Joint Rights and Liabilities

Liability of Joint Promisors (Section 43)

n    The provisions in this regard are contained in Section 42.

n    “When two or more persons have made a joint promise, then unless a contrary intention appears by the contract, all such persons during their joint lives and after the death of any one of them, his representative jointly with the survivor or survivors and after the death of the last survivor, representatives of all jointly must fulfil the promise.”

n    The impact of this provision is that if two or more persons have made a joint promise, ordinarily all of them during their life-time must jointly fulfil the promise.

n    After death of any one of them, his legal representative jointly with the survivor or survivors should do so.

n    After the death of the last survivor, the legal representatives of all the original co-promisors must fulfil the promise.

n    This rule is applicable only if the contract reveals no contrary intention.

n     X, Y and Z who have jointly borrowed money must, during their life-time jointly repay the debt. Upon the death of X, his representative, say S, along with Y and Z should jointly repay the debt and so on.

n    Section 42 deals with voluntary discharge of obligations by joint promisors.

n    But if they do not discharge their obligation on their own volition, what will happen?

n    This is what Section 43 resolves.

n    When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise.

n    If one of the joint promisors is made to perform the whole contract, he can call for a contribution for others.

 

Example - A, B and C jointly execute a promissory note for Rs. 3,000 in favour of D. A is compelled to pay the whole amount. A, in such a case would be able to realise Rs. 1,000 each from B and C.
 

n    If any of the joint promisors makes a default in making his contribution, the remaining joint promisors must bear the loss arising from such a default in equal shares.
 

In the earlier example, where A, B and C jointly executed the promissory note for Rs. 3,000 and if C was unable to pay anything, then A would be able to realise from B by way of contribution Rs. 1,500 instead of Rs. 1,000.
 

n    We thus observe that the effect of Section 43 is to make the liability in the event of a joint contract, both joint and several, in so far as the promisee may, in the absence of a contract to the contrary, compel anyone or more of the joint promisors to perform the whole of the promise.

 

Example - X, Y and Z jointly borrow from P Rs. 3,000. P may realise the entire amount from X or Y or Z or from all or any two of them.
 

n    A joint promisor cannot claim the right of being sued upon along with his co-promisors.

n    If, however, the promisee sues only one or more of several joint promisors and obtains a decree against him or them, he is precluded from bringing a fresh suit against the other.

n    When, however, the original debtor is a single individual and on his death, the debt devolves upon a number of heirs, the promisee cannot compel any one or more of such co-heirs to the entire amount; he must bring his suit against all the heirs collectively.

n    Here the liability of the heirs is a joint liability and not a joint and several liability as in the case of joint promisors.

n    The effect of release of one of the joint promisors is dealt with in Section 44 which is stated below :
Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor or promisors; neither does it free the joint promisors so released from responsibility to the other joint promisor or promisors.

n    The principle is also applicable to judgement debtors. As a result, the release by a decree holder of a joint judgement debtors does not operate as a release of the other judgement debtors.

 

Rights of Joint Promisees (Section 45)

n    The law is contained in Section 45.

n    “When a person has made a promise to two or more persons jointly, then unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and after the death of any of them with the representatives of such deceased person jointly with the survivor or survivors, and after the death of the last survivor, with the representatives of all jointly.”

n    A, in consideration of Rs. 5,000 lent to him by B and C, promises B and C jointly to repay the sum with interest on a specified day, but B dies. In such a case, right to demand payment shall rest with B’s legal representative, jointly with C during C’s life-time, and after the death of C, with the legal representative of B and C jointly.

n    Here B and C are joint promisees.

n    Similarly, partners, co-sharers, mortgagers, or members of Joint Hindu Family are all joint promisees, when a person makes a promise in their favour.

n    When a debtor promises to repay a debt advanced by them jointly, a suit to enforce the promise, however, must be instituted by all the joint promisees.

n    This rule is, however, applicable subject to contrary intention being shown by the contract.

n    Accordingly, all the joint promisees should sue the promisor.

n    If any one of them refuses to join as plaintiff, he should be added as defendant. (Ashinsa Bibi vs. Abdul Kadar / Mohammed, Isaq vs. Shekh Haq)

n    If a rejoiner is made after the period of limitation, the suit will be time-barred.