1. This appeal was refereed to a Full Bench by a Division Bench consisting of Jaganmohan Reddy, Chief Justice (as he then was) and Sambasiva Rao, J., in view oft the importance of the question that arises inn 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 form the sons after the partition under the doctrine of pious obligation.
2. This appeal is against the order of Gopalakrihsan Nair, J., dismissing a Writ Petition Praying for the issue of a Writ of Mandamus directing the respondent to forbear form collecting certain arrears of income-tax by attachment and sale of there properties. The father of the petitioners, appellants herein was one Venkateswara Rao. He and his divided brother Lakhsman Rao carried on business in partnership under the name and style of Govindarao & Sons. Fro the years 1945-46, 1946-47 and 1947-48 this firm was assessed of 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. N arrangement was made for payment of the earners 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) or 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 file Writ Petition No. 1221 or 1963 before this Court praying for the issue of a writ of mandamus directing the authorities of forbear form 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, Gopalkrishnan 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 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 'Smiritis' the non-payment of a debt was regarded as assign, 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 not 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 there ancestor and relieve him of the after death 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 not of pay any interest. The great grandson was liable only if he received assets form his ancestry. 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 promissed, 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.
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).
YAJNAVALKYA. II . 89. (47)
A son has not 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 made good) idle gifts.
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 contracted from love, anger, spirituous liquor, games, or bailments.
BRIHASPATI, XI (10-118, Gaekwad's Edition, 1941).
Sons shall not 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 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.
This text is attributed to Vyasa according to Ratnakara and to Usanas according to Mitakshara and will be referred to in this Judgments as the text of Usanas. The translations are according to Ghosh in this book on Hindu Law.
4. These passages and in particular the last mentioned one which uses the general expression 'Hindi words' (Na Vyavaharikam) have been the subject of several decisions including those of the Privy Council and of the Supreme Court. Though the expression used in 'Na Vyavaharikam' 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 repugnant to good morals'. Mandlik translated it as 'not proper'. In Darbar Khachar v. Khachar Harsur. ILR (1907) 32 Bom 348 it was translated as 'a debt which as a decent and respectable man the father ought not to have incurred.' In Chhakarui Mahton v. Ganga Prasad, ILR (1912) 39 Cal 862 Justice Mookerjee preferred to read it as 'not lawful, usual or customary'. But the Privy Council in Hemraj v. Khen Chand , after referring to the translation of Colebrokke, 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 terms 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 of 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 form the standpoint of justice and morality.
5. The Supreme Court in Luhar Amrit Lal Nagji v. Doshi Jayantilal Jethalal. : 3SCR842 also expressed the same view.
6. Colebrooke's translation was also accepted by the Supreme Court in S. M. Jakati v. S. M. Borkar : 1SCR1384 . They observed that it is the pious duty of the sons to discharge their father's debts not tainted with immorality or illegality. In Perumal Chetti v. Province of Madras : AIR1955Mad382 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 Smritis. 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. Colebrokke 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 has more than one meaning. But we agree with Mr. Venkata Subramania 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 nay 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 is could be called 'avyavaharika''.
Whatever may be the difference in the translations of this expression, it is now clear that the expression 'avyavahrika' has been understood as repugnant to good morals or tainted with immorality r 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 'avyavaharika'. 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 are 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 at 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 form 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 in 'sulka'. According to the dictionary meaning as well as the meaning given by the various recognised translators of the texts form 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 'Skulka' 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 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, passess, roads. The other meanings of 'sulka' given are 'gain, profit, money advanced to ratify a bargain, purchase price of girl; money given to the parents of a bride; a nuptial present; marriage settlement or dowry presents given by the bridegroom to this bride.' In the various translation, sometimes, the expression 'toll' is used, sometimes 'tax', sometimes 'duty'. In arriving at the meaning of the expression used in the texts it s important to bear in mind the on text 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 this father. As pointed by the Privy Council in 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 form 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 in income-tax cannot be regarded as one such. On the other hand it appears to us tht 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 if 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 form 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 of 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 tax due in respect of the profits of that trade, or debts incurred by the father for the purpose of the payment of those taxes. In interpreting these 'Smritis' which were rendered thousands of years ago it is not safe to merely to take the dictionary meaning and apply it to the texts. 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 deal 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 results 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 rule sentenced 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 Kishor, (1898) 25 I A 54 (PC). In Nidavolu Achutan v. Rantnajee, AIR 1926 Mad 323, Courts-Trotter, C. J. observed that the governing provision in the texts is that which excludes form 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.
7. 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 whom they ought to have been received.
8. In Mayne's Hindu Law it is staged 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 bride price to 'sulka' and to the fact that this translation is supported by Sarvajna Narayana in his gloss on the text in Manu. Mayne is of the opinion that this stands to reason as a promise of bride price is not enforceable even according to the modern decision and being un approved marriage neither the liability of pay the bride price 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 bride price, we are of the opinion that having regard of the context in which it occurs, 'sulka' must be confined only to such liability, thought 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 tainted with illegality or immorality.
9. The Bench of the Madras High Court in : AIR1955Mad382 has to considered 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 form '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 tht the liability to pay court-fee was in anyway 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.
10. 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 against refer to the decision in AIR 1926 Mad 323 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. Courts-Trotter, C. J., observed that a modern court would be free to consider the particular instances given as obsolete under the conditions of today. 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 the view would be entertained today.'
11. 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 not 'avyavaharika' it has to uphold the son's 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 Hanoomanpradsa v. Mt. Babooe, (1857) 6 M I A 393 (PC) 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 and of the Supreme Court in : 3SCR842 and : 1SCR1384 in support of this contention. In the first case the Privy Council observed that if on examination it is found that at its inceptions the debt was not tarnished or tainted with immorality or illegality, then it must be held that it would be binding on the son. In : 3SCR842 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 administer; it would, therefore, not be easy to disengage on 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.
12. In : 1SCR1384 it was observed in paragraph 12 as follows:
'In Hindu Law there are two mutually destructive principles, one the principal of independent coparcenary rights in the sons which is incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their father's debts not tainted with immorality or illegality.'
These decisions lend support to the contention of Mr. Ananta Babu to a considerable extent that the question of liability of the son has to be decided with respect to the question whether the debt is 'avyavaarika' 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 a particular debt is not 'avyavharika' or tainted with immorality or illegality, the son is exempted form liability by reason of the fact that it is one of the numerated class of debts mentioned in smirits 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 debt within the meaning of the texts, or whether it is 'Danda' or whether it incurred 'in love or wrath' etc.
13. 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 the various texts and therefore, they should be confined to cases where some moral turpitude on he part of the father was involved or there could be said that the incurring of the debt was tainted with some illegality or immorality.
14. 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 fro consideration may now be referred to.
15. In M. R. Radhakrishan v. Union of India : 35ITR142(Mad) 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 nay sense a penalty or fine imposed for non-production of accounts or for suppression of material information. that was the 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. I 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' occurring in the Smriti 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.
16. In Chagnti Raghava Reddy v. State of Andhra : AIR1959AP631 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 misdeeds 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.
17. For all the reasons above stated we are of the opinion that Gopalkrishnan 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 form the son after the partition under the doctrine of pious obligation.
18. No other question has been argued before us.
19. The writ appeal is dismissed with costs. Advocate's fee Rs. 250/-.
20. Petition dismissed.