is son should bare the loans made by father
sivadeep
(Querist) 05 November 2009
This query is : Resolved
hi,
i need a answer for the query..if the father made a credits and loans for his personal activites.. and in case if he doesn't cleared them.. then his son will become the responsible for that and will his son forced to clear the loans..
awaiting for reply ..
Shivasurya
(Expert) 05 November 2009
Mr. Sivadeep,
The son is responsible for his father's loan only if he enjoys is father's property of if the loan was borrowed by the father for the benefit or livelihood of the son. The said two conditions are not met out, the son is not liable for the fathers liability
A V Vishal
(Expert) 05 November 2009
Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out of his ancestral property even if he had not been benefited by the debts, provided the debts are not avyavaharika. The sons get exonerated from their obligation to discharge the debt of their father from the family assets only if the debt was one tainted with immorality or illegality.
The duty that is cast upon the son being religious and moral, the liability of the son for the debt must be examined with reference to its character when the debt was first incurred. If at the origin there was nothing illegal or repugnant to good morals, the subsequent dishonesty of the father is in not discharging his obligation will not absolve the son from liability for the debt.
In this section we will look as to what is meant by Avyavaharik debts. Colebrooke defined it as a liability incurred for a cause repugnant to good morals. If it is unrighteous or wholly improper they cannot be called vyavaharika or legal debts. It may be that the debts incurred by the father for defending himself against criminal action against others or defending himself in an action brought by others are legal in several circumstances. If a debt was incurred to defend the rights of the family and to safeguard its interests, it is certainly legal in nature. If a debt is not tainted with illegality at its inception it may be binding on the son. The son may not be able to claim immunity from the debts in such cases. But, where the father's conduct which prompted the incurring of the debt, is utterly repugnant to good morals or is grossly unjust or flagrantly dishonest, then certainly the son can claim immunity from its liability. The learned author Mulla of Hindu Law (at pp, 350 and 351 in l3th edition) places any debt which is avyavaharika which is rendered by Colebrooke as equivalent to a debt for a cause "repugnant to good morals'' in the list of Avyavaharika debts. It is further stated that the fundamental rule is that the sons are not liable for the debts
incurred by father which are Avyavaharika. Colebrooke translates it as "debts for a cause repugnant to good morals." Aparaka explains it as not righteous or proper.
In a decision of a Full Bench in Bombay High Court it was held that Avyavaharika debt means illegal, dishonest or immoral one. It is not essential for the son to prove criminal liability of the father in order to claim exemption. So, where a person in possession of property, to which he is not entitled, disposes of that property and deprives the rightful owner of that property, his conduct is dishonest and the son is not liable for the debts arising out of such conduct Lord Dunedin of the Privy Council defined the antecedent debts as antecedent in fact as well as in time i.e. not a part of transaction impeached. Thus two condition are necessary:
1. The debts must be prior in time and
2. The debts must be prior in fact.
A son could claim immunity only where the debt in its origin was immoral by reason of the money having been obtained by the commission of an offence; but not where the father came by the money lawfully but subsequently misappropriated it. It is only in the former case that the debt answers the description of an Avyavaharika debt. If originally the taking was not immoral, i.e., if it did not have a corrupt beginning or founded upon fraud, it could not be characterised as an Avyavaharika debt and the son could not be exempted from satisfying that debt. The supervening event, namely, the misappropriation later on would not change the nature of the debt. The vices should be inherent in the debt itself.
Immoral debts are those which are taken in furtherance of an immoral purpose such as for prostitution or for keeping of concubine. Thus the expenses of the marriage of concubine's granddaughter or to bribe to hindu women so that she may take one of his son in adoption or purpose of gambling will be for illegal purpose .the debts resulting from the highly tortuous act which at their inception are tainted with an evil purpose are avyavaharika. Father's power of alienation for antecedent debts
The father himself can alienate the joint family property property for the discharge of his personal debt and son can challenge it only if the debts are tainted. This means that the father can do it indirectly also. The pious obligation of the son to pay off the father debt exits whether the father is alive or dead. It is open to father during his life time , to convey joint family property including the interest of the son to pay off antecedent debts not incurred for family necessity or benefit provided the debts are not tainted with immorality. The father can not do so after filing of the suit for partition.
N.K.Assumi
(Expert) 05 November 2009
Excellent Vishal.Yes, Hindu Law is very clear on that score. But Sivadeep, could you kindly elaborate what was the kind of loan and by whom and what was the agreement between the creditors and the barrowers?
adv. rajeev ( rajoo )
(Expert) 05 November 2009
yes son is liable for the debt of his father in Hindus. But such loan should be for the benefit of the family not for his personl benefit.
Raj Kumar Makkad
(Expert) 05 November 2009
No double standards are allowed for son in such matters, If son has availed the property of his father in his inheritance then he cannot take this defense in his favour that his father had taken the loan for his personal necessities otherwise he is justified. Generally such liability is to be borne by legal heirs of the deceased who so ever they may be.
KUMAR JAGADEESAN
(Expert) 06 November 2009
The underlying theme for all the explanations is that the son is liable if he has come into possession of some ancestral or property left behind by father. If in a case no such property has accrued I feel the son can not be compelled to honour the debts whether the debts are leagl/illegal. Am I correct.
J.KUMAR
Hyderabad
Arvind Singh Chauhan
(Expert) 07 November 2009
Yes Mr. Vishal is right he is liable only up to the extent of ancestral property.
