व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

216 VYAVAHĀRAMAYŪKHA [ S. V. 4. 14-15 !
[ M. p. 112 l. 31 p.118 l.9
Kātyāyana says
While the father's debt remains (unpaid) the son shall not take the
father's wealth which should be given to the creditor even without
(paternal) wealth the son is made to pay the father's debt.
The word dravyam (in Kāt.) is to be connected with ṛte the
meaning being without or in the absence of wealth. Bṛhaspati (p. 328 v
48) says
The father's debt must be paid first of all and after that a man's own
debt but a debt contracted by a grandfather must always be paid even
before these two.¹
*Yājñavalkya (II 47) says
The son shall not pay his father's debt contracted for wines lust and
gambling or due on account of unpaid (portions of) fines or tolls or on
account of an idle promise
Bṛhaspati (p. 329 v 51) says
(The king) should not make the son pay a debt (of his father) incurred
for wines or (losses) in gambling with dice for idle gifts or promises
made through lust or wrath, or for suretyship or for the balance of a fine
or toll.

1. This verse is in apparent conflict with another verse of Bṛ. quoted above (vide
   p. 214n 4). This verse must be taken as referring to a case where assets were taken
   by the grandson. The number of cases in which the son's or grandson's liability to pay
   the father's or grandfather's debts has been recognised in modern decisions is incalculable
   It is impossible to refer to them. The several propositions deducible from the decided
   cases are summarised in Joharmal v Eknath 3 Bom. L. R. 322 and very recently by the
   Privy Council in Brij Narain v Mangla Prasad L. R. 51 I A. 129 (= 46 All 95). The
   propositions laid down by the P C. are (1) The manager of a joint undivided estate
   cannot alienate or burden it except for purposes of necessity (2) if the manager be the
   father and the other members be his sons, he may so long as it is not for an immoral pur-
   pose, lay the estate open to be taken in execution upon a decree for the payment of his per-
   sonal debt (3) if the father purports to burden the estate by a mortgage it would not
   bind the estate unless it is made for discharging an antecedent debt (4) antecedent
   means antecedent in fact as well as in time i. e. it must be truly independent of and not
   part of the transaction impeached by the son (5) this result is not affected by the ques-
   tion whether the father is alive or dead. It will be seen that in propositions 2 and 3 the
   Privy Council makes a distinction between a pure money debt of the father and a debt of
   the father secured by a mortgage. The ancient Hindu Law books afford no warrant for
   this distinction. Besides the P C. in Suraj Bunsi Koer v Sheo Prashad 6 I. A 88 at p.106
   (= 5 Cal. 148 171) for the first time used the words antecedent debt for which there is
   nothing corresponding in the Sanskrit texts and round which elaborate arguments have
   centred in numerous cases. According to the P C. (proposition 5) the son's pious duty
   to pay his father's debt is as absolute during the father's lifetime as after his death. This
   goes far beyond the spirit of the ancient Smṛti texts which made the son liable during the
   father's lifetime only if the father had gone abroad for many years or was afflicted with
   incurable disease or was extremely old. Vide Yāj. II 50 Nārada and Kātyāyana quoted
   above.
   P 185 (text)