|Sr. No.||Topics||Page no.|
|5.||Debts Under Mitakshara Law||4|
|6.||What is avyavaharika debt?||5|
|7.||What is antecedent debt?||6|
|9.||Debts Under Dayabhaga Law||7|
|10.||Difference between dayabhga and mitakshara law||8|
The term “Hindu Undivided Family” derives its meaning and rules from the two schools of Hindu Law. The ancient Schools of Hindu laws are believed to be of two types and where in
existence before the Hindu law was codified with the Hindu Succession Act of 1956.
1. The Mitakshara School, and
2. The Dayabhaga School or Bengal School
In Bengal and Assam, the Dayabhaga School was established, and in the entire of India apart from Bengal and Assam Mitakshara School was broadened. The two main interpreters who wrote on Mitakshara and Dayabhaga Schools were Vijnaneshwar and Jeenutavahan respectively.
Mitakshara, Dayabhaga, Avyavaharika debt, Antecedent debt, Coparcener
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 enjoyed 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 under 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.
Note: The doctrine of the pious obligation of the sons to pay their father’s debt has been abolished by Section 6(4) of the Hindu Succession Act, as it exists after the Hindu Succession (Amendment) Act, 2005. Therefore, the law discussed in this respect below is the prior law as it stood before the Hindu Succession (Amendment Act, 2005)
What is Son’s Pious Obligation history?
If a debt contracted by the father has not been repaired 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 it in common, or the manager shall pay it for the rest, no matter whether he may be the 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.
Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them.
Mitakshara is further divided into five sub-schools namely
- Banaras Hindu school
- Mithila school
- Maharashtra school
- Punjab school
- Dravida or madras school
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.
Debts Under Mitakshara Law:
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.
The meaning of coparcenary under mitakshara law is clarified in the case of Moro Vishwanath v. Ganesh Vithal. The Supreme Court summarized the situation and noted that all the coparceners in a quasi-corporate capacity kept the coparcener property in the collective possession of members of the Undivided Family.
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.
It depends upon the relationship between the father and the son. The doctrine is not intended in any sense for the benefit of the creditor. “He who having received a sum lent or the like does not repay it to the owner will be born hereafter in his creditor’s house, a slave, a servant, a woman, or a quadrupted” (a text of Brihaspati).
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 life-time (then, both son and father will be liable), and subsists so long as the father is liable. Thus, for a time-barred debt or when the father is adjudicated insolvent, the son is not liable. The father in a Hindu Joint Family may sell or mortgage the whole of 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 an antecedent to the alienation;
b) the debt was not incurred for an immoral purpose (untainted debt), and;
3) the father acted like a prudent man and did not sacrifice the property for an
inadequate consideration [Prasad v Govindswami Mudaliar.
What is an avyavaharika debt?
The term avyavaharika has been variously translated by writers and judges. Colebrook’s rendition of it, as those which are for “causes repugnant to good morals” has been approved by the Supreme Court in Jakati v. Borkar. Broadly speaking, it has come to mean those debts that are taken for “illegal or immoral purposes.”
Since the shastric elaboration of the avyavaharika debts is no longer valid and since the case law is numerous and confused, it is difficult to spell out precisely as to which debts are avyavaharika in nature. On the basis of shastric texts, Mayne has enumerated debts which sons need not to pay under the following nine heads:
a) debts due for spirituous liquor;
b) alcoholic drinks;
c) promises without consideration;
d) promises made out of lust;
e) unpaid trolls;
f) debts due to gambling;
h) commercial debts;
i) debts that are not vyavaharika in nature.
The burden of proof that the debt is ‘tainted’ is not on the creditor, but on the son. The son is not liable to pay debt incurred by the father in the circumstances which would render the father liable to a criminal prosecution; but he is liable for money which the father has to account in a purely civil capacity. Where the father’s act which gives rise to debt is a mere tort or breach of contract, the debt is not vyavaharika, and the son will be liable for it. It may be noted that a time-barred debt is not avyavaharika.
What is antecedent debt?
Lord Dunedin of the Privy Council defined the antecedent debt as antecedent in fact as well as time,” i.e, not a part of the transaction impeached. Thus two conditions are necessary:
- The debt must be prior in time.
- The debt must be prior in fact.
Therefore, it implies an indebtedness of the father–prior in time to, and, independent in origin of, the particular dealing with the family property, whether by way of sale or mortgage, which it is sought to enforce against the son. Thus, the father has no power to alienate his sons’ share, after a partition between him and his son, even though the alienation is in respect of a debt contracted before the partition.
Antecedent debt need not be for legal necessity or for the benefit of the estate. It may be even for a new business started by the father or it may even be for his own personal benefit.
Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of Hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance, and joint family. According to Kane, it was incorporated in between 1090-1130 A.D.
Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs, which was restricted by the Mitakshara school.
In Dayabhaga school various other commentaries were followed such as:
- Dattaka Chandrika
The property is inherited in the Dayabhaga School after the death of the person who was in possession of it. The doctrine of the son’s birthright and the devolution of property by survivorship had limited space in Dayabhaga School. It is established that in the Mitakshara School neither the father nor any other coparcener could normally disaffect the joint family property. Under the Dayabhaga School, there is no such constraint and each coparcener has the complete right of separation of his exclusive share in the joint family property To put it simply, Mitakshara was based on the ‘principle of ownership by birth, and Dayabagha on the principle of ownership by death’
Debts Under Dayabhaga Law:
The dayabhaga joint family is the reflection of family members’ ability to live together. In food, worship, and land the family is communal. The dayabhaga school is based on the principle of religious effectiveness or spiritual gain and its rule of succession. It means the person who gives the decreased religious advantage is entitled to inheritance rather than the other.
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 the 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 became a coparcener at once the foundation of the coparcener is laid on the death of the father under dayabhaga school. There is no coparcency 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 Dayabhaga Law of debts contracted by a Hindu for his own 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.
The rule of Dayabhaga Law relating to debts contracted for joint-family purposes are the same as those of Mitakshara Law.
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. Further, each coparcener under the Dayabhaga Law takes a defined share in the coparcener property, which he can deal with at his pleasure, and which, on his death, passes to his heirs and not to the surviving coparceners.
Difference between Mitakshara and Dayabhaga Schools:
Both the schools fundamentally differ from each other on certain fundamental matters:
- The difference in relation to the joint property
Under the Mitakshara school, the right to ancestral property arises by birth. Hence the son becomes the co-owner of the property sharing similar rights as of the father. While in Dayabhaga school the right to ancestral property is only given after the death of the last owner. It does not recognize the birthright of any individual over ancestral property.
- Under the Mitakshara school the father does not possess the absolute right to alienate the property but in dayabhaga, the father has the absolute right of alienation of the ancestral property as he is the sole owner of that property during his lifetime.
- Under Mitakshara school the son attains the right to become the co-owner of the property he can ask for the partition of the ancestral property even against the father and can demand for his share but in the case of Dayabhaga school son has no right to ask for the partition of ancestral property against his father.
- Under Mitakshara school the survivorship rule is prevalent. In case of the death of any member in the joint family, his interest shall pass to other members of the family. While in case of the Dayabhaga school the interest of the member on their death shall pass on to their heirs like widows, sons, and daughters.
- Under the Mitakshara school the members can’t dispose of their share of the property while undivided while in daya bhaga the members of the family enjoy absolute right to dispose of their property.
- The difference as regards to inheritance
- Under Mitakshara the rule of blood relationship or consanguinity is followed in case of inheritance whereas in case of Dayabhaga school the inheritance is governed by the rule of the offering of pinda.
- Under Mitakshara school the cognates are postponed to agnates or not preferred upon agnates while in case of Dayabhaga cognates and agnates.
- Mitakshara school expanded its recognition to a very limited extent in regards to the recognition of the doctrine of factum valet but Dayabhaga, on the other hand, has expanded its recognition to the full extent.
- Under the Hindu law the difference between the Mitakshara school and the Dayabhaga school is not recognized as in the present scenario there exists one uniform law of succession for all the Hindus.
Regardless of the fact law governing the Hindu undivided family are not codified and written, other than the framework provided by Hindu Laws and Hindu Succession Act,1956, the legal treatments to be applied to the issues arising out of discrepancies in the family have been well-founded by the principles and judgments given by the apex court.
The doctrine of a pious obligation under which sons are held liable to discharge their father’s debts is based solely on religious considerations; the doctrine inevitably postulates that the father’s debts must be avyavahika. If the debts are avyavahika, 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 recapitulate.
Thus, the liability of the interest of the sons in such cases to discharge the debts incurred by the father is undisputed, though the method and manner of its enforcement by the creditor would vary and the sons must be afforded every opportunity, be it in a suit or execution proceedings to question the binding nature of the debt or liability.
Submitted by Samridhi Srivastava
III Sem, BBA LLB (Hons)
ICFAI UNIVERSITY DEHRADUN
 Moro Vishwanath v. Ganesh Vithal, 10 Bom HCR 444
 Introduction to Modern Hindu Law 274.
 (1982)1 SCC 411
 1959 S.C. 282
 Brij Narayan v. Mangala Pd., 1924 P.C. 59; see also Mysore, 416