History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.662

v4.c63.662

The case law on the subject of the father's debts and the son's liability to pay them has assumed enormous proportions. This is not the place to discuss the case-law. But as the courts in India profess to follow the Hindu Law of the sages and medieval digests, it is necessary to examine some of the principles laid down by the latest decision of the Privy Council. In *Brij Narain v. Mangla Prasad* 51 I. A. 129 (=46 All. 95) the following five propositions are laid down by the Privy Council (at p. 139): (1) the managing member of a joint undivided estate cannot alienate or burden the estate *qua* manager except for purposes of necessity; (2) if he is the father and the other members are the sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt; (3) if he purports to burden the estate by mortgage then, unless that mortgage is to discharge an antecedent debt, it would not bind the estate; (4) antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached; (5) there is no rule that this result is affected by the question whether the father, who contracted the debt or burdened the estate, is alive or dead. It is necessary to see how far these principles agree with or deviate from the law of the *smṛtis* and the digests. The first proposition is in consonance with the law of the *smṛtis* and of the commentaries like the Mit. Yāj. II. 45 provides⁷⁵⁶ that whatever debt is contracted by the head of the joint family for the necessities of the family has to be paid by the members who take the ancestral estate when the head is dead or goes to a foreign country. The Mit. on Yāj. II. 114 quotes and explains a *smṛti* text "Even one (the head or manager of a joint family) can make a mortgage, sale or gift of immovable property in a time of distress, for the necessities of the family and particularly for religious and charitable purposes". What is meant by 'debts in times of distress' and 'kuṭumbārthe' is explained by Kāt. (542-43) quoted in n. 756. This has been the foundation of numerous cases, the first and the most important of which is that of *Hunoomanpersaud v. Mussumat Babooee*⁷⁵⁷ 6 Moore's Indian Appeals p. 393 (P. C.). The 2nd proposition laid down above also follows from several smṛtis (such as Yāj. II. 50, Viṣṇu Dh. S. VI. 35, Nār. IV. 2, 4, 6) and the rules about immoral debts cited above. But it is difficult to understand why the Privy Council make a distinction between a simple personal money debt of the father and a debt secured by a mortgage (as in propositions 2 and 3). The ancient texts and commentaries make no such distinction. Vide 42 Mad. 711 at p. 731, 26 Bom. 206 at pp. 217-219 (F. B.) and 60 Bom. 311 (F. B.) where this is pointed out. With the greatest respect it must be said that the distinction is not only without dharmaśāstra authority, but is also anomalous. The distinction between 'antecedent debt' and a debt contracted at the time of executing a mortgage is unknown to the smṛtis or digests. The Privy Council had used for the first time in a very early case (viz. *Suraj Bunsi v. Sheo Proshad* 6 I. A. 88 at p. 106 = 5 Cal. 148, 171) the words 'antecedent debt'⁷⁵⁸ for which there is nothing corresponding in the Sanskrit authorities and round which elaborate arguments came to be centred in numerous later cases. According to the Privy Council (proposition 5) the son's pious duty to pay his father's debt is as absolute during the father's lifetime as after his death. It has been shown above that the duty was not absolute but qualified and limited during the father's life according to the smṛtis.