Son’s Liability to Pay Father’s

Debt- PIOUS OBLIGATION

Under Hindu Law, Payment of one’s
debt is considered necessary for
salvation of soul.
1. Where son’s (includes 3 generation from last
holder) are joint with father & debts
contracted by father in capacity of Karta for
family/ personal purpose, the son’s are liable
to pay it to the extent of their interest in JFP,
provided must not be Avyavaharika
(immoral & illegal debt).
2. The pious obligation was included U/S 6 of
HSA,1956 BUT 2005 Amendment has
abrogated it. Acc. to Sec 6 (4), ‘creditors shall
have right to proceed against son’s born and
adopted prior to amendment 2005’
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3. No personal Liability of son’s-
The creditor is not entitled to proceed against
the personal/separate property of son’s.
4. Liability for immoral debts-
No liability of son’s to pay off it.
The creditor can attach & sale father interest in
JFP in father’s lifetime /from his separate
property. However if not attached during
lifetime, it cannot be attached after his death
because share passes by survivorship.

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5. Extend of liability-
The pious obligation of son’s to pay father’s debt
lasts only so long as liability of father subsist. E.g no
liability if debt is time-barred.
Held in Jayanti lal v. Hrikat AIR 1980 Guj. 67 (F.B.)
that ‘if father is adjudged as insolvent the pious
obligation of his son for pre-partition debts of
fathers comes to an end.’
6. Liability exists even in father’s lifetime-
In Brij Narain Rai v. Mangal Prasad (1924) PC 50 it
was held ‘son’s liable for father’s debt, whether
father is alive or dead when liability attached.’

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7. No liability of Son’s for Post Partition Debt’s.
8. Liability of son after partition for father’s pre-partition
debt’s-
The creditor can enforce this liability-
a. If suit filed against father before partition, the son is liable
for pre –partition debts in same suit.

b. But pre partition debt’s of father cannot liable son’s share

after partition. U/s 60 of C.P.C. the position correctly
stated by in Jai Narayan v. Sonaji (1938) Nag. 136. ‘Acc. To
sec. 60 the property in question should either belong to
judgement debtor or he should have disposing power
over it’. Thus, after partition father has no power of
disposing off the property therefore son could not be
made liable under Pious Obligation.
 Hence, a separate & independent suit must be instituted
against son’s before can be held liable for his share.

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c.) If suit file after partition but father dies during
pending of suit & his separated son brought on
record as legal representative then as held in
Pannalal v. Naraini (1952) SCR 544 overruling full
bench decision of Patna H.C Atul krishna v. Lala
nandanji (1935) 14 Pat 732 held ‘the remedy of
decree holder in such case against share obtained
by son on partition lies in ‘Execution Proceedings’
& not by way of separate suit’
 The son in such proceedings be at liberty to show
that property in hand is for certain reason not
liable pay father’s debt & such other questions
will be decided by executing court u/s 47 C.P.C.
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• Where a decree has been passed against the
father in respect of a debt incurred by him &
father dies before the decree has been fully
satisfied, the decree may be executed u/s 53
of C.P.C by attachment & sale of coparcenary
property in hands of son’s .

9. No obligation of son if a promissory note

passed by father for debt contracted by him
during son’s minority until note is renewed by
father after son attaining majority.
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Luhar Amrit lal Nagji v. Doshi Jayantilal Jethalal
& Ors. AIR 1960 SC 964
(Case Analysis)
• A joint family comprises of father, wife and
two son. The father executed a mortgage of
JFP to raise a loan.
• He was unable to repay the loan & the
mortgagee sued on the bond & brought the
property to sale.

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• The son’s & wife of mortgagor contended that the sale
was binding only on one- fourth share of mortgagor, not
on collective ¾ share, as the debt was contracted for
immoral purpose.
• They also asked for permanent injunction restraining the
alienee from executing the decree against their shares.
Held:
1. Son’s not only should prove that debt was contracted
for immoral purpose
2. But they must also prove that the alienee had notice of
the fact that it was indeed for such purposes.
In instance case sons could only prove that purpose was
immoral but failed to establish knowledge on part of
alienee, hence they could not exempt from the liability.
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 Father’s power of alienation for
ANTECEDENT DEBT
A.D means ‘antecedent in fact as well as in time’
i.e not part of transaction impeached.
Father can alienate for antecedent debt. But two
conditions must be satisfied:
1. Debt must be ‘prior in time’ i.e Debt must
precede alienation both should not have been
made simultaneously.
Eg If debt is taken on 1.6.2013 & properties were
alienated on 1.12.2013, debt is prior & hence is
antecedent.
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2. Debt must be ‘prior to fact’ i.e. debt & alienation
should be two independent /separate transaction
& if they are part of same transaction, then even
though debt was taken prior, it will not be
antecedent.

e.g. A, the father asks loan of Rs. One lakh from B,

an alienee on agreement /understanding that on
1.1.2013 ,B will advance loan to A & on 1.3.2013 , A
will alienate the house to B.
• Such debt is prior in time but not prior to fact
thus both are part & parcel of same transaction
hence not antecedent debt.
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Conclusion:
The father can alienate properties including son’s interest
therein to discharge debt contracted by him for his own
personal benefit & such alienation will be binding on
son provided:
• Debt was antecedent to alienation
• Debt was not incurred for immoral purpose.

Burden of proof of immorality of debt is on son-Luhar

Amrit Lal, 1960 S.C case

The coparcener can neither prevent father from

alienation nor obtain injunction but can ask partition, as
after partition their share cannot be touched by father
to repay his debts.

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 PARTITION
It means division /splitting of HJF into
smaller separate & independent units,
with conferment of separate status on
undivided coparceners
• Subject of partition- Coparcenary property only. Its of two
types:
1. Property capable of division.
2. Indivisible JFP- E.G. Animals, Ornaments, Well, stairs,
garden, temple, tanks, furniture's, place of worship etc…
• The methods of adjustments of these indivisible properties are:
i. Some of properties may be sold & its value distributed or,
ii. Principle of Owelty (Equality): The properties may be valued
& Retained by one coparcener exclusively while others given
compensation in terms of it as money equivalent .
iii. Some of properties may be Commonly enjoyed by coparceners
jointly / or by turns.
• In case of disagreement court may direct eldest member to
retain it, with others to have liberty to access it- Dattatreya v.
Prabakar AIR 1937 Bom 202.
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 Deduction provision at time of Partition:
Before partition is effected provisions should be
made for certain liabilities of family as under:
1. Debts: Taken by Karta or if any coparcener
spended money on HJF can be reimbursed.
2. Marriage : Marriage expenses of:
• Daughters of father
• Sisters of coparceners
• Daughters of coparcener dies before partition
without son.(No application post 2005)
But no provision is made for:
• Daughters of living coparceners.
• Marriage of unmarried coparceners .
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3 Maintenance:
• Disqualified coparceners & his immediate
dependents. i.e wife, daughters.
• Unmarried daughters.
• Widowed daughter’s of deceased coparceners
• Mother, step mother, grand mother (even
though has power to adopt under HAMA
1956)
4. Performance of ceremonies like
Funeral expenses of above listed members,
thread ceremonies etc..
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 Person entitled to ask for partition & also entitled
for Share on partition
As general rule, every coparcener has right to
partition & entitled for share. But it has exception
as under:
• Unqualified coparcener has no right of partition,
• In Bombay school & Punjab customary law son
has no right to Partition without consent of
father, but can demand if father separated.
• Illegitimate son
• Daughter cant ask forvpartition but post 2005
Daughters can now ask for partition.
• Children of void / voidable marriage.

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1. Father: His right is superior to that of all others
for which consent of son’s is immaterial. With
respect to minor share, father retain its control
as his guardian.
Held in Kuppuswamy v. Perumal AIR 1964 Mad.
291, “where father effects an unequal distribution
& if all coparcener’s agree, partition will take
character of family arrangement & will be binding.”

Partition by Will: Held in Kalyani v. Narayanan AIR

1980 SC 1173, “with the consent of all coparcener
father can exercise power of partition (may be
unequal) by WILL & it shall be binding &operate as
family arrangement.”
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2. Son , grandson, great grand son.
3. Son conceived at time of partition but born
after Partition:
1. If pregnancy know then either partition should
be postponed or equal share of son should be
reserved. But if (pre 2005) daughter takes birth
her maintenance/marriage provision should be
made & if surplus then equally divided among
coparceners.
2. Even if pregnancy not known, son has right to
share, if no share given can re-open the
partition.

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4. Coparcener begotten & born after partition-
a) If father taken share for himself: He frames
coparcenary & entitled for share
b) If father had taken Meager/no share for himself, the
new born son can reopen the partition. E.G.
A

B C D(born after partition)

E ( E’son Born after partition)

If partition takes place between A,B,C. Then D & E can

reopen as entitle to succeed father share not E’s son.

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• Note: If father relinquish/renounced his interest
in JFP then as held by Reddy C.J. in Anjaneyulu v.
Ramayya 1965 A.P. 177 (F.B.) “In such case son
could be coparcener with his father, but he could
not be added to original coparcenary as
membership of his father in original J.F. is
absent.”
5. Adopted son : Under classical law:
If natural son born after adopted son, then adopted
son share use to reduce but in absence takes
complete share.
But under Sec 12 HAMA 1956 adopted son takes
equal share with natural born child.
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6. Absent coparcener: He stands on equal
footing as minor & in case if not received share
he can reopen the partition.

7. Alienee /Purchaser in execution of court’s

decree:
Generally non- coparcener cannot demand
partition but alienee is exception. He stands in
shoe of his vendor & can file suit for partition.

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8. Minor coparcener:
Unlike major coparcener , minors do not have right
to demand partition from their father/ Karta.

Also held in Anandi v. Naik AIR 1981 Ori 21 ‘If

father partition it does not mean that his minor
son’s interest also get severed.’

When partition by agreement entered into by adult

coparceners it will be binding on minors, unless it
is unfair/prejudicial to his interest- Bishnudeo v.
Seogant AIR 1951 SC 280.

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But minor will have same right as major
coparcener if:
• He is discriminates/ ill-treated by other
coparcener’s/ Karta then can file suit for partition
through next friend & by order of court will have
severance of status.
• In such cases court acts as Parens Partriae &
assumes very important role.
• In Gurusami Naiker v. G. Jayaraman AIR 1996
Mad 212 held ‘If court finds that partition was
not just, fair or was unequal, it would be open
for minor to challenge on attaining the
majority.’
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 Kakamanu Pedasubhayya v. Kakamanu Akkamma
AIR 1958 SC 1042
(Case Analysis)
• Maternal grandfather of minor aged 2 ½ yrs. Filed a
suit for partition on his behalf against father & 2
brothers.
• His main contention was that the father along with 2
major sons (born with first wife) were managing JFP in
such manner that was detrimental of minor son
interest. They were selling JFP & were buying
properties in their names.
• The minor along with mother & sister was thrown out
of house .
• But during pendency of suit minor died.

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Two issues before court:
1. What was status of minor on his death? Did he died as
undivided coparcener or separate member?
2. Will the suit abate on minor’s death or not?
HELD:
• ‘Partition takes effect from date of institution OF
SUIT & not from date of court order.’ thus he died as
separate member not as coparcener.
• If minor dies during pendency of suit his case shall be
represented by his legal representative & his share
shall succeed under HSA, 1956 (Later also held in
Lakireddi v. Lakshmma AIR 1963 SC 1609)

CASES CITED :Suraj Nrain v. Iqbal Narain (1913) 40

IA; Kewal narain v. Prabhu lal AIR 1917 PC 39
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• It was urged for second issue that ‘cause of
action for suit for partition was personal to
him hence on his death before hearing, the
suit must abate on principle of maxim actio
personalis moritur cum persona (action dies
with person)’.
• But court held ‘The maxim is applicable only
when action is one for damages for personal
wrong & suit for partition is suit for property,
the rule in question has no application here
in instant case.’
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Next friend has to prove that partition is for welfare of
minor, failing to do so will not effect partition.
Aryan Kamal Wadhwa v. Biharilal Wadhwa AIR 2009
Bom 80.(Case Analysis)
• The senior-most male member acquired property
through his efforts & then established HUF. He had
two married son. The property in income tax records
was shown as HUF.
• W, his daughter in law had matrimonial problem with
his son. with matrimonial litigation going on, she was
awarded maintenance by court u/s 24 HMA1955.
• As son , born of this relationship was also with
estranged mother. She on behalf of minor son sought
partition of HUF property as his next friend .
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• Husband contended that family is ready to
maintain child out of share of JFP & Adequately
protected by his father & other family members.
• The court citing Pedasubhayya case held the
partition of JFP through filing suit by next friend
can be validly effected. But court must be
convinced that it is in interest of minor. In instant
case the parents were young & possibility of
father getting remarried cannot be ruled out
• On other hand mother offered to deposit share of
minor in court & to invest it according to
directions of court showed bonafide on her part.
• Held Karta must give share to minor which in turn
should be deposited in court within 8 weeks .
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 Person who has no right of Partition but
entitled for share on Partition
On actual partition certain female members are
entitled for share. If deprived of share then can
re-open it. It includes three categories of
females:-
1. Father’s wife
2. Widow mother
3. Paternal grandmother
 They get property subject to following rules:-
1. This rule is applicable in all sub schools of
Mitakshara i.e Benaras, Mithila, Bombay school
except Dravida/ madras school.
2. Entitled to share only when not paid stridhan by
husband/father-in-law that was equal or more
than value of share given to her on partition.
Where she not paid stridhan get full share but
if partially paid the that amount is
proportionately deducted from her share.
3. Till division of property is actual by metes &
bounds do not get share.
4. If female dies before partition, her share does
not pass to legal representative as have no pre-
existing right in property.

5. Prior to HSA1956 females took her share as

‘limited owner’ under Women’s Right to Property
Act,1937 but section 14 of HSA1956 makes the
share her absolute property.

6. An entitlement of maintenance does not

operate as disqualification, but if she get shares,
her maintenance right is effected she need to prove
that she is incapable of maintaining herself.‘’
1) FATHERS WIFE:
She take equal share with son. E.g
F----W
S
On partition each will take 1/3 share.

But if F dies without partition S will take entire

property under survivorship & wife will not get
anything as for partition at least 2 coparcener
must be in existence.(but possible post 2005
amendment- notional partition)
2. Widowed Mother:
On death of father when partition takes place
among brothers, widowed mother entitled to
equal share to share of brother. ‘Mother’
includes step mother also.
(F )------W

S1 S2 S3
S1,S2,S3 &W shall take ¼ share each.
3. Paternal Grandmother :
• She takes equal share with grandson when
her son/s are dead. It includes step
grandmother also. E.g.
(F)-----W
(S)
S1 S2 S3

W, S1,S2,S3 all will take ¼ share.

 Modes of Effecting Partition –

Partition can be made by definite,

unambiguous declaration of
coparcener intention to separate
himself from JF
1. Partition by institution of suit: It’s an unequivocal
intimation of coparcener to separate & severance of
status takes place from date of institution of suit & not
from date of decree.
• If suit is withdrawn before trial (it mean before summons
are served on defendants i.e before communication of
intention ), there is no severance of status.
• As to decrees in suit of Partition refer Sec 54 & Order 24
Rule 18 of C.P.C.
• Partition could be between branches in such case only
necessary parties to suit are heads of branches.(refer Order
01 of C.PC.)
• If plaintiff /coparcener dies suit can be continued by legal
representative.
2. Partition by agreement: It is not necessarily be in
writing. But if not in writing then evidence of
subsequent conduct of parties becomes material to
determine validity of partition.
Mere agreement does not require Registration, but if
writing effects partition then must be registered
The true test of Partition is intention of coparcener
/division of title although there may not be actual division
of property by metes & bounds.
• Appovier v. Rama Subba Aiyam (1866) 11 MIA 75
The 3 properties were divided by metes & bounds among
6 members of HJF but regarding the income from a
village, it shall be equally divided into share, held valid as
it converted JF tenancy of JF into tenancy –in-common.
3. Oral partition: Held in V.N.Sarin v. Ajit AIR 1966 SC432
“the partition does NOT involve transfer of property
hence it can be made orally”
4. Partition by arbitration: If all coparcener entered into
agreement for appointment of Arbitration, the severance
of status takes place from date of agreement –
Jawaharlal v. Anand AIR 1981 Cal 424
• The mere fact that no AWARD has been made is not
evidence of renunciation of intention to separate.
5. Automatic severance of status: On Conversion or by
marriage with non- Hindu loses right of survivorship but
entitled to share as it stood on date of
conversion/marriage.
6. Partition by conduct: like by separation in food,
worship, separate income & expenditure. Conduct must
be unequivocal, explicit & definite.
TYPES/ CLASSIFICATION OF
PARTITION
1. Partial Partition: There is presumption that
every partial is total partition, party which
asserts that it is partial has to prove it-
Diwakar v. Prabhakar AIR 1985 All 133.
It may be:
a) Partial partition as to property
b) Partial partition as to coparcenary- its similar
as unilateral partition.
2. Successive Partition: It’s when coparcener’s
one after another partition from HJF .
3. Partition by metes & bounds-It means actual
division of JFP
 Rules relating to division of property by metes
& bound:-
1. When Partition takes place between father &
son; each one i.e father, sons, mother
(including step mother, if not received
stridhan) take per capita /head share
2. When partition between brothers each get
equal share along with mother i.e per capita.
3. If partition takes place between branches,
HEAD of each branch takes one share i.e per
capita & then that share is further divided as
mentioned in Rule 01.
 Communication of intention to partition
1. The partition takes place from date on which communication
is put to transmission (i.e letter posted) & not from date
when it reaches to coparceners- Raghavamma v.
Chenchamma AIR 1964 SC 136
2. If coparcener dies before communication reaches to other
coparcener’s, it does not amount to partition.
3. Once declaration made it cannot go back to old position by
mere revocation of intention.
4. Intention must clear & unequivocal expression by words
(oral/written) or by conduct. (separate food, dwelling,
income, expenditure, separate business transaction etc..)
5. If third party informs & coparceners says third person was not
authorized, then no partition but if before clarification
coparcener dies then partition is effected (as only deceased
coparcener would have sad that he was not authorized)-
Puttrangamma v. Rangamma AIR 1958 SC 1018
 Communication of Intention through WILL
A. Raghavamma v. A. Chechamma AIR
1964 SC 136 (Case Analysis)
• HJF comprised of 4 brothers, 2 died without
male issue. The rest two maintained undivided
status. One brother B1 had son S & daughter
D. S got married with SW & had son SS; While
daughter D had daughter DD.
• B2 had wife BW but was childless.
(Chimpararyya- Karta)
B1-------(B2)------BW (Raghavamma)

D (S)--------SW (Chechamma)

DD (minors) SS (Subbarao)
• After death of B2 & S family comprised of Karta B1 &
grandson SS.
• B1 executed a Will of his undivided properties diving it into
2 equal parts in 1945. One part in favour of grandson SS &
other for granddaughter DD. He died four mother later
• Since both were minors, he provided management of
properties would be in hand of BW i.e widow of deceased
brother i.e. Raghavamma, who will be absolute owner if
both children die in minority.
• But SW (Chenchamma) i.e widowed daughter in law &
mother of SS was neither given responsibility nor share.
• Raghavamma after his brother in law death i.e testator
allowed Chenchamma to take possession & manage
properties on behalf of minors.
• Four years later SS dies before attaining the majority.
• After his death Raghavamma claimed ¼ (of SS)of ½ of B1
share under the Will.
• Raghavamma claim was resisted by Chenchamma,
who contended that SS died as sole-surviving
coparcener & his share will come to her under
succession, as mother & not to Raghavamma by Will.
• Further she contended B1 was an undivided
coparcener, he did not had right to execute the Will of
his undivided share in mitakshara coparcenary. Thus
Will was invalid.
Issues-
1. Can the declaration & its communication take place
through medium of a Will?
2. Whether a member of HJF becomes separate from
other members of family, by mere declaration of his
unequivocal intention to divide family without
bringing the same into knowledge of other members
of family.
Held: The court observed 2 things are necessary for
effecting severance of status:
1. Declaration of intention
2. Communication of it to the others affected
thereby
In instant case B1 died as undivided coparcener as
intention was not communicated to the guardians
hence share go to SS as survivor thus Chenchamma
will get property as successor of SS not
Raghavamma.
• Will is not communication of intention unless it is
brought into notice of members who are affected
by it.
Reopening of partition
It can be re-opened in by following in certain
circumstances:-
1. Right of son: Adopted son, son in womb at time
of partition. Son conceived & born after
partition.
2. Absent coparcener
3. Minor coparcener
4. In case fraud- any coparcener.
5. If by mistake allotment if property which does
not belong to family, the affected coparcener
can reopen to readjust his share.
6. Disqualified coparcener- on recovery.
7. When father relinquish the share son begotton
later can reopen (step into shoe of father)
 REUNION
RE means Again & UNION means come
back together, signifying that they
were in joint status in past.
Eg. F & S1 partitioned in 2000 . In 2002 son
S2 was born. F & S2 frames coparcenary. SI
wants reunion with S2. Is it possible?
NO, because S1 & S2 were never part of JF,
though they are real blood brothers.
Reunion is possible only between F & S1
only.
Held in Balabux v. Rukhmabai (1903) 30
IA 130 ‘reunion in JF can only tae place
between persons who were parties to original
partition.’
• Reunion under Dharmashastra is permitted
between :-
1. Father & son
2. Brothers
3. Paternal uncle & nephews

• But not permitted between :

1. Grandfather & grandson
2. Great grand father & great grandson
3. Cousins
Devolution of interest in Mitakshara
Coparcenary property under the
HSA,1956
Under classical Hindu law:
• The share of each coparcener fluctuated with
births & deaths. The doctrine of survivorship was
applicable for coparcener, thus nothing remained
for his female dependents.
• This rule was first modified by Women’s Right to
property Act 1937, where coparcener’s widow
was permitted to hold on to his share for rest of
her life, & only on her death doctrine of
survivorship applied & male collateral could take
property.
Position under HSA 1956: The application of
doctrine of survivorship was further diluted in 1956
when HSA was enacted.
The Act confined application the doctrine of survivorship
only in those cases, where Hindu male died as member of
Mitakshara coparcenary, having undivided interest in the
property & did not leave behind him Class I FEMALE heir
OR son of his predeceased daughter.

If Class I females were alive then application of doctrine

defeated & interest of Hindu male calculated after effecting
NOTIONAL partition, went by intestate succession
/testamentary succession as case may be.

Amendment 2005- Sec 6 (3): if any Hindu male dies, having

at the time of his death, undivided interest in mitakshara
coparcenary, the rule of survivorship would not apply at all
• The traditional concept of coparcenary, where
coparcenary property was held with incidents of
survivorship stands abolished expressly by
legislature- Pushpalatha N.V v. V. Padma AIR
2010 Karn 124.
• E.G if HJF comprises of father & two son & one
son dies before partition. The partition takes
place after death of son then there will be
Notional partition of deceased son i.e each one
will take 1/3 share. Since the deceased son was
bachelor/minor his share will go to father u/8
heir as father preferred over brother. Therefore
father will get 2/3 share of total property &
brother will take 1/3 shre only.
Conclusion:
• There is direct application of succession law.
The abolition of doctrine of survivorship creates
unequal rights between surviving coparceners,
which is contrary to basic concept of
coparcenary.

• Whereas legislature has retained the doctrine in

1956, thus not distorted concept & incidents of
coparcenary & at the same time had not given
the females an unfair deal.