Performance by Joint Promisors / to Joint Promisees

Sections 42 to 45 of the Indian Contract Act, 1872 are the Act's small but disproportionately tested package on joint promises. Four sections, four working rules: who must perform when several persons make a joint promise (Section 42); whom the promisee may sue when they do not (Section 43); what happens when the promisee releases one of them (Section 44); and where the right to claim performance rests when the promise was made to several persons jointly (Section 45). The chapter is a deliberate departure from the English common law and that departure is exactly what the examiner tests.

Read these sections together with the rest of the performance chapter: Sections 37 to 41 set the general rule that the parties must perform; Sections 42 to 45 fix what "the parties" means when there is more than one promisor or more than one promisee. The doctrines that surface here — joint and several liability, contribution, survivorship, the anomalous Indian rule on release — are foundational for partnership disputes, surety claims under quasi-contractual claims, family-property litigation, and bank-recovery suits.

Statutory anchor

Section 42 places the obligation on all the joint promisors during their joint lives, and on the representative of the deceased jointly with the survivors after the death of any one of them, and on the representatives of all jointly after the death of the last survivor. The rule is subject to a contrary intention in the contract. Section 43 turns to the promisee's standpoint: 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. Each joint promisor who has paid more than his share has a right of contribution against the others.

Section 44 deals with release: where the promisee releases one of the joint promisors, the others remain liable, and the released promisor remains liable to contribute to the others. Section 45 turns to the joint-promisee side: when a person has made a promise to two or more persons jointly, the right to claim performance rests with them during their joint lives, and after the death of any of them with the representatives of the deceased jointly with the survivors.

Section 43 — joint and several liability

Section 43 is the most important provision in the package. It converts what would have been a purely joint liability at English common law into a joint and several liability under Indian law. The promisee is therefore not put to the trouble of suing all the joint promisors together; he may pick any one of them, or any combination, and recover the whole. Non-joinder of a co-promisor is not a defence — a sharp departure from the strict-joinder rule of English common law that the Act consciously rejected. The Bombay High Court applied the rule directly in In re Vallibhai Adamji, A.I.R. 1933 Bom. 407, holding that partners are co-contractors as far as third parties are concerned and any one or all may be sued for the whole.

The Supreme Court applied Section 43 in Rama Shankar Singh v. Mst. Shyamlata Devi, A.I.R. 1970 S.C. 716. A lease deed had specified the share of each lessee in the rent. The court held that having regard to Section 43, the lessees were jointly and severally liable for the entire rent, irrespective of the internal allocation of shares. The internal allocation was the foundation of the right of contribution among the lessees themselves; it did not alter the lessor's right to recover the whole from any one.

The Madras High Court in T. Radhakrishna Chettiar v. K.V. Muthukrishnan Chettiar, A.I.R. 1970 Mad. 337, decided a related point: a decree obtained against some only of the joint promisors and remaining unsatisfied is no bar to a second suit against the other joint promisors on the same contract. Joint and several liability cuts both ways — it gives the promisee the choice of whom to sue first and reserves his right to come back for the rest.

The right of contribution — second paragraph of Section 43

The second paragraph of Section 43 is the internal-justice clause. Each joint promisor is bound to contribute equally to the performance of the promise, unless a contrary intention appears from the contract. If one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares. The right to contribution arises only on actual payment — until the joint promisor has discharged the common burden, or made some payment towards it, he has no right to call upon his co-debtors to share. The principle was settled long ago in Abraham Servai v. Raphael Muthurian, I.L.R. 39 Mad. 288.

Three refinements recur in the case law. First, where the joint promisors had originally borrowed unequally, contribution follows the unequal shares, not equal halves. Second, where one of them is unable to pay, the deficit is borne by the rest in proportion to their original shares. Third, contribution is not available between conscious tortfeasors — the maxim ex turpi causa bars relief, as the Allahabad High Court held in Parbhoo Dayal v. Dwarka Prasad, A.I.R. 1932 All. 334. The bar does not apply where the wrong was not knowingly tortious or where the liability was settled by a court decree, after which the matter has passed in rem judicatum.

The right of contribution is independent of the contract between the joint promisors and the promisee. As the Calcutta High Court explained in Narendra Chandra v. Pashupati Nath, A.I.R. 1949 Cal. 242, the implied contract of contribution is between the promisors inter se; the promisee is not a party to it. This is why the promisee cannot, by releasing one promisor, defeat the released promisor's obligation to contribute to the others — the point captured by the second limb of Section 44.

Section 44 — the anomalous Indian rule on release

Under English common law the release of one joint debtor releases all. Section 44 deliberately reverses this. 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 joint promisors; neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors. Two consequences flow: the promisee may release one, and still pursue the others for the whole; and the released promisor remains liable, inter se, to contribute to those who satisfy the debt.

The Kerala High Court in K. Appukuttan Panicker v. S.K.R.A.K.R. Athapa Chettiar, A.I.R. 1966 Ker. 303, applied the rule plainly: the release of one of the joint promisors will not absolve the others. The Lahore High Court had earlier extended the same reasoning to joint judgment-debtors in Daulat Ram v. Punjab National Bank Ltd., A.I.R. 1933 Lah. 505. The Andhra Pradesh High Court in M.G. Brothers Finance Ltd. v. J. Badarinath, 2007 (1) ALD 451, restated the rule and contrasted joint promisors with sureties: discharge of a joint promisor does not free the others, but discharge of the principal debtor or any prejudicial dealing under Section 135 in the guarantee chapter can completely relieve a surety. The two rules pull in opposite directions and the candidate must keep them apart.

Section 45 — devolution of joint rights

The Indian rule on the joint-promisee side recognises survivorship as an incident of the right. When a person has made a promise to two or more persons jointly, and the contract does not show a contrary intention, the right to claim performance rests with all of them during their joint lives, with the representatives of the deceased jointly with the survivor after the death of any one, and with the representatives of all jointly after the death of the last survivor.

Two procedural rules follow. First, all joint promisees must join in suing the promisor — a single joint promisee cannot sue alone for the whole, or even for his share. Second, where one of them refuses to join as a co-plaintiff, the others may implead him as a pro forma defendant. The Supreme Court in Jahar Roy v. Premi Bhimji, A.I.R. 1977 S.C. 2439, fixed the limits: the section does not deal with the case of a joint promisee who does not want to join; the proper course is to array him as a pro forma defendant. The court in Ponnuswami Gounder v. Rama Boyan, A.I.R. 1979 Mad. 130, applied the same logic — a person cannot be prevented from filing a suit merely because he is a joint promisee and the others have refused to join.

The Bombay High Court in Govindlal Bhikhulal Maheshwari v. Firm Thakurdas Bhallabhdas, A.I.R. 1974 Bom. 164, sharpened the doctrine: the rule of survivorship recognised in Section 45 is not the same as the English rule of survivorship in joint estates. Where money is lent by several persons to another, equity treats them prima facie as tenants-in-common — each lent his own money and means to take back his own. Payment by the debtor to one of two joint creditors will not amount to a full discharge of the entire liability unless the parties' agreement so provides. The presumption of tenancy-in-common is rebuttable by the contract or by the surrounding facts.

Order XXX, Rule 4 of the Code of Civil Procedure — the partnership exception

Section 45 has one important statutory exception. Order XXX of the Code of Civil Procedure permits suits by and against firms in the firm name. Rule 4(1) of Order XXX, in express terms, says: "Notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution of or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit."

The Supreme Court in Anokhe Lal v. Radhamohan Bansal, A.I.R. 1997 S.C. 257, explained the history. Before Order XXX Rule 4, courts had divided on whether the legal representatives of a deceased partner were necessary parties to a suit by or against the firm. The Bombay, Madras and Allahabad High Courts had held they were not; the Calcutta High Court had held they were. Rule 4 dilutes the rigour of Section 45 in suits where the firm is the party. The point matters in partnership-recovery suits and in winding-up: the candidate should remember Section 45 as the default, and Order XXX Rule 4 as the firm-suit exception.

Joint promisors and partners

Partners stand in two relations at once. As between themselves and third parties, they are joint promisors under Section 43 — any one may be sued for the whole, with a right of contribution against the rest. As between themselves, however, the relations are governed by the partnership contract and by the Indian Partnership Act, 1932, not by Section 43 alone. The Madras High Court in Chokalingam Chettiar v. Mayappa Chettiar, A.I.R. 1939 Mad. 238, drew the distinction: while the partnership subsists, no separate action for contribution lies; the right is enforceable only as part of a general suit for accounts. After dissolution, the ordinary contribution rule revives.

The Bombay High Court in Govind v. Thakur Gejara Singh, A.I.R. 1921 Nag. 45, identified the special case of a partner who is also a creditor of the firm — he is both a promisee of the firm and one of the joint promisors to himself. Under the second paragraph of Section 43, he may call upon each of the other partners to contribute equally to the payment owed to him. The result looks circular but is the necessary consequence of the dual capacity in which a partner may stand.

Section 38 read with Section 43 — tender to one of several joint promisees

The performance package on the promisor side and the joint-promisee package on the recipient side meet at one point: where the contract was made with several joint promisees, an offer of performance to one of them has the same legal consequences as an offer to all. The Bombay High Court in Guna Krishna Gauns v. Antonio Joao Braganza, 2009 (3) Mh.L.J. 22, applied the rule. The reverse position — what happens when one of several joint promisees gives a discharge or releases the debtor — is more contested. The Madras High Court in Barbar Maran v. Ramana, I.L.R. 20 Mad. 461, took the view that a release by one is good against all; the preponderance of authority in other High Courts treats it as binding only on the releasing promisee, leaving the others' rights intact. The fact-pattern is a perennial favourite of the examiner because the position swings on which High Court's authority the candidate cites.

Co-mortgagors, co-lessors, and co-trustees

Three categories test the boundaries of Sections 43 and 45. Co-mortgagors are joint promisors within Section 43 — Calcutta and Allahabad authority is consistent. The mortgagee may sue any one for the entire mortgage debt; the right of contribution among the mortgagors is governed by the second paragraph of Section 43 read with the relevant provisions of the Transfer of Property Act, 1882. Co-lessors are governed by Section 45 — the Orissa High Court in Anand Prakash Dev v. Lokendranath Maulik, A.I.R. 1972 Orissa 269, held that in the absence of a mutual grant of authority, payment of rent by the tenant to one of two co-lessors does not discharge the tenant's liability to the other co-lessor for his share. Co-trustees stand outside both sections — the Madras High Court in Karandi Manikya Rao v. Nalluri Adenna, (1949) 1 M.L.J. 29, held that Section 45 does not apply to co-trustees because the office of a trustee is collective and indivisible by its very nature.

The candidate should also note the special case of the joint Hindu family. Where the promise is made to the karta as manager, he may sue alone without joining the other coparceners — Section 45 has no application because the karta represents the family. But where the promise is made to two members in their individual capacities, even if they are members of the same joint family, both must join. The line between representational and individual capacity is the line between Section 45 applying and not applying.

Distinctions to keep clean

Joint promisors vs. co-heirs. Section 43 does not apply to persons who become liable jointly only by operation of law — for example, the heirs of a single deceased promisor. Co-heirs are not joint promisors within the meaning of Section 43; they must all be joined in a suit. The Andhra Pradesh High Court in Soorya v. Kateeza Begam, (1957) 1 Andh.W.R. 1, made the point. The exam loves this distinction because the language of "joint liability" can mislead.

Joint promisors vs. principal debtor and surety. The discharge of one joint promisor does not affect the others (Section 44). The discharge of the principal debtor — or any prejudicial dealing by the creditor without the surety's consent — discharges the surety completely. The two regimes look adjacent but have opposite consequences. Section 134 of the Act discharges the surety when the principal debtor is discharged; Section 44 preserves the liability of the other joint promisors when one is released. The candidate must place the facts in the right box.

Joint promisees vs. tenants-in-common. Section 45 lays down the rule for promises made jointly. Where the contract or the surrounding facts show that each promisee was lending or contracting for his own share, equity treats them as tenants-in-common, and payment to one is not a full discharge of the entire liability. The presumption is statutory; the rebuttal is factual.

Joint and several liability vs. several liability simpliciter. Joint and several liability, the Indian rule under Section 43, allows the promisee to sue any one or all. Several liability simpliciter exists where the parties are bound for separate, distinct shares — for example, where the contract expressly provides that each will pay his proportion alone. The presumption under Section 43 is joint and several; an express agreement to the contrary may displace it but the language must be clear, and the parties' actual free consent to the altered arrangement must appear unambiguously.

Exam-angle — what the paper actually asks

Three patterns recur. First, a fact-pattern in which a creditor sues only one of several joint debtors and the defence is non-joinder of co-promisors. The candidate must spot Section 43 and reject the defence — the promisee may pick any one or any combination. Second, a fact-pattern in which the creditor releases one joint promisor for a part-payment and then proceeds against the others. The candidate must spot Section 44 and confirm that the others remain liable, while the released promisor remains liable inter se for contribution. Third, a fact-pattern on the joint-promisee side, in which one of several promisees has died or refuses to join — the candidate must spot Section 45, the rule of survivorship, and the procedural device of impleading the unwilling promisee as a pro forma defendant.

Sub-themes worth flagging: the partnership exception under Order XXX Rule 4 of the Code; the contrast with the surety regime under Sections 134 and 135; the rule against contribution among conscious joint tortfeasors that draws on the wider doctrine of unlawful object; and the Indian departure from the English common law on the effect of release of one joint debtor. The chapter is short. The marks for getting it right are not. Aspirants who memorise the four sections without their procedural overlay leave easy marks on the table; aspirants who read the sections together with Order XXX of the Code and with Sections 134 and 135 of the same Act capture them. Pair this chapter with discharge of contract, where remission and release surface again, and with remedies for breach, where the joint-and-several-liability rule shapes the recovery the plaintiff can obtain.

Frequently asked questions

Can a creditor sue only one of several joint promisors, or must he sue them all?

He may sue any one or any combination of them. Section 43 of the Contract Act provides that 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. The Indian rule is therefore joint and several, not merely joint as in English common law. The Bombay High Court in In re Vallibhai Adamji and the Supreme Court in Rama Shankar Singh v. Shyamlata Devi have applied the rule. Non-joinder of a co-promisor is no defence; an unsatisfied decree against one is no bar to a fresh suit against the others.

Does the release of one joint promisor by the creditor discharge the others?

No, that is the special Indian rule under Section 44 and a deliberate departure from English common law. The release of one joint promisor does not discharge the other joint promisors; the released promisor also remains liable to contribute to the others who pay. The Kerala High Court in K. Appukuttan Panicker v. Athapa Chettiar applied the rule. Note the contrast with the surety regime — discharge of the principal debtor under Section 134, or any prejudicial dealing under Section 135, completely discharges the surety. Joint promisors and sureties are governed by opposite rules; the candidate must place the facts in the right box.

When can a joint promisor claim contribution from the others?

Under the second paragraph of Section 43, every joint promisor may compel every other joint promisor to contribute equally to the performance, unless a contrary intention appears from the contract. The right arises only on actual payment — until the joint promisor has discharged the common burden, or made some payment towards it, there is nothing he can claim contribution for. The Madras High Court in Abraham Servai v. Raphael Muthurian settled the rule. If one of the others is unable to pay, the deficit is borne by the rest in proportion to their original shares. Contribution is not available between conscious joint tortfeasors.

Can one of several joint promisees sue the promisor alone for performance?

No, all joint promisees must join in suing. Section 45 vests the right to claim performance jointly in all the promisees during their joint lives. A single joint promisee cannot sue alone for the whole, or even for his own share. Where one of them refuses to join as a co-plaintiff, the proper course is to implead him as a pro forma defendant — the Supreme Court in Jahar Roy v. Premi Bhimji and the Madras High Court in Ponnuswami Gounder v. Rama Boyan have settled the procedure. The exception is suits in the firm name under Order XXX Rule 4 of the Code of Civil Procedure, where the death of a partner does not require the legal representatives to be joined.

How does Section 45 interact with Order XXX Rule 4 of the Code of Civil Procedure?

Order XXX Rule 4(1) is an express exception to Section 45 in suits by or against partnership firms in the firm name. The rule says that notwithstanding Section 45, where two or more persons may sue or be sued in the name of a firm and any of such persons dies, it shall not be necessary to join the legal representative of the deceased. The Supreme Court in Anokhe Lal v. Radhamohan Bansal explained the history — Rule 4 was inserted to resolve a conflict between the High Courts on whether the representatives of a deceased partner were necessary parties to a firm-suit. Section 45 remains the default; Rule 4 is the firm-suit carve-out.