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TMI Blog1970 (1) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... of a total income-tax of ₹ 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is useful to set down the various texts which deal with this: 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. NARADA: 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 bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. also expressed the same view. 6. Colebrooke's translation was also accepted by the Supreme Court in S. M. Jakati v. S. M. Borkar, . 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, 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 custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ind App 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. 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 enum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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