Legal Provisions Regarding Partition between two brothers in India – Explained!

In Hindu Law the liability of one person to pay the debts of another arises from three different sources, firstly, the religious duty of discharging the debtor; secondly the moral duty of paying debt incurred by one whose assets pass into the hands of another and thirdly the legal duty of paying a debt incurred by one person as agent, express or implied of another. Any one of them is sufficient though there may be cases where more than one of these grounds may be found to be coexisting.

The first ground of liability, i.e., the religious duty, only arises in the case of the debtor and his own sons and grandsons, they are under pious obligation to pay the debts of their father, grand­father, or great grandfather, although such debts may have been incurred for the personal benefits of the debtor himself and not for the benefit of the family, provided that these debts are not incurred for illegal or immoral purposes.

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For example, debts for drinks, for satisfaction of lust, for gambling etc., are debts for immoral purposes. In this problem Rs. 300 have been spend on drinks and obviously, therefore, the sons are not liable personally for it.

We have to see whether their property, which they may have inherited from their father, is in any way liable. It should be understood at the outset that the whole family property is liable for the whole amount due on the pronote. This liability existed even when the sons did not inherit any property of the debtor under the pure Hindu law. But rule of the pure Hindu Law has been relaxed by the Indian Courts and the sons have been free from their personal liability.

Thus their personal or separate prop­erty is not liable; but only their interest in the joint family property is liable. In that case there is no family property which is joint with A. A partition has been effected between A and B. Therefore, the sons are not liable for their personal or separate property. Their liability is limited only to their interest in the joint family property.

The presumption made in the beginning that B’s retention of the pronote could be recovered by A as a debt should now be made clear. The amount that was spending on drinks by itself does not make any difference in the right of A to recover that which was his share after partition. A did not advance the amount spend on drinks as debts for purposes to drinking and so A is not precluded from recovering it as his share on partition.

It must be understood that what A is seeking to recover from B in his share on partition, which is in possession of B and in the presence of B the sons have no liability except when they are in possession of such property and have been impleaded by A as defendants along with B. In such a case a decree against the suns also may be passed in respect of such properly only as is in their possession.