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

S. V. 4. 15-16 ] RECOVERY OF DEBTS 217
M. p. 113 ll. 9-17 ]
Us'anas says :
The son need not pay the fine or the balance of a fine, the toll or balance
of a toll or ( any debt ) which is not vyāvahārika.¹
Yājñavalkya ( II. 51 ) mentions the order of those who are responsible
for the payment of debts.
He who receives the estate ( of the deceased ) should be made to pay
his debt and so also one who takes the wife ( of the deceased ); failing
them, the son ( should be made to pay ) when no paternal wealth has
gone to another person ; those who take the wealth of a sonless man
( should be made to pay his debts ).

1. These verses of Us'anas, Bṛhaspati and Yāj. state exceptions to the rule ( Yāj. II
   50 ) that sons ( and grandsons ) had to pay their father's debts. A debt due to lust is defined
   by Kātyāyana ( v. 564 ) as one promised orally or in writing to a woman who is another's
   wife or who is not married to the father. A debt incurred through wrath is defined by
   Kātyāyana ( verse 565 ) as one promised to a man to whom the father caused physical
   injury or whose wealth the father destroyed by way of pacifying him. 'An idle gift' is
   one promised to bards, wrestlers, jesters and the like. In numerous decisions these three
   verses about debts that the son was not bound to pay have been quoted and explained. The
   greatest difficulty is caused by the words 'na vyāvahārikaṁ' in Us'anas. They have been
   variously interpreted by Sanskrit commentators Aparārka explains as 'na nyāyyam'
   ( not righteous or proper ), Sm. C. as 'śaurikaṁ' ( incurred for drinking ) and Vīr. does
   the same. The Bālambhaṭṭī explains as 'na kuṭumbopayogi' ( not for the benefit of the
   family ) while Vivādacintāmaṇi explains it as 'vyavahāra-bahiṣkṛta' ( what is beyond the
   ordinary conduct of a person ). This divergence is reflected in the modern decisions also.
   In Durbar Khachar v. Khachar Harsur 32 Bom. 348 'na vyāvahārikaṁ' was explained
   as a debt which the father ought not as a decent and respectable man to have incurred
   and it was said that the son was not liable for debts attributable to his father's failings,
   follies and caprices This was doubted in 40 Bom. 126 and 43 Bom. 612 and disapproved of in
   39 Cal. 862 ( where it was rendered as 'not lawful, usual or customary' ), 37 Mad. 458
   ( explained as 'not supportable as valid by legal arguments and on which no right could
   be established in the creditor's favour in a court of justice' ), 38 All. 472, 4 Lahore 93
   ( which at p. 97 follows the explanation in 37 Mad. 458 ). In the latest Bombay cases Bai
   Mani v. Usafali 33 Bom. L. R 130 ( at p. 133 ) and Bal v Maneklal 34 Bom. L. R. 55 at
   pp 67-68 (=56 Bom. 36 ) the various meanings of 'na vyāvahārikaṁ' and the conflict of
   judicial decisions are set out. In the latter case ( at p 69 ) the wide interpretation contained
   in 32 Bom. 348 has not been accepted In this Bombay case it was held that the trade
   debts incurred by a Hindu father for the purposes of a trade started by himself are binding
   on his sons. But this proposition seems to be wrong in view of the Privy Council ruling
   in the Benares Bank Ltd. v. Hari 34 Bom. L. R 1079 ( P. C ), where it was held that a
   business started by the father as manager cannot, if new, be regarded as ancestral so as
   to render the minor member's interest in the joint family property liable for debts con-
   tracted in the course of the business Another difficulty is caused by cases where the father
   incurs liability for misappropriating money as a guardian or trustee or is guilty of a criminal
   act. Vide 31 Mad 161 and 472 ( distinguishing 27 Mad 71 ), 48 All. 9, 51 All. 386 ( at p.
   391 'na vyāvahārikaṁ' referred to ), 43 Bom. 612 'In Bai Mani v. Usafali 33 Bom.
   L. R. 130 it was held that a Hindu son is not liable to pay his father's debt where the
   liability arises directly from a criminal act ( e. g. where the father being appointed
   guardian of a minor misappropriates minor's money ).
   V. M. 28