All About Avyavaharika Debt

KEY TAKEAWAYS

• It's important to highlight that following the enactment of the Hindu Succession Act in 2005 and the subsequent amendment to Section 6 (4), no court shall uphold any individual’s right to recover debts contracted by their father, grandfather or great-grandfather based on Pious obligation. 
• Under Hindu law, it contains some of conflicting principles regarding the “Rights of sons in ancestral property” and their duty to repay their father’s debts. On the one hand, sons have independent coparcenary rights by birth, granting them vested interests in ancestral property.
• Under Hindu law, the sons can be forgiven from their obligation to repay their father’s debt only when those debts were tainted with immorality on their part or illegality. 

INTRODUCTION

The term “Vyavaharika” comes from a Sanskrit word, this particular word means “a normal activity of a normal person”. The expression “Vyavaharika debt” means “A debt, which is legally binding”. Vyavaharika debt is also known as “Antecedent Debt”. The word “Antecedent” means “Prior or previous”. The expression “Antecedent Debt” denotes a debt antecedent in fact and in time as well. It aims to protect the interest of the third person. Mohammedan law prohibits lending money for interest and hence it is void. Whereas Hindu Law permits lending and borrowing for interest and hence it is valid. Hindu law enunciates that, “the son who received a sum lent or the like does not repay it to the owner (lender) will be born hereafter in hid creditor’s (lenders) house a slave a servant, a woman or a quadruped.

Karta as a head or manager of the joint family is empowered to alienate i.e. to sell or mortgage the joint family property including the son's interest therein to discharge a debt contracted by him for his benefit, such alienation is binding on the sons provided the following conditions are satisfied:

• The debt is antecedent
• It was not contracted for an immoral purpose

The very object of the doctrine of “Antecedent Debt” is to protect the interest of the third person (lender/creditor), who advances/lends a sum of money to the Karta of a joint family. 

In the case of “Brij Narain V. Mangal Prasad”, the father alienated a part of the joint family property, by executing a mortgage deed. Later, he executed a second mortgage deed on the same property for the interest accrued on the principal amount. In an action by the creditor (Mortgagee) of the second mortgage, it was held that the debt was antecedent to the second mortgage and binding on the sons. 

The concept of “Pious Obligation” is commonly understood as a son’s responsibility to settle his father’s lawful debts. It specifically pertains to debts incurred for legitimate purposes, excluding those obtained for unethical or immoral reasons. This doctrine holds that sons bear the duty to repay their father’s debts, primarily based on religious beliefs. However, it is essential to note that this obligation applies only to lawful debts (Vyavaharika), not to those acquired through wrongful means (Avyavahrika).

The “Doctrine of Pious Obligation” asserts that the father’s debts must be lawful for the sons to be held accountable. If the debts are deemed unlawful, this doctrine does not impose any obligation on the sons. The act of fulfilling this duty is believed to contribute to the salvation of souls, as descendants settle the debts on behalf of their ancestors.

The term “Hindu Undivided Family” (HUF) lacks a specific definition in legal statutes; instead, its meaning and regulations are derived from the two predominant schools of Hindu law: the “Dayabhaga School” and the “Mitakshara School” elsewhere in the country. 

In recent years, the concept of HUF has gained traction due to its advantageous business opportunities and is structured under the provisions of the Hindu Succession Act of 1956. Notably, HUFs enjoy an exemption from income tax obligations, thereby reducing the overall tax burden on the family and bolstering their financial liquidity. Nonetheless, managing a business within a HUF requires careful oversight, considering both the incurred liabilities and the associated legal ramifications. 

Within the framework of Hindu legal tradition and mythology, the imperative to settle debts before death is emphasized. According to Hindu beliefs, if debts remain unpaid at the time of death, the responsibility falls upon the son to discharge them, facilitating the deceased’s journey to the afterlife. This notion finds resonance in ancient texts, customs, and practices of Hindu law, giving rise to indebtedness and fulfilment of its obligations to the divine realm. 

Crucially, the “Doctrine of Pious Obligation” encompasses debts incurred for lawful and moral purposes, excluding those obtained through illegal or immoral means. Following the 2005 amendment to the Hindu Successions Act, granting daughters equal rights to ancestral property as sons, questions have risen regarding the continued relevance and applicability of the “Doctrine of Pious Obligation” in the post-2005 landscape.

WHAT IS AVYAVAHARIKA DEBT?

Under Hindu law, the son’s duty to settle his father’s debt encompasses only non-Vyavaharika (or Vyavaharika) debts. Avyavaharika debts, defined by their illegality or immorality, do not fall within its purview. Colebrooke delineated Avyavahrika debts as liabilities incurred for causes contrary to good morals. Such debts, deemed unrighteous or improper, are not considered Vyavahrika or lawful debts, as they contravene societal and legal standards. Since debt repayment is perceived as a religious and spiritual obligation, the purpose behind the debt’s contraction assumes paramount importance. If a debt was incurred for a purpose unjustifiable by religious tenets or personal ethics, the obligation does not extend to the son or male descendants for repayment. Sons are not spiritually or religiously bound to repay debts categorized as Avyavahrika. 

According to Vrihaspati, sons are not obligated to pay debts incurred by their father or spirituous liquor, idle gifts, promises made under the influence of love or conflict, suretyship, or the balance of a fine or toll liquidated in part by their father. Vyasa further expounds that sons are not liable for debts unrelated to their father’s obligations, such as fines, taxes, or improper debts, Narada asserts that while a father should not pay debts contracted for his son, a son must pay debts incurred by the farther, except those arising from love, anger, spiritous liquor, games or bailments. 

While an exact English definition of “Avyavahrika” remains elusive, Hindu law writers and the judiciary have attempted to elucidate its meaning. Knight J describes Avyavahrika as unusual or not sanctioned by law, stemming from the father’s irrationalities or whims. Sadasiva Iyer defines it as a debt unsupported by legal documents and not enforceable in favour of the creditor. Mookerjee characterises it as actions not lawful, usual, or customary. The Supreme Court has endorsed Colebrooke’s definition as accurate. 

Avyavaharika debts encompass those arising from contracts for improper or illegal purposes, or actions amounting to criminal offences. Courts have identified various instances of Avyavaharika debts, relieving sons of legal obligation. These include payment under a decree for stolen funds obtained by the father, loans for the father's vices, expenses for the granddaughter of the father’s concubine’s marriage, criminal misappropriation, liabilities for property dispossessions, fines for criminal offences, misappropriation by minors under the father’s guardianship, damages awarded for defamation or assault, fraudulent lawsuits, and other immoral or illegal actions by the father. 

In a decision by a full bench of the Bombay High Court, Avyavahrika's debt was defined as illegal, dishonest, or immoral, sons are exempt from liability without the need to prove their father’s criminal liability. The father can alienate joint family property to settle personal debts, but sons can challenge this if debts are tainted. This doctrine applies both during the father’s life and after his death, as affirmed in legal precedents.

The father retains the authority to dispose of joint family property to settle his debts, and the son can contest it only if the debts are tainted. Thus, the father can indirectly affect joint family property for this purpose, the son’s “Pious Obligation” to repay his father’s debts persists whether the father is alive or deceased. While alive, the father has the prerogative to transfer joint family property, including the son’s interest, to settle debts not incurred for family necessity or benefit, provided these debts are not tainted with immorality. However, this right ceases once a partition suit is filed. Legal precedents such as “Muniswami V. Kuitty” and “Thadi Murali Mohan Reddi V. Medapati Gangaraju” promulgate that the “Doctrine of Pious Obligation” applies both during the father’s lifetime and after his death. 

WHEN DEBT BECOMES AVYAVAHARIKA

The concept of the Doctrine of pious obligation establishes the reach of liability for debts that are incurred by one’s father, grandfather, or great–grandfather. It distinguishes between two types of debts that are mentioned under Hindu law: Vyavaharika and Avyavaharika, under the concept of Vyavaharika debts, it considered to be just and legitimate, these are the debts that are mostly incurred for lawful purposes, such as defending oneself in a case or conducting business. Under this doctrine, sons bear the responsibility to repay their ancestor’s Vyavaharika debts. However, there are specific conditions:

1.    A son is liable only if the debt was contracted while the joint family property was intact.

2.    If the debt was incurred before partition but the repayment obligation arose after partition. 

3.    If the debt was contracted by the father after the partition, the son is not liable, as he has separated and taken his share of the property. 

On the other hand, Avyavahrika's debts are not binding upon the sons. These debts are incurred for purposes that cannot be justified by religious principles or personal dharma. Sons are not held responsible for such debts, as they are not considered spiritual or religious obligations. Regarding the extent of liability, descendants are responsible for repaying the principal amount of the debt, not the accrued interest. This means they are obliged to repay the original borrowed sum but not any interest that may have accumulated over time, 

Historically, before the ‘British era’, both sons and grandsons were personally liable for their ancestor’s debts. However, the liability of the great-grandson was limited to his shares in the joint family estate. With the advent of British law, this liability was further restricted. Sons, grandsons, and great-grandsons were held liable only up to their respective shares in the joint family property. Even if a son possessed personal property, he was not obliged to use it to repay his father’s debts as the liability was confined to the joint family estate. 

Under Hindu law, a son’s liability for his father’s debts stems not from conventional principles of agency or paternal authority, but from a deep-rooted moral and religious duty. It's noteworthy that if a Hindu son, emphasising his Pious Obligation, chooses to discharge all his father’s debts, irrespective of their nature, some Hindus may regard such an act as the epitome of filial piety, as it is believed to absolve the father from the repercussions of his debts. However, Hindu law does acknowledge certain exceptions to this principle, one of which is Avyavahrika debts. 

When an alienee (someone to whom property is transferred) seeks to justify an alienation (transfer of property) as being for the repayment of a pre-existing debt, they must demonstrate to the court of law that there a bona fide intentions, having acted in good faith and after conducting reasonable inquiries and having paid a fair price. If the sons challenge the alienation and impugn its validity, they bear the burden of proving that the debt was incurred for an immoral purpose and that the alienee was aware of this fact. Even if they establish the immorality aspect but fail to prove the alienee’s notice thereof, the alienation remains binding on them. Merely showing that the father led an extravagant lifestyle does not discharge the burden of proof of proving the immorality of the debt; rather, they must establish a direct connection between the debt and immoral conduct. 

The Supreme Court, in various cases such as “Amrit Lal Nagj V. Doshi Jayantilal Jethalal”, has laid down principles where sons challenging their father’s alienations must not only prove the immorality of the antecedent debts but also demonstrate that the purchasers were aware of their tainted nature.  Under current legal interpretations, the obligation of sons is not an absolute personal liability but is contingent upon the receipt of assets. The liability is confined to the assets received by a son in his share of the joint family property or his interest therein. Whether the sons are minors or majors, or whether the father is alive or deceased, if the debts incurred by the father are not immoral or irreligious, the son's interest in the coparcenary property can be held liable for such debts. In the case of “Venkatesh Dhonddev Deshpande V. Sou. Kusum Dattatraya Kulkarni”, the Supreme Court affirmed that when the father acts as the manager of a joint Hindu family and incurs debts for family purposes, the sons, as members of the joint family, are obligated to pay these debts to the extent of their interest in the coparcenary property. Similarly, when the sons are joint with their father and the debts are incurred for the father’s benefit, the sons are liable to repay the debts, provided they are not incurred for illegal or immoral purposes. 

LAW RELATED TO AVYAVAHARIKA DEBT

Section 6(4) Explanation:- 

In the case of “Suraj Bunsi Koer V. Proshad Singh”, the deceased “Adit Sahai” has incurred a debt of Rs 13,000 from Bolaki Choudhury, pledging his entire property and shares in a “mouzah” as collateral. Upon his failure to repay the debt and subsequent demise, the responsibility fell upon his minor sons, represented by their mother. Bolaki, in the interim, auctioned off the pledged property to a third party. Suraj Bansi Koer, acting on behalf of her minor sons, contested the alienation of the property, asserting their coparcenary rights to their late father’s estate. 

The subordinate court ruled in favour of the plaintiffs, determining that the debt of Rs 13,000 lacked justifiable necessity. Moreover, Bolaki’s failure to inquire into the circumstances surrounding Adit Sahai’s debt, despite being acquainted with him, was noted, and the court concluded that the debt incurred was Avyavaharika, relieving the sons of any obligation to repay it. However, recognising the third party’s innocence in the transaction, the court decreed that only Adit Shai’s share in the joint family property should be transferred to them, rather than the entire property. 

It's important to highlight that following the enactment of the Hindu Succession Act in 2005 and the subsequent amendment to Section 6 (4), no court shall uphold any individual’s right to recover debts contracted by their father, grandfather or great-grandfather based on Pious obligation. However, if such debts were contracted before the 2005 amendment, then the liability to repay falls upon the sons and descendants per Section 6 (4) (Clause B) of the Hindu Succession Act 2005.

Before the 2005 amendment to the Hindu Succession Act 2005, there was a traditional concept called “pious obligation” that held sons, grandsons, and great-grandsons responsible for repaying debts owed by their fathers, grandfathers, or great-grandfathers. However, after the 2005 amendment, this “pious obligation” was abolished. This means that no court can legally force a son, grandson, or great-grandson to pay off their ancestor’s debts solely because of this traditional obligation. But there’s a catch: if the debt was incurred before the 2005 amendment, then creditors still have the right to pursue the son, grandsons, or great-grandsons for repayment. Additionally, any property sold to settle these debts before or after the amendment remains valid and enforceable. So, in simple terms, the law changed in 2005: sons, grandsons, and great-grandsons are no longer automatically responsible for their ancestor’s debts on tradition alone. But if the debt existed before 2005, creditors can still pursue repayment, and any property sold to settle these debts is still considered valid. 

JUDICIAL PRECEDENTS

1.    Ram Saran V. Bhagwan: In this case, it was established that sons or descendants are not liable for any debts incurred by the father after the partition of joint family property, this indicated that the family property is hereby divided, and the father accrues debts afterwards, the sons or descendants are not obligated to repay those post-partition debts. However, the responsibility for pre-partition debts persists even after the division, under certain conditions. 

2.    V.D Deshpande V. S.K.D Kulkarni: In this case, the facts are that the father obtained a loan from the Government to enhance the joint family lands, following the partition, and no provision was made for repaying this loan. The court here ruled that the sons who inherited the joint family property post-partition, remained liable for repaying the loan, despite the father being the family manager and the loan being for the family benefit, only the sons were held accountable under the “Doctrine of Pious Obligation”. This illustrates that descendants may still be responsible for certain debts, even if the loan was taken for the family's welfare and the father was the manager. 

3.    Apentala Raghavaiah V. Boggawarapu Peda Ammayya: In this case, the facts were, that the plaintiff's father incurred debts due to tobacco business with the defendant, ultimately selling property to settle the debts. The defendant argued that the tobacco business was conducted for the joint family's benefit, and therefore, the debt was not solely the plaintiff’s responsibility to discharge. 

4.    Luhar Marit Lal Nagj V. Doshi Jayantilal Jethalal: In this case, it emphasizes that sons were challenging their father's transactions and that it must not only prove that the “Antecedent Debts” were immortal but also demonstrate that the buyers were aware of their tainted nature. The court also clarified that the obligation of sons is limited to the assets received from the joint family property, regardless of their age or their father's status. 

5.    Ramasamayyan V. Virasami Ayyar: In this case, it specifically highlights that even if the mortgage is not for legal necessity or payment of “Antecedent Debt”, creditors can still sell the property to recover debts for which the father is personally liable. The son is bound by the sale unless they can prove that the debt didn’t exist or was tainted with immorality or illegality. 

The doctrine of Pious Obligation, derived from “Mitakshara Law” imposes an obligation on the son, grandson, and great-grandson to satisfy the debts of their ancestor, as long as these debts are not immoral. According to the Naradasmriti Dharma Shastras, this obligation is independent of whether the son inherited any property from the father. Interestingly, the Doctrine of Pious Obligation is not solely a religious concept applicable only to Hindus. This issue was examined by the Supreme Court in the case of “Anthonyswamy V. M.R. Chinnaswamy Koundan (1969)”, where a three-judge bench considered whether the doctrine, according to the Mitakshara School of Hindu Law, applies to “Vanniya Tamil Christians”.

CONCLUSION

The legal landscape surrounding the obligations of sons to repay their father’s debts under Hindu law has evolved significantly, particularly with the 2005 amendment to the Hindu Succession Act. Historically, the Doctrine of Pious Obligation imposed a moral and religious duty on sons, grandsons, and great-grandsons to settle the lawful debts of their ancestors, a principle deeply embedded in Hindu jurisprudence and religious texts. This obligation was, however, limited to Vyavaharika (lawful) debts, excluding Avyavaharika (Immoral or Illegal) debts. Legal precedents such as, “Venkatesh Dhonddev Deshpande V. Sou. Kusum Dattatraya Kulkarni”, have reinforced the notion that while sons can be held liable for the father’s debts contracted as the “Karta” of a joint family, this liability is circumscribed by the nature of the debt. The courts have consistently delineated the boundaries of this responsibility and protected the interests of creditors while ensuring that sons are not unduly burdened by debts incurred for immoral purposes. 

The 2005 amendment to the Hindu Succession Act marked a significant shift, abolishing the automatic pious obligation of sons to repay their ancestor’s debts, thus aligning the law with contemporary values of individual financial responsibility and gender equality. However, debts contracted before this amendment remain subject to the earlier provisions, maintaining the liability of descendants under the traditional doctrine.

Legal precedent interpretations have further refined these principles, balancing the rights of creditors with the protections afforded to descendants. Cases like “Ram Saran V. Bhagwan and V.D Deshpande V. S.K.D Kulkarni” illustrate the nuanced application of these laws, where the nature of the debt and the timing of its contraction relative to partition are crucial factors. 

The application of the Doctrine of Pious Obligation beyond the Hindu community, as seen in “Anthonyswamy V. M.R. Chinaswamy Kaundan”, underscored its broader relevance, though predominantly rooted in Hindu law. This indicates a recognition of similar principles across different legal and cultural contexts within India. 

In conclusion, the interplay between traditional obligations and modern legal forms reflects an ongoing evolution in family and property law in India. While respecting historical and religious foundations, contemporary law increasingly emphasises individual rights and responsibilities, ensuring that the legal framework remains relevant and just in a changing societal landscape.