Understanding the Concept of Payment of Debts under Hindu Law
According to a text of Katyayana, “He who having received a sum lent or the like does not repay it to the owner, will be born hereafter in the creditor’s house a slave, a servant, a woman or a quadruple.”
There are other texts also which equally emphasise upon the payment of debts. Thus a pious obligations has been imposed upon the sons, grandsons and great grandsons to pay off the debts of their deceased ancestors in order to liberate them from the torments of hell consequent on non-payment. Thus, Narada says, “Therefore the son, born, should without keeping his self interest in mind, liberate his father from debt earnestly so that he (father) may not go to hell.”
According to Myne the liability of a Hindu to pay debts contracted by his ancestors come out from three considerations:—
According to religious consideration the sons and grandsons are bound to pay the debts of their father and grandfather in order to relieve the debtor of the sufferings of the hell.
There is moral obligation on the male descendants of three generations because the assets of the debtors on his death have devolved upon them.
The obligation is legal as well because the debt contracted by ancestor was in capacity of an agent of the joint family.
The liability of sons to pay the debts, contracted by their father, can be examined in the context of the following category of property:
(1) Liability on separate property of a Hindu:
The separate property of a Hindu is entirely liable for his personal debts whether incurred for immoral or unlawful purposes or for lawful objects.
(2) Liability on undivided coparcenary interest:
The undivided interest of a coparcener in the coparcenary property is liable for the payment of debt and it may be attached in his lifetime in execution of a decree against him and if so attached, it may be sold even after his death. But it cannot be attached after his death (except where the coparcener is the father), for then it ceases to be his interest and passes to other coparceners by survivorship. It is only an attachment effected during the lifetime of the debtors that will prevent the accrual of his interest to his coparceners by survivorship.
(3) Liability on Coparcenary Property:
Where coparcenary consists of father and his male descendant’s upto three generations and the debt was contracted by the father, who dies without having paid the debt, the entire coparcenary property is liable for his debts subject to the condition that the debts were not consisted for an immoral or unlawful purpose. The fact that the father was not the Karta or manager of joint family or that the family consisted of other coparcenars besides the father and sons does not affect the liability of the sons in any way. It exists irrespective of these facts.
The liability of the son, grandson and great grandson to pay the debts of their ancestor is not a personal one that is to say; the father’s creditor is not entitled to proceed against their person or separate property. It is limited to their interest in the joint family property.