‘Pious obligation’ means the moral liability of sons to pay off or discharge their father’s non-avyavaharik debts. The debts borrowed may not be of legal necessity or for benefit of estate. Thus, if the father is the Karta of a Hindu joint family, he may alienate the coparcenary property for discharging the antecedent debts. The sons are under the obligation to recover such alienated property by repaying the debts.
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The ancient doctrine of pious obligation was governed by Smriti law. There is a pious obligation on the sons and grandsons to pay the debts contracted by the father and grandfather. According to Privy Council this obligation extends to great grandsons also because all the male descendants upto three generations constitute coparcenary and every coparcener is under a religious obligation to pay the debt contracted by their ancestor, provided such debt was not taken for an immoral or unlawful purpose.
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The concept of pious obligation has its origin in Dharmashastras, according to which non-payment of debt is a sin which results in unbearable sufferings in the next world. Hence the debts must be paid off in all circumstances provided it was not for immoral and illegal purposes. Vrihaspati has said, “If the father is no longer alive the debt must be paid by his sons. The father’s debt must be paid first of all, and after that a man’s own debts, but a debt contracted by the paternal grandfather must always be paid before these two events.
The father’s debts on being proved, must be paid by the sons as if their own, the grandfather’s debt must be paid by his son’s son without interest, but the son of a grandson need pay it at all. Sons shall not be made to pay (a debt incurred by their father) for spirituous liquor, for idle gift, for promises made under influence of love or wrath, or for surety ship, nor the balance of a fine or toll liquidated in part by their father. Yajyavalkya says, “A son has not to pay in this world father’s debt incurred for spirituous liquor, for gratification of lust or gambling, nor a fine, nor what remains unpaid of a toll; nor idle gifts.” But in case of debts for purposes other than the above, on the death of the father, or on his going abroad, or suffering from some incurable disease, the debt contracted by him would be payable by his sons and grandsons.
The Mitakshara has presented the entire proposition in stronger words. According to it when the father has gone abroad or is suffering from some incurable disease, the liability to pay the debt contracted by him would lie on the sons and grandsons irrespective of the fact that the father had no property. There are reasons for fixing this liability on sons and grandsons. The liability to pay the debt is in the order, viz., in absence of father the son and in absence of son the grandson.
It is worth noting that the doctrine of pious obligation does not extend the liability to females notwithstanding she has been given a share in the joint family property on partition. Where the wife gets a share on partition between husband, sons and herself, still she would not be under any obligations to pay the debt of the ancestor (father).