Academy, Assam

December 17th, 2020
 TABLE OF CONTENTS

Index of Authorities………………………………………………………………………...ii

Table of Cases………………………………………………………………………………ii

Statutes Referred……………………………………………………………………………ii

List of Abbreviation………………………………………………………………………...ii

1.Introduction…………………………………………………………………………
…..1-3

1.1 Overview………………………………………………………………………….....1

1.2 Review of Literature………………………………………………………………...2

1.3 Statement of Problem……………………………………………………………….2

1.4 Aims and Objectives………………………………………………………………...2

1.5 Research Questions……………………………………………………………….....2

1.6 Scope & Limitations……………………………………………………………...….3

1.7 Research Methodology……………………………………………………………….3

2.Doctrine of Pious
Obligation…………………………………………………………...4-6
[2.1] Basic
concept………………………………………………………………………...4
[2.2] History
…………………………………………………………………………….4-5
[2.3] Avyavaharik
Debts…………………………………………………………………..6

3.Changes in the doctrine of pious

obligation…………………………………………..7-10
[3.1] In the Hindu Succession Act, 1956………………………………………………..7-9
[3.2] In the Hindu Succession (Amendment) Act , 2005………………………………9-10

4.Liability of Women in the doctrine of Pious obligation…………………………..

……..11
5.Conclusion . ……………………………………………………………………………..12

i
 Bibliography………………………………………………………………………
……..v

INDEX OF AUTHORITIES

TABLE OF CASES

1. Income-Tax Officer Vs K. Krishnamachari……………………………………………………10

2. Income - Tax v. Mukund
Girji……………………………………………………………………..8
3. Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal……………………………………………6
4. Nandan Sahay v. Bank of Bihar…………………………………………………………………10
5. Nanomi Babuasin And Ors. vs Modhun Mohun And Ors……………………………………..7
6. Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar…………………………………..7
7. Padminibai v. Arvind Purandhar Murabatte…………………………………………………10
8. Sridhar v. Mahidhar……………………………………………………………………………….5
9. S. M. Jakati & Another vs S. M. Borkar & Others…………………………………………….6
10. Wealth-Tax, Kanpur v. Chandersen…………………………………………………………….8

TABLE OF STATUTES

1956- Hindu Succession Act.

2005 -Hindu Succession (Amendment) act.

TABLE OF ABBREVIATION
1. AIR All India Report

2. Ors. Others

ii
3. Edn. Edition

4. ILR India Law Reporter

5. Mad Madras

6. ibid ibedium

7. SC Supreme Court

8. v. Versus

iii
Abstract

Pious Obligation is a kind of religious or devotional obligation on the part of a son, a son's
son or a great grandson to repay the debts of his father, grandfather or great grandfather.
But when it comes to debt, male descendants are only liable to pay for the legitimate debts of
their ancestor, i.e. vyavaharika debts. The paper deals with the doctrine of the Pious Duty
and its applicability that existed prior to 2005 i.e. that it does not apply after the amendment
of the Hindu Succession Act in 2005 and also analyzes the case law and the applicability of
the doctrine to daughters.
Keywords - Pious , Obligation, Avyavaharik, daughters.

iv
 Chapter-1

Introduction

[1.1]Overview

Under Hindu rule, joint families are not limited to succession and a coparcenery system.
Some responsibilities are also required of the succeeding generation, one of them being from
the sons for the repayment of their father's debts during his lifetime. Pious meaning spiritual ,
and under the doctrine of pious obligation, a son is required to repay the loan and debts of his
father from the portion of the ancestral property he keeps under a religious duty towards his
faith. However when the debts are avyavaharika, that is, incurred for unethical or unlawful
reasons, this obligation ceases to exist. Moral and legal duties are of similar origin, but they
vary from one another in their implementation technique. In general, all duties originate on
moral grounds. Where the actions of an individual impact the interests, the rights and
responsibilities of a person other than the doer are justified than limits on the acts of the doer
imposed by statute. The avoidance of harm to individuals is a legitimate reason for creating a
law and imposing limits on the conduct of individuals that inflict harm. One such moral
obligation is the pious obligation of the son, where priority over legal rights was given to the
moral obligation. The paper will deal with the changes in the laws related to pious obligation
from ancient Indian literature to introduction of Hindu Succession act 1956 and the Hindu
Succession (Amendment) Act , 2005. It also discusses the liability of women under the
doctrine of pious obligation.

[1.2] Literature Review

Basis and Nature of Pious obligation1 this article deals with the doctrine of pious
obligation which gives a detailed description of the concept and meaning of pious obligation
and also provides information of what the ancient indian literature has to say about it. It also
explains the concept of types of debt which a son is liable to pay under the concept of pious
obligation and explains judicial approach towards it. It also gives a detailed explanation of

1
VIJENDER KUMAR, "BASIS AND NATURE OF PIOUS OBLIGATION OF SON TO PAY FATHER'S DEBT VIS-À-VIS
STATUTORY MODIFICATIONS IN HINDU LAW"

1
the changes in the laws related to pious obligation under the Hindu Succession act 1956 and
the amendment act 2005.

[1.3]Statement of Problem
The researcher has tried to analyse the concept of pious obligation and to study its history
and changes brought in the doctrine

[1.4] Research Questions

1. What is the basic concept of Pious obligation and history related to the concept?
2. What are the changes brought in the doctrine according to the latest laws?
3. What is the liability of women according to the doctrine of pious obligation?

[1.5] Aim(s) and Objective(s)

Aim(s)-Aim of this project is to understand the concept of Pious obligation and its evolution
from ancient to contemporary world.

Objective(s)-

1) To understand in details as to what is the basic concept of pious obligation and the history
behind this doctrine
2) To study how the doctrine has evolved and the liability of women under it.

[1.6] Scope and Limitation

Scope- Scope of this project is to study about the concept of Pious obligation and changes
under it

Limitations- Due to Covid-19 there was less material and books to refer for and reach to
various authentic research paper was limited.

2
[1.7] Research Methodology

Approach to Research: In this project doctrinal research was involved. Doctrinal Research
is a research in which secondary sources are used and materials are collected from libraries,

archives, etc. Books, journals, articles were used while making this project.

Types of Research: Explanatory type of research was used in this project, because the
project topic was not relatively new and unheard of and also because various concepts were
needed to be explained.

Sources of Data collection: Secondary source of data collection was used which involves in
collection of data from books, articles, websites, etc. No surveys or case studies were
conducted.

Mode of Citation: The researcher have followed a uniform mode of citation for the course of
this project. The mode of citation followed is the 20th Bluebook format of citation.

3
 Chapter-2

DOCTRINE OF PIOUS OBLIGATION

2.1 Basic definition of pious obligation

“Pious” means real, religious, dedicated, respectful. 'Pious obligation refers to a duty of a
Hindu because of a strong devotion to religion. It is the blessed duty of a son, according to
Hindu scriptures, to pay off or discharge the debts of his parent.

A son is under a pious obligation under the Hindu Law to discharge the debts of his father
from his ancestral property even if he has not benefited from the debts, provided that the
debts are not avyavaharika. The sons get exempted from their duty to release their father's
debt from family assets only if one of the debts has been tainted with immorality or illegality.
The responsibility of the son for the debt must be examined with reference to its nature when
the debt was first incurred, the duty that is placed on the son to be religious and moral. If
there was nothing illegal or repugnant to good morals at the beginning, the subsequent
dishonesty of the father is that not discharging his duty will not relieve the son of liability for
the debt.

2.2 Pious obligation in Ancient Indian literature

Ancient Indian legal literature is unique in its approach as to the authority of morals which
was recognized even by the judiciary during the British Indian period, when precedence to
moral obligations was given over legal rights. Pious obligation of the son is one such moral
obligation where precedence to moral obligation was given over legal rights.2 It is because of
this that the son was desired so as to repay the spiritual debt owed to his ancestors and to free
his father.

The text in the dharmasastras state that the son was desired not for spiritual reasons alone, but
one of the most important reasons was the father's desire to secure guarantee for the discharge
of his secular duty through the birth of a son, the most important of the liabilities being the

2
Vijender Kumar, "Basis and Nature of Pious Obligation of Son to Pay Father's Debt vis-à-vis Statutory
Modifications in Hindu Law"

4
obligation to pay off one's debt. Not only did the non-payment of debt effect the debtor's next
life, it also made the debtor's life unbearable in this world itself.

The Sridhar v. Mahidhar case shows that the son's duty was an autonomous duty based on
religious texts. In fact, it was acted upon regardless of whether the son inherited the father's
property or not. The responsibility was independent of the receipt of assets.

The effects of non-payment of debt are suggested by Narada. With the death of the debtor,
the obligation does not die; the son must then pay the debt, if a man fails to pay what was lent
or promised by him on demand, that sum (together with the interest) continues to increase
until it amounts to a hundred crores (one billion). After the  hundred crores have been
completed , he is born again, in every successive existence as a slave in his creditor's house to
repay his debt .3    

Brihaspati states that first of all the father's debt must be paid, and then the man's own debt;
but before these two, a debt incurred by the paternal grandfather must always be paid. The
father's debt must be paid (by the sons of his son) without interest when proven; but the son
of a grandson does not need to pay it at all.4

According to Katyayana, a debt contracted by the grandfather that is known to the father and
is not paid by him the liability of the grandson is only without interest to the degree of paying
the principal. He also says that at the time of partition a debt incurred by the father should be
cleared and Narada says that the son should do his best to absolve his father from debt.
Brihaspati says that (on becoming equal to the principal). (on becoming equal to the
principal). (on becoming equal to the principal). If the father is no longer alive, his sons must
repay the debt.

Yajnavalkya says that the father’s debt should be paid by his sons and grandsons if the father
is dead or gone abroad or hit by trouble; if refused, it is proven by witnesses.

3
Supra.2
4
Ibid

5
2.3 Avyavaharik debts

Colebrooke defined avyavaharik debt as a liability incurred for a cause repugnant to good
morals. If a debt at the beginning is not tainted with illegality, it may be binding on the son.
In such circumstances, the son may not be able to claim immunity from the debts. However if
the action of the father that caused the incurrence of the debt is absolutely repugnant to good
morality or is grossly immoral or flagrantly deceptive, then the son will definitely demand
protection from its liability.5 In the case of ‘S.M. Jakati and Ors. vs. S.M. Borkar and
Ors.’6 in the Hon’ble Supreme Court the term ‘avyavaharika debt’ was explained.

The burden of proof to prove that the debts incurred by the father will fall under the
avyavaharik will lie on the son.  Based on the judgments of the Privy Council, the Supreme
Court in Luhar Marit Lal Nagji v. Doshi Jayantilal Jethalal7 expressed the principles thus
that the sons who challenge the alienations made by the father need to show that the precursor
debts were immoral as well as that the buyers saw that they were so corrupt.

5
View Dhillon, DOCTRINE OF PIOUS OBLIGATION (2020),
https://itsmehappening.wordpress.com/2017/06/28/doctrine-of-pious-obligation/ (last visited Dec 6, 2020).
6
AIR 1959 SC 282
7
1960 AIR 964

6
 Chapter 3

CHANGES IN THE DOCTRINE OF PIOUS OBLIGATION

3.1 THE HINDU SUCCESSION ACT 1956

The introduction of the Hindu Succession Act 1956 has very far ranging effect on the
existence and constitution of the joint Hindu family. Though the Act does not attempt to
make changes in the joint family, its provisions have implemented drastic changes in the
structure of the Hindu joint family regulated by the Mitakshara rule. The Muttayan
Chettiyar case8 and the Nanomi Babuasin9 case have reduced the responsibility of the son
to the extent of the father's and the son's joint assets. It is the estate where the son acquires the
right of ownership by birth. The Judicial Committee claimed in Nanomi Babuasin that the
pious duty of the son's birthright on ancestral property is harmful. The duty to pay the debt is
not harmful to the right of possession, if it had been detrimental the obligation would have
occurred even in the case of the debt being polluted with immorality or illegality. It is also
founded on the egalitarian principle that if one takes advantage of the burden under a
regulation, it must also be acknowledged under that rule. There is little or no distinction
between the doctrine's piety and its fair existence.

The Act has an impact that has very far-reaching effects on joint family property. The rule of
survivorship and the doctrine of ownership by birth were affected primarily by sections 6, 8
and 30 of the Act, which made significant inroads into the two doctrines. The doctrine of
pious duty is based on these two doctrines. As noted by the Judicial Committee: Destructive
as the concept of autonomous coparcenary rights in sons can be ,the judgments have for some
time, established the principle that sons cannot if not tainted with immorality, establish their
rights against their father's alienation from a previous debt, or against his creditor's remedies
for their debts. On this significant topic of shared estate responsibility, their lordships agree
that there is no conflict of authority now.10

8
Muttayan Chettiar v. Sangili Vira Pandia Chinnatambiar
9
(1885) ILR 12 Cal 21
10
Supra.2

7
The birthright of the son in ancestral property which developed absolutely and
uninterruptedly on the son by survivorship is curtailed, rather drastically curtailed, by virtue
of the provisions of Section 6 of the Hindu Succession Act 1956.11

The significance, in the light of the impact of Section 6 of the Hindu Succession Act 1956, is
that the interest of the dying intestate coparcener is not borne by the survivorship, but by the
provisions of the Act. The joint family is partitioned shortly before the death of the
coparcener. Now, in the case of a father who dies intestate and is indebted to his interest
which is transferred by inheritance to the heirs specified in Class I of the Schedule,
responsibility for the payment of the deceased's debt and the responsibility of the heirs shall
be absolute, including that of the son, in respect of the share which he receives as heir to
Class I of the Schedule. Neither the son nor any other heir can claim an exemption from the
duty to pay the debt of the deceased on the ground that the debt was unethical, unlawful or
avyavaharika. Thus a pious duty focused on moral sanctions has become a legal obligation.
The essence of the common estate has been lost.

In Income - Tax v. Mukund Girji,12the High Court of Andhra Pradesh held that the property
handed over to a son by inheritance in 1958, after the Act came into force, was the property
of the son in his individual capacity and not of the son's common family. His sons have no
right of birth in those properties and therefore cannot claim any share or claim for division of
those properties.

This decision of the High Court of Andhra Pradesh, like the judgments of the High Court of
Madras and the High Court of Madhya Pradesh, has a devastating effect on ancestral property
and is much more like the case law of the Dayabhaga School. 

This method has been finalized by the Supreme Court in Commissioner of Wealth-Tax,
Kanpur v. Chandersen.13 Now the share which a son obtains in the capacity of heir to Class-
I of the Schedule will become his separate property, in which the son of his son will not take

11
Supra.2
12
Income - Tax v. Mukund Girji, (1983) 144 ITR 18 (AP).
13
Wealth-Tax, Kanpur v. Chandersen , AIR 1986 SC 1753

8
an interest by birth. Therefore the foundation of the son's responsibility for the right of birth
to an ancestral property has been eroded; consequently, the very basis of the religious duty to
pay the father's debt has become. The very foundation of the pious duty of course, was
destroyed.

This reading of the scheme of Sections 8 and 6 of the Act by the Supreme Court is both
rational in line with the theory of the Hindu Succession Act and in line with the social and
legal requirements of society and the constitution. The stance of the Supreme Court is also
consistent with the doctrine of equality enshrined in the Constitution. Since no debtor can
avoid the burden of paying off his debts in Dayabhaga school and in society in general on the
ground that the debt was incurred for unlawful or immoral reasons, the decision of the
Supreme Court is sound on social and legal grounds. The son cannot use the shield of his
father's unlawful and unethical debts to defend property inherited under the Act.

3.2 Hindu succession (amendment) act 2005

The new S.6 also abolishes the Doctrine of the Pious Obligation which existed before under
uncodified Hindu law and provides that after the beginning of the 2005 amendment, no court
shall recognise any right to proceed against a son, grandson or grand-grandson for the
recovery of any debt owed by his father, grandfather or grand-grandfather solely on the basis
of a pious obligation.14

However this progressive clause, which abolishes the age-old Doctrine of the Pious Duty, is
not retrospective in its application. In fact, it is specifically provided that in the event of any
debt contracted prior to the start of the 2005 amendment, this clause does not have an affect
(a) the right of any creditor to take action against a son, grandson or grand-grandson, as the
case may be, who was born or adopted before the 2005 amendment;

(b) Any alienation made in respect of, or to the satisfaction of any other alienation.
Any such right or alienation in paragraph (a) or (b) above is enforceable in accordance with
the Doctrine of the Pious Duty in the same way and to the same degree as if the 2005
amendment had not been adopted.
14
Theory of Pious Obligation of a Son to Pay Debts of Father - Unlocking-the-future.com, https://unlocking-
the-future.com/theory-of-pious-obligation-of-a-son-to-pay-debts-of-father-explained/ (last visited Dec 11,
2020).

9
Previous partitions not affected:

It also specifies that nothing in the amended section shall refer to a partition effected before
20 December 2004. For this reason, the term "partition" refers to any partition effected by the
execution of a Deed of Partition properly recorded under the Registration Act, 1908, or a
partition effected by a court order.15

15
Supra.15

10
 Chapter-4

LIABILITY OF WOMEN UNDER THE DOCTRINE OF PIOUS OBLIGATION

As mentioned earlier in the Acts, the daughter is made a full coparcener, and this makes her a
part of her birth family and her marriage to another family does not change that status. In
other words, she is a member of two families, her birth family, and her husband's family—a
previously unknown legal status. It remains to be seen if such a modification of the definition
of the 'family' that was in fact affected by the amendments would be maintained if it is
challenged.
The doctrine of pious duty has created difficulties in the sense of codified law, and more so in
the context of women. It has been argued that the 'moral duty' to pay off the debts of deceased
relatives that occur in the case of male coparceners does not extend to the widow. In Keshav
Nandan Sahay v. Bank of Bihar16, the court held that the sons were responsible for pre-
partition debts incurred by their deceased father in respect of some bank loans while the
widow was not. The court felt that on the division between the coparcener and his sons, the
widow had a share in her own right and not as a mere representative of her husband. This
status of her separates her from her sons with respect to their pious obligations. The
Karnataka High Court (with the latest amendments) took the same view, although before the
changes were implemented. In the case of Padminibai v. Arvind Purandhar Murabatte 17,
the courts found that as the wife is not the person entitled to be born to a share in the
coparcenario of Mitakshara, the doctrine of a pious obligation is no longer subject to the
doctrine. The wife was exempt from a pious duty merely because she had no birth right in the
coparcenary, on the grounds of the Karnataka High Court reasoning. Therefore it must
conclude that if a daughter takes a share of the coparcenery Mitakshara by birth, she is
responsible now. This must be determined by the courts in order to gain clarity on the matter.
In another case of 1984 Income-Tax Officer Vs K. Krishnamachari 18, it was stated that the
daughters have no pious obligation and cannot pay the debt of her father.

16
AIR 1977 Pat 185
17
AIR 1989 Kant 120
18
1985 11 ITD 194 Hyd

11
 CONCLUSION

The doctrine of pious duty is based on religious concern in which sons are held liable to
discharge the debts of their parent.

If a person's debts are not paid and he dies in a state of indebtedness, it is believed that his
soul will have to face evil consequences, and it is his sons' responsibility to save him from
such evil consequences. Therefore the cornerstone of the doctrine is moral and its sole
purpose is to confer spiritual gain to the father.

It is not intended for the benefit of the lender in any way. The unavoidable doctrine postulates
that the father's debts must not be avyavaharika, which is the pious duty of the sons to repay.
The Hindu succession act of 1956 gave more importance to the legal aspect rather than the
religious aspect. The Muttayan Chettiyar case and the Nanomi Babuasin case have reduced
the responsibility of the son to the extent of the father's and the son's joint assets. It is the
estate where the son acquires the right of ownership by birth.

It should be noted that the doctrine of pious obligation does not extend the liability to women,
despite the fact that she was given a share in the partitioned joint family land. Where the wife
earns a share in the division between husband, sons and herself, she will still not be obliged
to pay the ancestor's debt (father).

After the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to
proceed against a son, grandson or great-grandfather for the recovery of any debt owed by his
father, grandfather or great-grandfather solely on the basis of the Hindu law's pious duty to
discharge any such debt from that son, grandson or great-grandfather.

12
 BIBLIOGRAPHY

List of Article(s):

 Vijender Kumar, "Basis and Nature of Pious Obligation of Son to Pay Father's Debt vis-
à-vis Statutory Modifications in Hindu Law"

 Theory of Pious Obligation of a Son to Pay Debts of Father - Unlocking-the-future.com,

https://unlocking-the-future.com/theory-of-pious-obligation-of-a-son-to-pay-debts-of-
father-explained/ (last visited Dec 11, 2020).

 Legal India, family law sons pious obligation Legalserviceindia.com (2020),

http://www.legalserviceindia.com/articles/sons_p.htm#:~:text=After%20the
%20commencement%20of%20the,Hindu%20law%2C%20of%20such%20son%2C (last
visited Dec 8, 2020).

 Doctrine of Pious Obligation and Antecedent debts | Lexpeeps, Lexpeeps,

https://lexpeeps.in/doctrine-of-pious-obligation-and-antecedent-debts-a-sons-duty-to-
pay-off-his-fathers-debts/ (last visited Dec 10, 2020).

 View Dhillon, DOCTRINE OF PIOUS OBLIGATION (2020),

https://itsmehappening.wordpress.com/2017/06/28/doctrine-of-pious-obligation/ (last
visited Dec 6, 2020).