1. Having regard to the point raised in this case viz., whether the arrear of income-tax due by the father in respect of a separate business prior to the partition of the Hindu Joint Family is a debt which can be recovered from the sons after the partition on the doctrine of pious obligation, we think the matter should be referred to a Full Bench. No doubt, a Bench of this Court in K. Devadattam v. Union of India(1) did consider this question but the point that is now argued before us viz., that the word ‘sulka’ used in the several Smriti texts under which the son is absolved of the pious obligation to pay a debt refers to the debt incurred for non-payment of arrears of tax, was not actually considered. Rajamannar, C.J in a Bench Judgment of the Madras High Court in M.R. Radhakrishnan v. Union Of India(2) did deal with this aspect of the matter, but even he, at page 73, said that the appellant's learned counsel did not develop the point; nor did he cite any authority for the position that the word ‘Sulka’ occurring in the Smriti texts would apply to the arrears of income tax. In the absence of such assistance, he held that the sons could not escape the liability to discharge the debt incurred by the father. Apart from this, there are several other decisions of the Privy Council and the Supreme Court, which deal with the principle of pious obligation and its applicability to the debts of the father, which will have to be considered in the context of the arguments now advanced. As this matter is one of some importance and it is likely to crop up from time to time, we think a reference to the Full Bench is manifestly proper. We accordingly refer the case to the full Bench.

2. In pursuance of the said order of Honourable Mr. P. Jaganmohan Reddy the Chief Justice and the Hon'ble Mr. Justice Sambasiva Rao, the appeal came on for final hearing before the Full Bench. Mr. P. Rama Rao, Advocate for the Appellants.

3. Mr. T. Ananta Babu, Advocate for the respondents.

The Judgment of the Court was delivered by

Kuppuswamy, J.:— 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.

4. This appeal is against the order of Gopalakrishna 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 Lakshmana Rao carried on business in partnership under the name and style of Govinda Rao and sons. For the years 1945-1946, 1946-1947, and 1947-1948 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 inspite 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 1953 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 deb's 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.

5. Under Ancient Hindu Law as laid down by the “Smritie” the non-payment of a debt was regarded as a sin, the consequence 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 not repay it to the owner, will be born hereafter in the creditor's house as a slave, a servant, a woman or a quardruped”. 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 after death torments consequent on non-payment. 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 not 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 is 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:

6. 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 not be obliged to pay.

Gautama. XII. 41:

7. 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 not involve the sons (of the debtor).

Yagnavalkya.

8. A son has not to pay, in this world his father's debt incurred for spirituous liquor for gratification of just, or in gambling, nor a fine nor what remain unpaid of a toll nor shall he make good idle gifts.

Narada:

9. A father must not pay the debt of his son but a son must pay a debt contracted by his father excepting those debts which have been contracted from love, anger, spirituous liquor, games or bailments.

Brihaspati. XI.

10. Sons shall not be made to pay (a debt incurred by their father) for spirituous liquor, for idle gifts, for promises made under the influence of love or wrath, or for suretyship; nor the balance of a fine or toll (liquidated in part by their father).

Vyasa or Usanas:

11. The son has not 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 not proper.

12. 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.

13. The translations are according to Ghosh in his book on Hindu law.

14. These passages and in particular the last mentioned one which uses the general expression “x x” (Na Vyaharikam) have been the subject of several decisions including those of the Privy Council and of the Supreme Court. Though the expression used is ‘Navyaharikam’ it is ordinarily referred to by a single expression ‘Avyavaharika’ which means the same thing. There has been a considerable difference of opinion as to the true meaning of this expression. Colebrooke translated these words as meaning “Debt for a cause of repugnant to good morals”. Mandlik translated it as ‘not proper’. In Darbar Khachar v. Khachar Hansar it was translated as “a debt which as a decent and respectable man the father ought not to have incurred”. In Chhakauri Mahton v. Ganga Prasad justice Mookerjee preferred to read it as “not lawful, usual or customary” but the Privy Council in Hemraj Alias Babu Lal v. Khen Chend(3) after referring to the translation of Colebrooke, and Mandlik and the judgments of the court in India interpreting the term ‘avyavaharika’ observed that having regard to the principles underlying the rule of pious obligation which forms the foundation for the son's liability, the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the term as used in the Smriti text and may well be taken to represent its correct meaning. In their Lordships' view the term does not admit of a more precise definition. It was held that when a particular debt is called in question, it would be the duty of the Courts to examine its nature in the light of the principles mentioned in the judgment, which are not exhaustive but only basic, and to see whether in the circumstances it is of the kind which give exemption to the son from the liability to pay it, on the ground that it is repugnant to morals. In that decision it was also observed that the duty cast on the son being religious or moral, the character of the debt should be examined from the standpoint of justice and morality.

15. The Supreme Court in Luhar Amrit Lal Nagji v. Doshi Jayanthilal Jethalal(4) also expressed the same view.

16. Colebrooke's translation was also accepted by the Supreme Court in S.M Jakati v. S.M Borkar(5). They observed that it is the pious duty of the sons to discharge their fathers debts not tainted with immorality or illegality. In Perumal Chetti v. Province of Madras(6). Chief Justice Rajamannar delivering the judgment of the Division Bench observed.

“We have our doubts if that term had a precise and definite meaning even in the days of the Smritish. It is like, “just and convenient”, “reasonable and prudent”, “Justice, equity and good conscience”. To give the latest example it is an expression as elastic and indefinite as the expression “reasonable restrictions” in Article 19 of our Constitution. Colebrooke translated the expression “Avyavaharika” as ‘repugnant to good morals’. There have been other translations, like ‘Improper’ and not lawful, usual or customary”. “Vyavahara” is a word which had more than one meaning. But we agree with Mr. Venkata Subramanya Aiyar that the word has reference to the ideal of good conduct according to the notions prevailing at the material time. But we are unable to hold that any debt which the father ought not to have strictly contracted is necessarily a debt which is ‘Avyavaharika’. There should be an element of moral turpitude involved in the debt. It is only then that it could be called ‘Avyavaharika’.

17. Whatever may be the difference in the translations of this expression, it is now clear that the expression ‘avyavaharika’ has been understood as repugnant to good morals or tainted with immorality or illegality or involving some moral turpitude. Even if a wider meaning such as ‘improper’ is given there can be no doubt that the liability in the present case, namely, the liability of the father to pay arrears of income-tax which had accrued in respect of the business which he was carrying on cannot be said to be ‘avyavabarika’. In our opinion it is impossible to argue that the liability to pay taxes legally due to the Government is an “avyavaharika” debt within the meaning of the texts as interpreted by the judicial decisions, some of which have been referred to above. It is stated that the assessment was made on an estimated income but even so the tax so levied would still be tax legitimately due as it has been held that even an estimate cannot be arbitrary and must rest on some rational basis. There would be some scope for argument if a penalty or fine had been levied due to the negligence or laches of the assessee or due to his non-compliance with any provision of law. As that is not the case here we express no opinion on that matter. We may also state that Mr. Rama Rao also did not seriously contend before us that the said liability would be in the nature of an ‘avyavaharika’ debt not binding upon the son. His main argument however, was that the exemption from liability of the son under the doctrine of pious obligation is not only in respect of an ‘avyavaharika’ debt, but in respect of the various classes of debts, mentioned in the several texts referred to earlier. He submitted that one class of debts which is specifically mentioned in the text of Usanas and the other texts is ‘sulka’. According to the dictionary meaning as well as the meaning given by the various recognised translators of the texts from time to time, the expression ‘sulka’ would also include a tax. As the Smritis expressly state that the son is not liable to pay the ‘sulka’ which remained unpaid by the father it is argued that the son is not liable for the arrears of income tax payable, by the father in this case. It is very difficult at this distance of time to find out what the “Smriti” text writers meant by the expression ‘sulka’. The dictionary meaning as given in Apte's Dictionary is toll, tax, customs duty particularly levied at ferries, passes, roads. The other meanings of Sulka given are gain, profit, money advanced to ratify a bargain, purchase price of a girl; money given to the parents of a bride; nuptial present; marriage settlement or dowry; presents given by the bridegroom to his bride”. In the various translations, sometimes, the expression toll, is used, sometimes ‘tax’ sometimes ‘duty’. In arriving at the meaning of the expression used in the texts it is important to bear in mind the context in which these passages occurred. As observed already these texts refer to the exceptions to the general rule that a son is liable to pay the debts of his father. As pointed by the Privy Council in Hemraj alias Babu Lal v. Khem Chand most of the debts mentioned in the texts as debts which he need not pay, are of objectionable character. Even if some type of taxes or duties were exempt from the doctrine of pious obligation for certain reasons which appealed to the ancient Smriti text writers, it is for the court to decide in the context of the present society whether any particular tax liability is of such a nature as could be treated as one tainted with illegality or immorality or opposed to right conduct as to bring it within the exceptions to the general rule that the son is liable to pay the father's debt. We have no hesitation in holding that the liability to pay arrears of income-tax cannot be regarded as one such. On the other hand it appears to us that it is obligatory on the son that he should pay taxes which are legitimately due to the State by his father. Even from ancient times till the present day the liability to pay tax to the State is regarded as one of the foremost duties of the citizens. We cannot believe that the ancient law givers who laid so much stress upon the duty of the son to his father's debt would have exempted him from payment of the taxes legally due by the father to the State. It has been repeatedly held that the son is liable to pay the debts of the father incurred during the course of trade which he had lawfully carried on. It does no stand to reason that while the son is liable to pay the debts of the father so incurred, he is not liable to pay the taxes due in respect of the profits of that trade, or debts incurred by the father for purpose of the payment of those taxes. In interpreting these ‘Smrities’ which were rendered thousands of years ago it is not safe to merely take the dictionary meaning and apply it to the text. In this connection it has to be remembered that these ‘smritis’ also deal with religious and moral law. According to Hindu conception ‘Dharma’ is of widest significance and includes religious, moral, social and legal duties and can only be defined by its contents. The Hindu ‘Dharma Sastra’ therefore deals with religious and moral law as well as civil and criminal law. It is true that the Smriti writers knew the distinction between ‘vyavahara’ or the like, the breach of which result in judicial proceedings, and the law in the widest sense. But having regard to the fact that all the old texts and commentaries are apt to mingle religious and moral considerations, not being positive laws, with the rules intended to be positive laws, their Lordships of the privy council have repeatedly emphasised the necessity for caution in the interpretation of ‘smritis’ vide Rao Balwant Singh v. Rani Kishori(7). In Nidavolu Achutan v. V. Ratnajee(8) Coutts, Trotter, C.J observed that the governing provision in the texts is that which excludes from the rule debts that are not vyavaharika and particular instances given in the smritis must be treated as a mere expression of opinion on the part of the authors as to what class of debts would fall under general words.

18. Strange, in his book on Hindu Law seems to think that the reason that debts due for tolls are excepted may be that they are to be regarded as ready money payments, for which credit will have to be given at the risk of him by warn they ought to have been received.

19. In Maynes' Hindu Law it is stated that the expression ‘sulka’ in the smritis is ambiguous. It is sometimes translated as a toll or a tax. Another meaning of the word ‘Sulka’ is a nuptial present, given as the price of a bride. Reference is made to Haradatta's translation where he assigns the meaning of brideprice to ‘sulka’ and to the fact that this translation is supported by Sarvajana Narayana in his gloss on the text in Manu. Mayne is of the opinion that this stands to reason as a promise of brideprice is not enforceable even according to the modern decisions and being unapproved marriage neither the liability to pay the brideprice nor a debt incurred for the purpose of paying it can be lawful or proper (vyavaharika). Even if the meaning is not restricted to the last mentioned one, namely, the brideprice, we are of the opinion that having regard to the context in which it occurs, ‘sulka’ must be confined only to such liability, though in the nature of tax or a duty, which would involve some moral turpitude on the part of the father or the incurring of which would be tained with illegality or immorality.

20. The Bench of the Madras High Court in Perumal Chetty v. Province of Madras had to consider whether court-fee payable by the father in a litigation which he carried on comes within the expression ‘Danda’ used in, the text which as has been noticed is also one of the specifically enumerated class of debts mentioned in the text. It was observed that the conception of the court-fee at the present day is radically different from ‘Danda’ which was imposed on the parties to a litigation in the days of ‘smritis’, and that whatever the theory underlying the court-fee may be, it is clearly not in the nature of punishment. They observed that the conception of ‘Dharma’ and ‘Nyaya’ changes and the liability even under the smritis would have to be judged by the present day notions and if judged by those notions, it could not be said that the liability to ply court-fee was in any way inconsistent with right conduct. We are of the view that the same approach should be made in interpreting the expression ‘sulka’ in the same texts.

21. If the expression ‘sulka’ were to be regarded as meaning any tax or duty, we would hold that the texts in so far as they refer to ‘sulka’ have become obsolete. In this connection we may again refer to the decision in Nidavolu Achutan v. Ratnajee where it was argued that as ‘commercial debt’ is one of the exceptions mentioned in the text of Gautama the son is not liable to pay, under the doctrine of pious obligation, any commercial debt. Coutts, Trotter, C.J observed that modern court would be free to consider the particular instances given as obsolete under the conditions of to-day. He observed “I am clearly of opinion that commercial debts fall into that category and we ought to say that the pious obligation extends to them. It may well be that in the time of Gautama it was thought that to engage in trade was degrading at any rate in the case of higher castes, but no one could pretend that view would be entertained to-day”.

22. Mr. Ananta Babu contended on behalf of the respondents that the only question for consideration of the court is whether a particular debt is ‘avyavaharika’ or not and if it is satisfied that the debt is ‘avyavaharika’ it has to uphold the sons' liability to pay the father's debts. He contended that though the smriti texts mentioned several classes of debts, specifically therein enumerated, in view of the judicial decisions ever since the decision in Hanooman-Presaud v. Mt. Babooe(9) the position is that the courts have been considering only whether a particular debt is ‘avyavaharika’ or not and not whether any debt falls under anyone of the other enumerated categories mentioned in one or other of the texts. He relied upon the decision of the privy Council in Hemraj alias Babu Lal v. Khem Chand and of the Supreme Court in Lahar Amritlal Nagji v. Doshi Jayantilal Jethaial and S.M Jakati v. S.M Borkar in support of this contention. In the first case the privy council observed that if on examination it is found that at its inception the debt was not furnished or tainted with immorality or illegality then it must be held that it would be binding on the son. In Luhar Amritlal Nagji v. Doshi Jayantilal Jethalal it was observed that in this branch of law several considerations have been introduced by judicial decisions which have substantially now become a part and parcel of Hindu Law as it is administered; it would, therefore not be easy to disengage the said considerations and seek to ascertain the true effect of the relevant provisions contained in ancient texts considered by themselves. They said that they were not prepared to decide the point raised purely in the light of ancient Sanskrit texts.

23. In S.M Jakati v. S.M Borkar it was observed in paragraph 12 as follows:—

“In Hindu Law there are two mutually destructive principles, one the principle of independent coparacenary rights in the sons which is incident of birth, giving to the sons vested right in the coparcenar property, and the other the pious duty of the sons to discharge their father's debts not tainted with immorality or illegality”.

24. These decisions lend support to the contention of Mr. Ananta Babu to a considerable extent that the question of liability of the sons has to be decided with respect to the question whether the debt is ‘avyavaharika’ or not or in other words whether the debt is tainted with illegality or immorality. At the same time we have to observe that in these decisions their Lordships were not considering the exact question raised before us, namely, whether even assuming that particular debt is not ‘avyavaharika’ or tainted with immorality or illegality, the son is exempted from liability by reason of the fact that it is one of the enumerated class of debts mentioned in smritis dealing with the exemption. If the liability is to depend solely on the question whether it is ‘avyavaharika’ or not there would be no need at all to examine the question whether any particular debt falls within any of the enumerated categories. But we have several decisions wherein are considered questions whether a particular debt is a surety debt within the meaning of the texts, or whether it is ‘Danda’ or whether it is incurred ‘in love or wrath’ etc.

25. It is unnecessary to pursue this line of argument further as practically the same result has been arrived at by our holding that in interpreting the enumerated class of exemptions we have to bear in mind the context in which they appear in various texts and therefore, they should be confined to cases where some moral turpitude on the part of the father was involved or there could be said that the incurring of the debt was tainted with some illegality or immorality.

26. The two decisions in which the question relating to the liability of the son to pay arrears of income-tax payable by the father directly arose for consideration may now be referred to.

27. In M.R. Radhakrishnan v. Union Of India(10) the Division Bench of the Madras High Court held that there was no element of moral turpitude in not paying income-tax due. The assessment actually made was not in any sense a penalty or fine imposed for non-production of accounts or for suppression of material information. That was a case in which the income-tax was levied on an estimated income. Dealing with the argument that it came directly within the expression ‘Sulka’ it was observed that it is impossible to be certain of the meaning of this word as it occurs in the smritis. It may mean either a toll or a tax or a nuptial present given as the price of a bride. They pointed out that the appellant's counsel did not develop the point, nor did he cite any authority for the position that the word ‘sulka’ occuring in the smritis text would apply to arrears of income-tax. Though there is no full discussion on this subject in that decision we are inclined to agree with the ultimate decision for the reasons which we have given earlier.

28. In Chaganti Raghava Reddy v. Income Tax Officer(11) it was contended that as the assessments were according to the best judgment not being on merits it was in the nature of penalty arising out of the mis-deeds of the father and consequently the sons were not liable to such debt of the father. This contention was negatived. Though there is no discussion on this question the conclusion is in accordance with the view which we have expressed above.

29. For all the reasons above stated we are of the opinion that Gopalakrishna Nair, J. was right in holding that the arrears of income-tax due by the petitioner's father in respect of separate business prior to partition between him and his son can be recovered from the son after the partition under the doctrine of pious obligation. No other question has been argued before us.

30. The Writ Appeal is dismissed with costs. Advocate Fee. Rs. 250/-.