The liability to pay the father’s debts arises from the religious obligation under the Mitakshara Law to rescue him for the penalties arising from the non-payment of his debts and it does not arise from the legal conception., In other words the basis of the doctrine of pious obligation of the sons is that in Hindu Law, a debt is a major sin and so it must by the son the attainment of salvation because a putra is to save father put (hell).
Where the sons are joint with their father and debts have been incurred by the father for his own personal benefit, the sons are under pious obligation to pay the debts, provided the debts were not contracted for an illegal or immoral purpose.
A Hindu son governed by the Mitakshara law is liable to pay to debts of his father even if they are not incurred for purposes of legal necessity or for the benefit of the estate, provided the debts are not avayavaharika or illegal. The burden of proving that there was a debt and that the debt was avayavaharika or illegal lies upon the son. (Sita Ram v. Radha Bai, A.I.R. 1968 S.C. 534: (1967) 2 S.C.W.R. 838 (1968) 2 S.C.J. 231: (1968) S.C.D. 830).
Immoral (avyavaharika) debt:
The rule of obligation of the son to pay all debts contracted by their father is subject to the exception that the debt incurred for surety ship for spirituous liquor, for the gratification of lust, or in gambling, for idle gifts, for promises made under the influence of lust or wrath, for a fine or toll need not and should not be paid by the sons. (Brihaspati). The exemption applied only in the case of a surety for appearance. The son of a man who stood surety for the payment of a debt was liable to pay it.
Meaning of ‘avyavaharika’:
The term Avyavaharika has not had a uniform definition at the hands of those who had to deal with it, and has been commonly rendered in the judicial decisions as “illegal or immoral”. Aparapa describes it as meaning “not righteous or proper”, and Colebrooke defines it as “for a cause repugnant to good moral.”
The Allahabad High Court in Sumer v. Chaube, 8 A.LJ. 306 has held that there is no jurisdiction to except the son from liability except when the debt comes strictly within the text of Yajna- valkya as interpreted in the Mitakshara. It doubted the correctness of the decision in durbar Khachur’s case and held that the son is liable to pay a debt incurred by the father for contesting an action for libel against him.
The same Court in Niddalal v. Collector, 8 A.L.J. 610 observed that the only limitation to the liability of the sons is contained in the text that son is not liable to pay debts for liquor, gambling, lust, unpaid fines and idle gifts and that only criminal misappropriation would exonerate the son.
The Madras High Court in the case of Nugopal v. Rarmindhum, 14,1.C. 705 approved of the Calcutta decision and held that the son is liable to pay money which the father is made to repay on account of his misappropriation of a civil nature.
The Judge held that Colebrook’s interpretation of the word ‘avyavaharika’ as meaning ‘incurred for a cause repugnant to good morals’ was probably correct and expressed the opinion that it meant ‘a debt which is not supportable as valid by legal argument and on which not right could be established in the creditor’s favour in a court of justice’.
However, the Madras High Court has held in Aligireswami v. Sundareswara, 20 Mad. SJ. 89 that the sons are not liable to pay the debt of the father incurred for paying the Government costs in a pauper suit brought by him knowing it to be false. The Madras High Court has held in Mamemer v.
Krishna, 31 Mad. 472, that when the misappropriation by the father is a mere breach of civil duty and it is not shown that the father made himself amenable to the criminal law, the son is liable to discharge the obligation of the father.
The Allahabad High Court has held in the case of Raghunandan v. Chain Ram, 27 I.A. 95 that the son is bound to pay money due under an indemnity clause in a sale deed executed by the father which was not tainted with immorality.
Summarising the above provisions it can be said that the following debts are avyavaharika (immoral or illegal) and need not be paid by the sons:
(1) Debts due for spirituous liquor.
(2) Debts contracted under the influence of lust of wrath.
(3) Debts of gambling.
(4) Unpaid fines i.e., (denda).
(5) Unpaid tolls.
(6) Debts due for promises made without consideration.
(7) Debts for being surety for the appearance or for the honesty of another. [Mahabir v. Sir Narain, A.I.R. 1918 Pat, 345].
(8) Time-barred debts i.e. Debts barred by lititation (Subrama- niya v. Gopal Aiyar, 33 Mad. 308).
(9) Any other debt for a case repugnant to good morals.
A decree against a father for money which he has criminally misappropriated is not binding on the sons. (Toshanpal Singh v. District Judge of Agra, 61 LA. 350). But where the misappropriation is not a crime but a mere civil wrong the sons are liable. (Natasayana v. Panmisami, 16 Mad. 39). Sons are not liable to pay the amount due on a decree for a malicious prosecution obtained against the father, (Raghunandan v. Badri Teli, A.I.R. 1938 All. 330).
A debt which is, in its inception a just had true debt does not become avyavahirika merely by the subsequent dishonest conduct of the father.
The following debts are amongst debts are airiongst others, avyavaharika or illegal and immoral:
(1) Debt for purpose of speeding in the marriage of the father’s concubin’s daugher. (Lakshmanswami v. Rahgva- charulu, A.I.R. 1945 Mad. 292).
(2) Debt incurred by the father for the commission of an offence, a boy theft.
(3) A decree for damages for malicious prosecution passed against the father. (Sunder v. Raghuandan, A.I.R. 1924 Pat. 465).
(4) Money borrowed by the father for payment to a Hindu woman as a bride to induce her to take his son in adoption, (Sitaram v. Harihar, 35 Bom. 168: 8 I.C. 625).