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Muhammad Askari Vs. Radhe Ram Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad High Court
Decided On
Judge
Reported in(1900)ILR22All307
AppellantMuhammad Askari
RespondentRadhe Ram Singh and ors.
Excerpt:
act no. ix of 1872 (indian contract act), section 43 - joint contract--right of promisee to sue any or all of the joint promisors--right of joint promisors to be joined as defendants--decree against some only of several joint promisors--effects of such decree--civil procedure code, section 29--hindu law--joint hindu family--position of managing member--suit against managing member--subsequent suit against other members. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment.....arthur strachey, c.j.1. this appeal raises an important question, never yet decided, whether the doctrine of king v. hoare (1844) 13 m. and w. 494, and kendall v. hamilton (1879) l.r. 4 a.c. 504, as to the effect of a judgment on a joint contract upon a subsequent suit against co-contractors who were not parties to the former suit, should be applied in these provinces, notwithstanding section 43 of the indian contract act, 1872.2. the suit was a suit for sale on four mortgages executed in 1886,1888, 1889 and 1890, and was brought against seventeen persons who are admittedly members of a joint hindufamily. in the plaint the plaintiff alleges that the defendants nos. 16 and 17, budh ram singh and mahabir singh, who are pro forma defendants only, were the managers of the joint family.....
Judgment:

Arthur Strachey, C.J.

1. This appeal raises an important question, never yet decided, whether the doctrine of King v. Hoare (1844) 13 M. and W. 494, and Kendall v. Hamilton (1879) L.R. 4 A.C. 504, as to the effect of a judgment on a joint contract upon a subsequent suit against co-contractors who were not parties to the former suit, should be applied in these Provinces, notwithstanding Section 43 of the Indian Contract Act, 1872.

2. The suit was a suit for sale on four mortgages executed in 1886,1888, 1889 and 1890, and was brought against seventeen persons who are admittedly members of a joint Hindufamily. In the plaint the plaintiff alleges that the defendants Nos. 16 and 17, Budh Ram Singh and Mahabir Singh, who are pro forma defendants only, were the managers of the joint family carrying on its business, and that as such managers and for the purpose of meeting necessary family expenses, these defendants borrowed money from the plaintiff's father and the plaintiff himself on the security of the mortgages in suit, which are mortgages of shares in zemindari property owned and possessed by the joint family. On these mortgages, which were executed by the defendants Nos. 16 and 17 in their own names, the plaintiff formerly sued those defendants only, and obtained a decree for sale for Rs. 12,857-1-3, which became final on the 5th May 1894. In execution of the decree the mortgaged property was advertised for sale. Thereupon the defendants Nos. 1 to 15 brought a suit against the decree-holder for a declaration that, as they had not been made parties to the first suit, as they should have been with reference to Section 85 of the Transfer of Property Act, 1882, they were not affected by the decree, and their interests in the family property could not be sold in execution of it. The Court trying that suit gave the declaration prayed for, on the authority of the decision of the Full Bench in Bhawani Prasad v. Kallu (1895) I.L.R. 17 All. 537. Thereupon the plaintiff brought the present suit, claiming enforcement of the mortgages against the defendants Nos. 1 to 15 by sale of their interests. According to the pedigree annexed to the plaint, these defendants are brothers, brother's sons and cousins of Budh Ram Singh and Mahabir Singh. In defence the defendants raised various pleas, in which they denied that Budh Ram Singh and Mahabir Singh were managers of the joint family and that the loans were taken for purposes binding on the family, and other contentions to which it is unnecessary to refer. The Court below has dismissed the suit on a preliminary point of law. It has held in effect that by the decree of the 5th May 1894, against two only of the persons alleged to be jointly liable under the mortgages, the whole cause of action in the case of each mortgage was merged and could not be made the subject of a fresh suit against joint debtors not parties to the suit in which the decree was passed. The Subordinate Judge in his judgment says that he therefore dismisses the suit as barred by Section 43 of the Code of Civil Procedure. The reference to that Section is an obvious mistake, as Section 43 of the Code applies only where the former suit was between the same parties or between parties under whom the parties to the subsequent suit claim. Balmakund v. Sangari (1897) I.L.R. 19 All. 379. I think, however, that the reference to Section 43 of the Code is a mere slip, as the judgment is expressly based on the decision in Nuthoo Lall Chowdhry v. Shoukee Lall (1872) 10 B.L.R. 200 : S.C. 18 W.R. 458, which proceeded, not on the principle of splitting claims now embodied in Section 43 of the Code, but on the principle of King v. Hoare (1844) 13 M. & W. 494. The question is whether, having regard to that principle and to the provisions of Section 43 of the Contract Act, the principle is applicable to cases of joint liability in this country.

3. The case of Nuthoo Lall Chowdhry v. Shoukee hall (1872) 10 B.L.R. 200 :S.C. 18 W.R. 458, was decided before the Contract Act came into force. Since then it has been held that, notwithstanding Section 43 of the Contract Act, the doctrine of King v. Hoare (1844) 13 M. & W. 494, should be applied to cases arising in the Presidency towns: Hemendro Coomar Mullick v. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353; Gurusami Chetti v. Samurti Chinna Mannar Chetti (1881) I.L.R. 5 Mad. 37; Lakmidas Khimji v. Purshotam Haridas (1882) I.L.R. 6 Bom. 700,and Bahmubhoy Hubibbhoy v. Turner (1890) I.L.R. 14 Bom. 408, which, however, related not to joint contractors but to joint wrong-doers, to whom of course Section 43 has no application. In Hemendra Coomar Mullick v. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353, Mr. Justice Markby's judgment appears to have proceeded partly on the fact that the case was one arising in the High Court's original jurisdiction and was governed by English law. In the other High Courts it has often been assumed, though never formally decided after argument, that the doctrine of King v. Hoare (1844) 13 M. & W. 494, would also be applicable in the Mufassil: Chockalinga Mudali v. Subbaraya Mudali (1882) I.L.R. 5 Mad. 133 at p. 135; Narayana Chetti v. Lakshmana Chetti (1897) I.L.R. 21 Mad. 256; Sitanath Koer v. Land Mortgage Bank of India (1883) I.L.R. 91 Cal. 888; Nobin Chandra Roy v. Magantara Dansya (1884) I.L.R. 10 Cal. 924; Roy Lutchmiput Singh Bahadur v. The Land Mortgage Bank of India (1886) I.L.R. 14 Cal. 469, note; Radha Pershad Singh Bahadur v. Ramkhelawan Singh (1895) I.L.R. 23 Cal. 302, Bhukhandas Vijbhukandas v. Lallubhai Kashidas (1892) I.L.R. 17 Bom. 562, and Laksmishankar Devshankar v. Vishnuram (1899) I.L.R. 24 Bom. 77, several of these relate to suits against joint mortgagors. In this Court the question does not appear to have been raised except in Dharam Singh v. Angan Lal (1899) I.L.R. 21 All. 301, where, however, it was not decided, as it was held that the liability there under consideration was not a joint liability. In two at least of the above cases much doubt has been expressed as to whether it is desirable to extend the doctrine of King v. Hoare (1844) 13 M. and W. 494, to India, at all events to cases in the Mufassil. Such doubts were expressed by Mr. Justice Markby in Hemendro Coomar Mullick v. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353, where, however, the learned Judge was clearly mistaken in saying that the doctrine has been repudiated in America. See Bigelow on the Law of Estoppel, 4th edition, pp. 104 to 110, and Vanfleet on the Law of Former Adjudication, pp. 1061 to 1063, and also by Mr. Justice Muttusami Ayyar in Gurusami Chetti v. Samurti Chinna Mannar Chetti (1881) I.L.R. 5 Mad. 37. The conclusion at which I have arrived is that the doctrine of King v. Hoare (1844) 13 M. and W. 494, is not applicable in India, at all events in the Mufassil, and since the passing of the Indian Contract Act. This conclusion, however, is not based on any view of the doctrine as a merely technical one, or as being inexpedient or unjust. That is a question on which many learned Judges have expressed conflicting opinions, and with which we as Judges are not particularly concerned. It was expressly held by the majority of the Law Lords in Kendall v. Hamilton (1879) L.R. 4 A.C. 504, and by Lord Justice Bowen in In re Hodgson (1885) L.R. 31 Ch. D. 177 at p. 188, that the rule was not a merely technical one, but was based on considerations of public policy relating to the protection of joint debtors. So far as general expediency or public policy is concerned, considerations of the importance, on the one hand, of checking undue multiplicity of suits, and, on the other hand, of compelling people to pay their debts, are, in India at least, fairly evenly balanced. My objections to the application of the doctrine are based on purely legal grounds. The doctrine now rests not so much on King v. Hoare (1844) 13 M. and W. 494, as on the judgment of the Law Lords in Kendall v. Hamilton (1879) L.R. 4 A.C. 504. As explained in those judgments, the doctrine that there is in the case of a joint contract a single cause of action which can only be once sued on is essentially based on the right of joint debtors in England to have all their co-contractors joined as defendants in any suit to enforce the joint obligation. That right was in England enforceable before the Judicature Acts by means of a plea in abatement, and since the Judicature Acts by an application for joinder which is determined on the same principles as those on which the plea in abatement would formerly have been dealt with. In India that right of joint debtors has been expressly excluded by Section 43 of the Contract Act, and therefore the basis of the doctrine being absent, the doctrine itself is inapplicable. Cassante ratione legis, cessat ipsa lex.

4. That this right of joinder is the real basis of the doctrine appears from King v. Hoare (1844) 13 M. and W. 494, itself, though not nearly so clearly as from Kendall v. Hamilton (1879) L.R. 4 A.C. 504, and other later cases. It appears with special distinctness from the judgment of Lord Cairns, L.C., at pp. 515 and 516, of Lord Hatherley at p. 522, and of Lord Blackburn at pp. 542--544. It is equally implied by the dissentient judgment of Lord Penzance. The main difference of opinion was that in the view of Lord Penzance the joint contractor had, by the abolition of pleas in abatement by the Judicature Acts, lost his absolute right to be sued only in conjunction with his co-contractor. 'He can no longer be heard to maintain either that his co-contractor must be sued with him or that, it being impossible so to sue him by reason of his having been sued already, he is himself discharged. * * * * Since the Judicature Acts it is not true that the plaintiff's only right is to sue the defendant jointly with the others.' The other Lords, while agreeing that the doctrine of merger depended on the right of the joint contractor to have his co-contractor joined as defendants, held that, notwithstanding the Judicature Acts, the right still remained, though the mode of enforcing it was no longer a plea of abatement, but an application to have the person omitted included as a defendant. As to the basis of the doctrine of merger, therefore, there was no difference of opinion. The best statement of the effect of Kendall v. Hamilton (1879) L.R. 4 A.C. 504, is, I think, that of Lord Justice Bowen In re Hodgson (1885) L.R. 31 Ch. D. 177 at p. 188 of the report. 'The common law principle that a judgment recovered against a joint debtor is a bar to a further action to be prosecuted against another joint debtor is explained at length in the case of King v. Hoare (1844) 13 M. and W. 494. There is in the cases of joint contract and joint debt as distinguished from the cases of joint and several contract and joint and several debt, only one cause of action. The party injured may sue at law all the joint contractors, or he may sue one, subject in the latter case to the right of the single defendant to plead in abatement; but whether an action in the case of a joint debt is brought against one debtor or against all the debtors, it is for the same cause of action--there is only one cause of action. This rule, though the advantage or disadvantage of it may have been questioned in times long past, has now passed into the law of this country. I should only wish to observe that whether or no the rule by the light of pure reason and unassisted by authority might or might not have recommended itself to modern minds, the rule is by no means a technical rule. It is based, rightly or wrongly, on the idea that a joint debtor has a right to demand, if he pleases, that he shall be sued at one and the same time with all his co-debtors. To enforce this right he is only entitled to plead in abatement, but the right is one of considerable business value, and is so recognized by the law. In order to protect each of the joint debtors the law treats the cause of action as being a joint one, and as capable of being merged whenever it is pursued to a judgment. It is absorbed and merged in the judgment which is recovered against one of the debtors, not only as against him but as against all the rest, and the object is to prevent the prejudice which the law conceives might arise to a joint debtor who is not being sued, if he were left with future litigation still hanging over his head. All his liability is merged therefore in the judgment, the old debt disappears and the judgment is left in its place. That is the legal view which has been laid in King v. Hoare (1844) 13 M. and W. 494, and that was the real ground of the decision in Kendall v. Hamilton (1879) L.R. 4 A.C. 504.' Again in Hammond v. Schofield (1891) 1 Q.B. 453 at p. 457, Vaughan Williams, J., said: 'It seems also to be well settled by a series of cases, beginning with Rice v. Shute and ending with Kendall v. Hamilton, that the basis of this defence is not the election or unconscious election, if there can be such a thing, of the plaintiff, but the right of the co-contractor when sued in a second action on the same contract to insist, though not a party to the first action, on the rule that there shall not be more than one judgment on one entire contract. These decisions seem to be the logical result of the rule of pleading that non-joinder of defendants is not matter which can be pleaded in bar, but only matter which can be pleaded in abatement.'

5. The authorities also show that where the obligation is not joint but joint and several the doctrine of merger does not apply, and a judgment against one of the debtors without satisfaction is not a bar to a suit against the others. See King v. Hoare (1844) 13 M. and W. 494, and the cases cited in Leake on Contracts, p. 808, Bullen and Leake, p. 751, and Dhunput Singh v. Sham Soonder Mitter (1879) I.L.R. 5 Cal. 291. In Kendall v. Hamilton (1879) L.R. 4 A.C. 504, the appellant unsuccessfully contended that as the debt sued on was a partnership debt, the doctrine of King v. Hoare (1844) 13 M. and W. 494, did not apply, as in equity all partnership debts were joint and several. Under Order 16, Rule 6 of the Rules under the Judicature Act, which is identical with Section 29 of the Code of Civil Procedure, the plaintiff may at his option join as parties to the same suit all or any of the persons severally or jointly and severally liable on any one contract.

6. The result, is, first, that the doctrine of King v. Hoare (1844) 13 M. and W. 494, and Kendall v. Hamilton (1879) L.R. 4 A.C. 504, depends on the ordinary right possessed by a joint contractor in England to have all the co-contractors joined as defendants in a suit on the joint obligation; secondly, that the rule is not applicable where the liability sought to be enforced is joint and several. That being so, how does the matter stand in India? Section 43 of the Contract Act provides: '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.' Illustration (a) is as follows: 'A, B and C jointly promise to pay D Rs. 3,000. D may compel either A or B or C to pay him Rs. 3,000.' This is a clear departure from the English law, and in my opinion excludes the right of a joint contractor to be sued along with his co-contractors. That this is the effect of Section 43 is clearly recognised by several decisions: what they do not recognise is that it cuts away the foundation of the English doctrine and makes it inapplicable to India. The explanation of this is, I think, that the cases all follow Hemendro Coomar Mullick v. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353, which was decided before the House of Lords in Kendall v. Hamilton (1879) I.L.R. 4 A.C. 504, showed more distinctly than King v. Hoare (1844) 13 M. and W. 494, that the right of joinder is the real foundation of the English rule. In Hemendro Coomar Mulliek v. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353, the judgment of Mr. Justice Kennedy in the first Court was based in part on the doctrine of election, which the mojority of the House of Lords showed was in no sense the reason of the rule. Garth, C.J., correctly stated the effect of Section 43 to be that it 'allows the promisee to sue one or more of several promisors in one suit, and so practically prohibits a defendant in such a suit from objecting that his co-contractors ought to have been sued with him.' If the learned Chief Justice had had before him the later judgments in Kendall v. Hamilton (1879) L.R. 4 A.C. 504, and In re Hodgson (1885) I.L.R. 31 Ch. D. 177, he would, I think, have recognised that the effect of such a prohibition is to make the doctrine of King v. Hoare (1844) 13 M. and W. 494, inapplicable. In the mistake which he made he was followed by Mr. Justice Muttusami Ayyar in Gurusami Chetti v. Samurti Chinna Mannar Chetti (1881) I.L.R. 5 Mad. 37. Similarly in Lukmidas Khimji v. Purshotan Haridas (1882) I.L.R. 6 Bom. 700, Mr. Justice Latham expressly held that Section 43 of the Contract Act materially altered the rules of the English common law, and disallowed an objection by a partner defendant that the other partners should have been joined as defendants; and yet, while thus clearly recognising that by reason of Section 43 a joint debtor has no right to have his co-contractors joined as defendants, the learned Judge nevertheless held that the rule in Kendall v. Hamilton (1879) L.R. 4 A.C. 504, would bar a fresh suit against the other partners. In Motilal Bechardas v. Ghellabhai Hariram (1892) I.L.R. 17 Bom. 6 Mr. Justice Farran held in reference to Section 43 that 'as far as the liability under a contract is concerned, it appears to make all joint contracts joint and several.' If that is a correct view of Section 43, the doctrine of King v. Hoare, (1844) 13 M. and W., 494, is admittedly not applicable. In Narayana Chetti v. Lakshmana Chetti (1897) I.L.R. 21 Mad. 256, the Court, following Lakmidas Khimji v. Purshotam Haridas (1882) I.L.R. 6 Bom. 700, held that 'it is not incumbent on a person dealing with partners to make them all defendants: he is at liberty to sue any one partner as he may choose.' The Court expressly applied to partners not only Section 43 of the Contract Act, but Section 29 of the Code of Civil Procedure, which relates not to joint but to several and to joint and several liability. In Rahmubhoy Hubibbhoy v. Turner (1890) I.L.R. 14 Bom. 408, Scott, J., in the first Court said that 'Section 43 of the Contract Act IX of 1872 is not perhaps quite clear whether a complete adoption of the English rule is intended.' He, however, applied the decision in Hemendro Coomar Mullick v. Bajendrolall Moonshee (1878) I.L.R. 3 Cal. 353, to the case, which was one of joint wrong-doers. Whether the rule as to joint wrong-doers laid down in Brinsmead v. Harrison (1872) L.R. 7 C.P. 547, should be applied in the Indian Mufassil is a question which I need not consider. To such a question Section 43 of the Contract Act would have no application.

7. In the other cases the effect of Section 43 of the Contract Act on the doctrine of King v. Hoare (1844) 13 M. and W. 494, is altogether ignored. In their note to Section 43, Messrs. Cunningham and Shephard, at pp. 158-159 of their commentary on the Indian Contract Act (7th ed.) say that 'if this Section is intended to deny to joint debtors the right to be sued jointly in one suit, it involves a departure from English law,' and that 'in view of this Section and the 29th Section of the Code of Civil Procedure it is clear that the non-joinder of a co-debtor is no ground of defence to a suit; but it is apprehended that an application made under the 32nd Section of the Code to add as a defendant an omitted co-debtor would be dealt with in the same manner as it is in England.' I cannot agree with this view. As the judgments in Kendall v. Hamilton (1879) L.R. 4 A.C. 504, show, such an application would in England be dealt with in the same manner as the old plea in abatement, and the effect of the latest decisions is that a joint debtor, though he has not an absolute, has an ordinary and a prima facie right to have his co-debtors joined. Wilson, Sons & Co. v. Balcarres Brook Steamship Co. (1893) 1 Q.B. 422, Robinson v. Geisel (1894) 2 Q.B. 685. I agree with Garth, C.J., Latham, J., and the Madras High Court that under Section 43 of the Contract Act the joint debtor has no such right.

8. For these reasons I am of opinion that the doctrine of King v. Hoare (1844) 13 M. and W. 494, and Kendall v. Hamilton (1879) L.R. 4 A.C. 504, does not apply to the present case; that the cause of action against the defendants Nos. 1 to 15 on the mortgages in suit was not merged in the decree of the 5th May 1894, against the defendants Nos. 16 and 17 only; and that so far the suit against them is therefore not barred. Nor is it in my opinion barred by Section 85 of the Transfer of Property Act, 1882: Balmakund v. Sangari (1897) I.L.R. 19 All. 379; Dharam Singh v. Angan Lal (1899) I.L.R. 21 All. 301. It was suggested that the suit was barred on a somewhat different ground, namely that the defendants Nos. 16 and 17 where in the position of agents of the joint family, contracting in their own names for themselves and the rest of the family, and that the decree of the 5th May 1894 against them was a bar to a subsequent suit on the contract against their principals, the other defendants, by reason of the principle laid down in Priestley v. Fernie (1865) 3 H. and C. 977, applied by Lord Caiens in Kendall v. Hamilton (1879) L.R. 4 A.C. 504, at p. 514 of the report, and followed by this Court in Bir Bahaddar Sewak Pande v. Sarju Prasad (1887) I.L.R. 9 All. 681. In India the matter depends on the provisions of the Contract Act, and in particular on Chapter X of that Act relating to Agency. It is sufficient to say that it has never been held that the managing member of a joint Hindu family is an agent within the meaning of that chapter and of the rule in Priestley v. Fernie (1865) 3 H. and C. 977. I agree with the passage at p. 108 of the Tagore Law Lectures for 1870 where Mr. Cowell says: 'When therefore we come to define the relation of each member, especially of the managing member, to the joint family and the joint estate, we are brought into contact with a relationship which has no counterpart in English law. Neither the term partner, nor principal, nor agent, nor even co-parcener will strictly apply.'

9. I am of opinion that the Court below ought not to have dismissed the suit, as it did, on the preliminary point, and that the appeal of the plaintiff should be allowed, the decree of the Court below set aside, and the case remanded to that Court under Section 562 of the Code of Civil Procedure for disposal on the merits. The appellant will have his costs of this appeal. Other costs will abide the result.

Banerji, J.

10. I agree in the judgment and order of the learned Chief Justice.

11. The Court below has held that the 43rd Section of the Code of Civil Procedure bars the claim. That view is dearly erroneous. As the defendants Nos. 1 to 15, who are the real defendants to the suit and against whom alone the plaintiff seeks relief, were not parties to the former suit brought against the defendants Nos. 16 and 17, that Section has no application, Although the learned Subordinate Judge refers to Section 43, the basis of his decision is, as pointed out by the learned Chief Justice, that the cause of action for the present suit is the same as that for the previous suit; that both the suits relate to a joint debt; that the cause of action has merged in the decree obtained in the former suit; and that the present action is consequently not maintainable. Ha has followed the ruling in Nuthoolall Chowdhry v. Shoukee Lal (1872) 10 B.L.R. 200 : S.C. 18 W.R. 458, which apparently adopted the principle recognised in the well-known case of King v. Hoare (1844) 13 M. and W. 494. The main question which we have to determine in this appeal, therefore, is whether the former judgment, though unsatisfied, bars this suit. That question was not decided in Dharam Singh v. Angan Lal (1899) I.L.R. 21 All. 301, on which the learned Counsel for the appellant relied. It was held in that case that it was not a case of a joint debt and joint contractors.

12. The judgment in the former suit would operate as a bar to the present claim if two conditions are fulfilled, namely, first, that the contracts of mortgage upon which the plaintiff's claim is founded were joint contracts by and on behalf of all the defendants; and, second, that the rule laid down in King v. Hoare (1844) 13 M. and W. 494, is applicable. As to the first point there is no controversy. As to second, if the doctrine of King v. Hoare (1844) 13 M. and W. 494, cannot be held to apply, there is nothing in reason or justice to bar the suit.

13. If the plaintiff's statements are true the defendants Nos. 1 to 15 and their interest in the mortgaged property are equally with the defendants Nos. 16 and 17 and their interest liable for the debt, and unless a legal bar exists, of which the defendants are entitled to take advantage, they are not in a position to dispute the claim.

14. Now, is the rule adopted in King v. Hoare (1844) 13 M. and W. 494, applicable to this case? The reason for that rule was stated by Lord CAIRNS, L. C, in the later case of Kendall v. Hamilton (1879) L.R. 4 A.C. 504, to be 'that it is the right of persons jointly liable to pay a debt to insist on being sued together.' I agree with the learned Chief Justice that that reason cannot apply to cases in this country, at least outside the presidency towns, since the passing of the Contract Act. Section 43 of that Act enables a promisee, in the absence of a contract to the contrary, to compel one or more of several joint promisors to perform the whole of the promise. Under Section 43 therefore, it is not open to a defendant who has been sued as one of the several promisors to contend that all his co-promisors should be made parties to the suit, and so far as this country is concerned the reason on which the rule in King v. Hoare (1844) 13 M. and W. 494, is founded has ceased to exist. That rule is consequently no longer applicable. Further, the effect of Section 43 is, as observed by Farran, J., in Motilal Beehardass v. Ghellabhai Hariram (1892) I.L.R. 1 Bom. 6, 'to make all joint contrasts joint and several.' Where the liability is joint and several and the judgment first obtained has remained unsatisfied a second suit is not barred. This is a proposition which admits of no doubt and is supported by the authorities cited by the learned Chief Justice in his judgment. Therefore, since the enactment of Section 43 of the Contract Act, the recovery of a judgment against one of several joint debtors does not bar a subsequent suit against his co-debtors. The result is that in either view the present claim is maintainable. I am moreover not satisfied as to the expediency of extending the doctrine of King v. Hoare (1844) 13 M. and W. 494, and Kendall v. Hamilton (1879) L.R. 4 A.C. 504, to suits arising in these provinces. Having regard to the fact that those cases were based mainly on doctrines and rules of procedure peculiar to English law, there is evidently no reason why their authority sould be recognised in the Courts in this country. The desirability of applying to cases in this country the rule laid down in those decisions was questioned by Mr. Justice Markby in Hemendro Coomar Mullick v. Rajendrolall Moonshee (1878) I.L.R. 3 Cal. 353, and by Mr. Justice Muttusami Ayyar in Gurusami Chetti v. Samurti Chinna Mannar Chetti (1881) I.L.R. 5 Mad. 37, and those learned Judges were of opinion that the rule might be productive of hardship in this country, as it undoubtedly would be in many cases. It was pointed out by Mr. Justice MARKBY that the rule was not recognised in any continental country in Europe, and in his dissentient judgment in Kendall v. Hamilton (1879) L.R. 4 A.C. 504. Lord Penzance considered it not to be consistent with justice. 'What justice,' his Lordship observed, 'is there in saying that when three persons are all and each individually liable to pay a debt, an action and judgment (still unsatisfied) 'against two of them should extinguish the liability of the third?' He held the rule to be one of procedure, and characterized it as one 'which, without affecting to assert any joint rights on the defendants, denies the aid of the law to enforce those of the plaintiffs.' 'Procedure,' he said, 'is but the machinery of the law after all--the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when in place of facilitating, it is permitted to obstruct, and even extinguish legal rights, and is thus made to govern where it ought to subserve.' Having regard to the fact that even in England the propriety of the rule has been questioned by high authority, I do not think there is sufficient justification for extending it to the Court in these provinces. Upon grounds both of law and expediency, therefore, I am unable to hold that the plaintiff is precluded from maintaining the present suit by reason of the decree obtained by him in 1894.

15. I fully concur with the learned Chief Justice in the view that the manager of a joint Hindu family is not in the position of an ordinary agent as regards the other members of the family. The contention of the learned Counsel for the respondents, based on the argument that the defendants Nos. 16 and 17 were agents of the other defendants, cannot therefore prevail.


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