In the case in V.D. Deshpande v. Kusum Kulkarni AIR 1978 SC 1791, it is held that in order to determine what property is available for partition, provision must first be made for joint family debts which are payable out of the joint family property personal debts of the father not tainted with immorality maintenance of dependent female members and of disqualified heirs, and for the marriage expenses of unmarried daughter. This must be so because partition is of joint family property and if the joint
family debts are repaid before the partition only the residue would be available for partition.
It is further held that if the partition makes no provision for repayment of just debts payable out of the joint family property, liability of the joint family property in the hands of the coparceners acquired on partition as well as the pious obligation of the sons to pay the debts of the father still remains.
The only effect of partition is that after the disruption of the joint family status by partition the father has no right to deal with the property by sale of mortgage even nor to discharge an antecedent debt nor is the son under a legal obligation to discharge the post-partition debts of the father.
If the debt is for legal necessity or for the benefit of the joint family estate the borrower would render the joint family property liable for such debt and if it is for his personal benefit the joint family property even in the hands of his sons would be liable if the debt is not tainted with illegality or immorality.
As per the rulings in : Kamalammal v. Senthil, AIR 2003 Mad 337 at 338, 339, 340; Raghunandan Sabu v. Badri Teli, AIR 1938 All 263; Waidya Wanti v. Jai Dayal, AIR 1932 Lah 541, the following debts according to the ancient law givers appears to be immoral debts:—
(a) debts dues for spirituous liquors,
(b) debts due for losses at pay or gambling debts,
(c) debts contracted under the influence of lust or wrath,
(d) debts due for promises made without consideration or useless gifts,
(e) debts for being surety for the appearance or for the honestly of another,
(f) unpaid fines,
(g) unpaid tolls,
(h) commercial debts, and
(i) debts that are Avyavaharika.
These headings can be deduced from one or other of the ancient texts, and it is also clear that some of them have not been affirmed by judicial decisions, e.g. the test of Gautam, Chapter 12, section 41 to the effect that the sons are not liable for their father’s commercial debts has long become obsolete, and sons are not liable for debts incurred by the father in the course of business carried on for the benefit of the family, but there can be no doubt that British Indian Courts have recognized that avyavaharika debts of an ancestor are not binding on his descendants, and in various cases difficulty has arisen by reason of an absence of an accurate definition of the term avyavaharika debt. It has been translated in various ways as debts that are not “lawful”, “usual”, “customary”, “proper”, “supportable as valid by legal arguments and on which no right could be established by the creditor in a Court of justice”, but the best or rendering is perhaps that the Colebrooke as a debt for a cause “repugnant to good moral”.
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