What is the Pious Obligation? [H.C.S 2007]

 

The Doctrine of Pious Obligation has its origin in the Smriti which regard non-payment of debt as a positive sin. 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.

 

Brihaspati says that 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 debt; but a debt contracted by the paternal grandfather must always be paid before these two events. The grandfather’s debt must be paid by his son’s son without interest, but the son of a grandson need not pay it at all.

 

The doctrine has been modified in some respects by judicial decisions. Under the law as it now stands the obligation of the son is not a personal obligation existing irrespective of the receipt of any assets. It is a liability confined to the assets received by him in his share of the joint family property or to his interest in the same. The obligation exists whether the sons are major or minor or whether the father is alive or dead. If the debs have been contracted by the father and they are not immoral or irreligious, the interest of the sons in the coparcenary property can always be made liable for such debts. The creditor could legally attach and put up to sale the right, title and interest of the sons in the joint family property. But, the liability of the son is restricted to debts contracted by the father before partition.

 

The fundamental rule is that a Hindu son is not liable for debt contracted by his father which is Avyavaharika i.e., illegal, dishonest or immoral but is liable only for debt contracted which is Vyavaharika i.e., lawful. The facts, circumstances and conduct of the father are to be looked into to ascertain the nature and character of the debt.

 

By the Amendment Act of 2005 which commencement from 9-9-2005, this archaic Doctrine of Pious Obligation has been abrogated u/s. 6(4). However, this provision is not applicable if the debt is contracted before the commencement of the Act. As a general rule, this amendment is not applicable in case the partition is effected before 20-12-2004.

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