The son is obligated to repay the debts of his father by the property he got by birth and not which he earned or acquired himself. The debts must be prior in time and prior in fact. The burden of proof of the debt whether or not it is an Avyavaharika debt lies on the son.

The Supreme Court of India, in the case of Venkatesh Dhonddev Deshpande vs. Kusum Dattatraya Kulkarni and Ors. 1978[1]. The burden of proof would be on the children to prove that the debt was immoral, illegal and dishonest in nature and should not be held liable to repay the debt of the father. The legal representatives need not demonstrate criminal liability of the father to claim the exception.

It is pertinent to note that the pious obligation of the son to repay the debts of the father exists whether the father is dead or alive. It is not necessary that the father should be the manager or the karta of the joint family or that the family must be composed of the father and his sons and no other member. It is also necessary that the sons should be made parties to the money suit or to the execution proceedings. The son is also not liable for a debt contracted by the father after partition but us liable after the partition for a debt which was contracted by the father before the partition.

In case of a partition, it is necessary that the creditor should file a suit against the father and the son so that the decree can be executed against the son. In the case where the father and son are joint, such a decree may be executed against the father alone, and the entire joint property along with the son’s shares which may be attached and sold for the satisfaction of the decree.

Post Amendment

The Hindu Succession (Amendment) Act, 2005 (herein referred to as “the Act”) was introduced to remove discrimination and give equal rights to daughters by amending Section 6 of the Hindu Succession Act, 1956. The Act focused on ending gender discrimination in Mitakshara coparcenary by including the daughters in the system. The amendment gave daughters a right to be a coparcener by birth and the same rights and liabilities as a son.

Applicability of Doctrine of Pious Obligation

The Act abolished the Doctrine of pious obligation as per Section 6 (4) of the Act. Section 6(4) states that no court shall recognize any right to proceed against a son, grandson, or great grandson to discharge any debt.

“6(4)- After the commencement of the Hindu Succession (Amendment) Act, 2005 , no court shall recognize any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 , nothing contained in this sub- section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.- For the purposes of clause (a), the expression” son”,” grandson” or” great- grandson” shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.”

In case of a debt contracted before the commencement of this Amendment Act of 2005 the right of any creditor, to proceed against son, grandson or great grandson, shall not affect or any alienation relating to such debt or shall be enforced under the rule of pious obligation in the manner and extent it would have been enforceable as if the Act of 2005 had not been enacted. Hence, the liability to repay the debt of the deceased father before the enactment remained working and the rights of the creditors will be preserved if the debt was taken before the commencement of this amendment.

Retrospective and Prospective Effect

The discussion in terms of retrospective and prospective operation, the operation of the Act, especially Section 6, varies from case to case depending on the facts. The High Court of Bombay in Badrinarayan, Shankar Bhandari and Ors v. Omprakash Shankar Bhandari, 2014 held that[2]

“Section 3 of Act stood substituted with effect from specified date. It could not be said that Section 6 of Act related back to specified date when the Principal Act came into force. The commencing words on and from the commencement of the Hindu Succession Amendment Act, 2005 proved the Act was prospective in operation and certain clauses in the Act proved that operation of the Act was not retrospective but prospective. Hence, the Appellants failed to prove operation of the Act was retrospective in nature. Therefore, Section 6 of Act was prospective in nature.”

Applicability– It is difficult to state that Section 6 of the Act related to a specified date when Principle Act came into force and the commencing words on and from the commencement of the Act proved that the Act was prospective in operation. Such clauses in the Act proved that the operation of the Act was prospective and not retrospective.

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