J. DEVARAJA RAO AND OTHERS Vs. INCOME

JUDGEMENT

(1.) This appeal was referred to a Full Bench by a Division Bench consisting of Jaganmohan Reddy, Chief Justice (as he then was) and Sambasiva Rao, J., in view of the importance of the question that arises in this case, namely whether the arrears of income-tax, due by the father in respect of a separate business prior to a partition between him and his sons can be recovered from the sons after the partition under the doctrine of pious obligation.

(2.) This appeal is against the order of Gopalakrishnan Nair, J., dismissing a Writ Petition praying for the issue of a Writ of Mandamus directing the respondent to forbear from collecting certain arrears of income-tax by attachment and sale of their properties. The father of the petitioners, appellants herein was one Venkateswara Rao. He and his divided brother Lakshman Rao carried on business in partnership under the name and style of Govindarao and Sons. For the years 1945-46, 1946-47 and 1947-48 this firm was assessed to a total income-tax of Rs. 92, 178-44. The firm was dissolved by an agreement between the two partners in the end of 1948. The tax was not paid by the partners in spite of demand. On 20-11-1952 Venkateswara Rao and his sons who constituted a joint family partitioned their family properties, each of them taking a separate share. No arrangement was made for payment of the arrears of income-tax due by the father, Venkateswara Rao, as a partner of the aforesaid firm. Eventually the Income-tax Officer issued a certificate under Section 46(2) of the Income-tax Act for recovery of the tax due by proceeding against the properties of the father which the father as well as the sons obtained in the partition. The properties were attached and were sought to be brought to sale. The sons, thereupon filed Writ Petition No. 1221 of 1963 before this Court praying for the issue of a writ of mandamus directing the authorities to forbear from proceeding with the recovery of the arrears of income-tax. Several contentions were raised before Gopalakrishnan Nair, J., all of which were negatived by him. It is sufficient to mention only the third contention raised before him, as that is the only contention that is pressed before us, i.e. the doctrine of pious obligation of the sons of a Hindu to discharge the pecuniary liability of their father which is not tainted by illegality or immorality does not extend to the liability of the father to pay arrears of income-tax. Gopalakrishnan Nair, J., negatived this contention stating that the debts due to the Government undoubtedly stand on a higher footing than a debt due to a private individual or institution and the pious obligation of the sons to discharge their father's debt would extend also to the above debt due to the State. In the result he dismissed the Writ Petition. The same contention is reiterated before us in this Appeal.

(3.) Under ancient Hindu Law as laid down by the 'Smritis' the non-payment of a debt was regarded as a sin, the consequences of which follow the debtor even after his death. A text which is attributed to Brihaspathi says "He who having received a sum lent or the like does repay it to the owner, will be born hereafter in the creditor's house a slave, a servant, a woman or a quadruped." There are other texts which say that a person in debt goes to hell. Hindu Law-givers therefore imposed a pious duty on the descendants of a man including his son, grandson, and great grandson to pay off the debts of their ancestor and relieve him of the afterdeath torments consequent on non-payments. In the original texts a difference was made in regard to the obligation resting upon sons, grandsons and great grandsons in this respect. The son was bound to discharge the ancestral debt as if it was his own together with interest and irrespective of any assets that he might have received. The liability of the grandson was much the same except that he was to pay any interest. The great grandson was liable only if he received assets from his ancestor. This doctrine as formulated in the original texts which usually referred to as the doctrine of pious obligation has been modified in some respects by judicial decisions. Under the decisions as they now stand there is no difference between, son, grandson and great grandson so far as the obligation to pay the debt of the ancestor is concerned. But none of them has any personal liability in the matter irrespective of receiving any assets. To this general obligation of discharging the father's debts, several exceptions were laid down by the Smriti writers. It is useful to set down the various texts which deal with this : MANU. VIII. 159. But money due by a surety, or idly promised, or lost at play, or due for spirituous liquor, or what remains unpaid of a fine and tax or duty, the son (of the party owing it) shall be obliged to pay. GAUTAMA. XII. 41. Money due by a surety, a commercial debt, a fee (due to the parents of the bride), debts contracted for spirituous liquor or in gambling and a fine shall involve the sons (of the debtor). YAJNAVALKYA. II. 89. (47) A son has to pay, in this world his father's debt incurred for spirituous liquor for gratification of lust, or in gambling, nor a fine nor what remains unpaid of a toll; nor (shall he make good) idle gifts. NARADA: A father must pay the debt of his son but a son must pay a debt contracted by his father excepting those debts which have contracted from love, anger, spirituous liquor, games, or bailments. BRIHASPATI. XI. (10-118, Gaekwad's Edition, 1941). Sons shall be made to pay (a debt incurred by their father) for spirituous liquor, for idle gifts, for promises made under influence of love or wrath, or for suretyship; nor the balance of a fine or toll (liquidated in part of their father.) VYASA OR USANAS. The son has to pay a fine or the balance of a fine, or a tax (or toll), or its balance (due by the father), nor that which is proper. This text is attributed to Vyasa according to Ratnakara and to Usanas according to Mitakshara and will be referred to in this Judgment as the text of Usanas. The translations are according to Ghosh in his book on Hindu Law.