N.R. Chatterjea, J.
1. This appeal arises oat of an application for execution of a decree. The appellant brought a suit for arrears of rent against six persons who were the tenants and obtained a decree. It appears that three of them had died before the institution of the suit, and when the decree-holder brought the representatives of the deceased judgment-debtors on the record in the proceedings in execution of the decree, they objected to the execution on the ground that the decree was a nullity having been obtained against persons who were dead, and the Court of first instance gave effect to the contention, and the order of that Court was confirmed by the Court of Appeal below. The decree-holder has appealed to this Court, and it is contended on his behalf that although the decree was not binding upon the heirs of the judgment-debtors who were not living at the date of the suit, the liability of the judgment-debtors is joint and several and that the decree-holder is competent to proceed against such of the judgment-debtors as were not dead at the time of the institution of the suit and that as against them the decree was binding.
2. The first question for consideration, therefore, is whether the liability of joint promisors is a joint or a joint and several liability.
3. Now Section 43 of the Contract Act lays down 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. As pointed out in Hemendro Coomar Mullick v. Rajendrolall Moonshee 3 C. 353 : 1 C.L.R. 488 : 2 Ind. Jur. 758 : 1 Ind. Dec. (N.S.) 812 the section 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. It was decided in that case, following the rule laid down in King v. Hoare (1844) 13 M. & W. 494 at. P. 505 : 14 L.J.Ex. 29 : 8 Jur. 1127 : 2 D & L 382 : 67 R.R. 694 : 153 E.R. 206 that a decree obtained against one of several joint promisors is a bar to a subsequent suit against the others. We are not concerned in this case with that question, upon which there is a difference of opinion, But as pointed out by Strachey, C.J. in Muhammad Ashari v. Radha Ram Singh 22 A. 307 : A.W.N. (1900) 73 : 9 Ind. Dec. (N.S.) 1236 the right of joint debtors to have all the co-contractors joined as defendants in any suit to enforce the joint obligation, which in England before the Judicature Acts could be enforced by means of a plea in abatement and since the Judicature Acts by an application for joinder, has been in India expressly excluded by Section 43 of the Contract Act.
4. The next question is whether the liability of joint tenants for rent is a joint and several liability. That question has been considered in several oases in this Court. In Joy Gobinda Laha v. Monmotha Nath Banerji 33 C. 580 a preliminary objection was taken to the hearing of the appeal on the ground that one of the defendants-respondents (in a suit for rent), had died and no substitution of his heirs had been made. The learned Judges (Mitra and Geidt, JJ.) overruled the objection on the ground that the 'liability of the defendants is, however, joint and several, and the death of one of the defendants without his legal representatives being substituted in his place cannot exonerate the other defendants from liability. The appeal abates only so far as the deceased defendant is concerned.' The same principle was followed in Jogendra Nath Roy v. Nagendra Narain Nandi 11 C.W.N. 1026 where a suit for rent was brought and an ex parte decree obtained against all the tenants, which was set aside at the instance of some of the defendants, and the other defendants not having been served with notice of the restoration of the suit, the plaintiff did not proceed against them; it was held by Rampini, A. C.J., and Sharfuddin, J., that 'joint tenants are jointly and severally liable for the rent. To hold that they are only liable each for his own share of the rent would be directly opposed to the policy of the Act as laid down in Section 88 of the Act (Bengal Tenancy Act).' This decision was approved of by D. Chatterjee and Vincent, JJ., in Rameswar Singh v. Jaideb Jha 6 Ind. Cas. 387 : 12 C.L.J. 591. In that case one of the defendants in a suit for rent died before the issue of summons. The fact of the death was brought to the notice of the Court and there was an application to bring in his heirs. No further steps were taken by the Court and a decree was passed against the deceased defendant as if he were living. In the lower Appellate Court the alleged heirs of the deceased were brought in as defendants, and there it was contended that they had been brought in after the expiry of the period allowed by law, that the application for substitution was, therefore, barred by limitation and that the whole suit ought to fail and the contentions were given effect to. On second appeal this Court held that the deceased being only one of several tenants, it was quite competent to the plaintiff to maintain his suit against any number of several joint tenants and that, therefore, the suit against the other defendants was maintainable.
5. In another case, however, in the same Volume Kashi Kinkar Sen v. Satyendra Nath Bhadro 7 Ind. Cas. 840 : 12 C.L.J. 642 at. P. 644 : 15 C.W.N. 191 Mookerjee and Sharfuddin, JJ., were of opinion that the proposition that the landlord may maintain a suit for rent against any number of several joint tenants had been too broadly laid down in Rameswar Singh v. Jaideb Jha 6 Ind. Cas. 387 :12 C.L.J. 591 and that when a landlord creates a tenancy in favour of two persons jointly, whether each is liable for the entire rent depends upon the intention of the parties, and that in order to determine whether the promise is joint and several, it is to be ascertained not only whether several persons have joined in making a promise to the same person, but also whether at the same time each of them has in addition made the same promise separately to the same promisee. In that case, the landlord sued three persons who were the tenants for recovery of rent at the rate of Re. 1-5 annas per year. The defendants pleaded that the rent payable was at the rate of 12 annas 16 gandas only, but the plaintiff having produced a road-cess return filed by the first defendant which supported the rate alleged by the landlord, the Court of first instance gave a decree at that rate as against the 1st defendant for the entire rent and dismissed the suit against the other two. That decree was affirmed on appeal and in second appeal the learned Judges, after stating that the rule that the landlord may maintain a suit for rent against any number of several joint tenants was stated in too comprehensive terms, observed as follows: 'We may add that even if it could be laid down that ordinarily a landlord may make one of several joint tenants responsible for the whole rent, the doctrine would be inapplicable to the present case for two special reasons. In the first place, the landlord has. brought his suit against all three tenants, as against one he has got an admission in favour of the rate of rent asserted by himself, as against the other two, he has no evidence to prove the rate and cannot possibly obtain a decree at a rate higher than the rate admitted by them. Under such circumstances, he cannot obviously be permitted to obtain a decree for the whole rent against the 1st defendant and ask for a dismissal of the suit as against the others, if this decree were maintained in a suit for contribution by the 1st defendant against his co-sharers, the position of the former would be one of considerable embarrassment. The first defendant would be liable to satisfy the claim of the landlord at one rate, and then possibly find himself unable to recover anything from his co-sharers except at a very much smaller rate: this would be clearly unjust. In the second place, the tenancy is admittedly an ancient one, and the tenants in occupation are the representatives of the original tenant. Now, even if it be assumed that one of several joint tenants is liable for the whole rent, it does not follow by any means that when land is lot out by A to B upon the death of B, every one of his heirs is liable for the whole rent. As was pointed out in the case of Ahinsa Bibi v. Abdul Kader Saheb 25 M. 26 at p. 35 the heirs really constitute one body and cannot be treated necessarily as persons who have made joint and several promises.'
6. I think the principle upon which the actual decision in the above case was partly based, viz., that the heirs of the original tenant constitute one body, and that in such a case there is only a joint liability, cannot be disputed. In such a case there is no promise by two or more persons. The contract is with a single person as tenant, and when he dies the liability of his heirs is a joint liability. The principle was followed in Shaik Sahed v. Krishna Mohan Basak 35 Ind. Cas. 563 : 24 C.L.J. 371.
7. In the present case the contract was made with six persons, who were the tenants, and the cases cited above go to show that in such a case there is a joint and several liability.
8. The earlier cases referred to in the judgment in the case of Kashi Kinkar Sen v. Satyendra Nath Bhadro 7 Ind. Cas. 840 : 12 C.L.J. 642 at. P. 644 : 15 C.W.N. 191 are distinguishable. In Roop Narain Singh v. Juggoo Singh 10 W.R. 304 it was no doubt held that a suit for rent due from several ryots on account of a holding which had been let out to them cannot be brought against one of them, but must be brought against all of them. The case, however, was decided before the passing of the Indian Contract Act and Section 43 of that Act, therefore, was inapplicable to that case. In Khetter Mohan Pal v. Pran Kristo Kabiraj 3 C.W.N. 371 the suit for rent was brought against one of the heirs of the original tenant and the question was whether he alone could be made liable for the entire rent. The rent claimed was on account of a permanent tenure and the learned Judges held that there is no law which compels a landlord, in order that he might succeed in a suit for rent, to sue all the heirs of a deceased tenure-holder when he had no notice who the heirs are. As stated above, the liability of the heirs of a tenant is a joint liability and in the case of an occupancy right all the heirs must be sued, and it was because the rent claimed in that case was on account of a permanent tenure (in respect of which the law provides for notice of succession to the landlord) that the learned Judges observed that the defendant being admittedly one of the heirs and in possession of the tenure was liable for the rent and he could not defeat the plaintiffs' suit by showing that there are other heirs equally liable, unless possibly he goes further and shows that their names have been notified as successors of the original holders or that they have been paying the rent and getting receipts as successors. In Ram Taran Chatterjee v. Asmattillah Sheikh 6 C.W.N. 111 one of several joint tenants, who had executed a kabuliyat in favour of the landlord for the entire tenure, was held not to be bound in excess of his share and not liable for the whole rent, but it was proved in that case that the other tenants did not acquiesce in the kabuliyat and in a separate suit by the other tenants against the landlord it was found that they were not bound by the kabuliyat. The case of Ananda Kumar Naskar v. Hari Das Haldar 27 C. 545 : 4 C.W.N. 608 : 14 Ind. Dec. (N.S.) 339 related to the heirs of the original tenant (an occupancy ryot) and as the landlord had sold the holding in execution of a decree obtained against some of the heirs ignoring the plaintiffs who were also heirs and from whom he had accepted rent, it was held that the entire jama did not pass by the sale and the plaintiffs' right was not affected thereby. In Abdul Bab Chowdhury v. Eggar 35 C. 182 : 12 C.W.N. 160 it was held that the landlord cannot succeed in a suit for rent in respect of a patni tenure (which had devolved on two mutwallis) against one of the mutwallis because mutwallis stand in the position of trustees.
9. The actual decision in the case of Kashi Kinkar Sen v. Satyendra Nath Bhadro 7 Ind. Cas. 840 : 12 C.L.J. 642 at. P. 644 : 15 C.W.N. 191 turned upon the grounds stated at page 645* of the report, which I have quoted above. There are, however, the observations made by the learned Judges that where a landlord creates a tenancy in favour * of two persona jointly, whether each is liable for the entire rent depends upon the intention of the parties. In a case where there is a written contract, the question of intention would depend largely upon the terms of the contract. But in the present case it does not appear that there was any written contract and we do not know what were the terms of such contract if there was any. There is, therefore, nothing to show that the parties intended only a joint liability.
10. No argument can be founded on the ground that the landlord chose to sue all the tenants because the landlord had no knowledge that some of the tenants were dead when he instituted a suit. So far as the decree is concerned, there is nothing in the decree to indicate that the nature of the original liability was changed by it. It is unnecessary to state that if the landlord wished to proceed against the holding itself under the provisions of Chapter XIV of the Bengal Tenancy Act, he could not do so unless he obtained a decree against the heirs of the deceased tenants also, but he wants to execute the decree only as a money decree. The present case is covered by the principle of the decisions in the cases of Joy Gobind Laha v. Monmotha Nath Banerji 33 C. 580; Jogendro Nath Roy v. Nagendra Narain Nandi 11 C.W.N. 1026 and Rameswar Singh v. Jaideb Jha 6 Ind.Cas. 387 :12 C.L.J. 591.
11. I accordingly hold that the decree is not a nullity and that the plaintiff is entitled to execute the decree against the judgment debtors who were living at the date of the rent suit and the decree passed in that suit. The case will go back to the Court of first instance for proceedings with the execution against them. The decree, however, will be executed only as a money-decree. We make no order as to costs.
12. I agree that the appeal should succeed. It is clear that the decree cannot be executed as against the representatives of the judgment-debtors named in it who were dead when the suit was instituted, but why should it not be executed as against the judgment-debtors who were alive at the date of the suit or their representatives?
13. In the argument before us the question was raised whether under the original contract between the landlords and their tenants, the liability of the latter was joint or joint and several. The question, I suppose, where there is a written contract, must turn largely on its express terms. But as I understand the matter, the principal difference between a joint liability and a joint and several liability is this. A liability is joint if on the death of one of the joint promisors the liability becomes the liability of the surviving promisors and no liability devolves upon the heirs or legal representatives of the deceased promisor. In Kendall v. Hamilton (1879) 4 A C 504 : 48 L.J.Q.B. 705 : 41 L.T. 418 : 28 W.R. 97 Lord Penzance says at page 526: 'If a man deliver goods or lend money to two partners, the promise which the law implies is a joint promise. The effect of such a promise, as distinguished from a joint and several promise, is that in case of death the debt is enforcible only against the survivor.' It may be said, therefore, that this survivorship is the distinguishing mark of a joint contract. Where there is no survivorship and the liability extends beyond the surviving debtors to the estate of a deceased debtor, the liability is presumably joint and several with the ordinary incidents of such a liability subject possibly, in exceptional cases, to any modification imposed by express agreement.
14. No doubt there may be differences in other respects between a liability which is joint and a liability which is both joint and several. For instance, in England, it is 'the right of persons jointly liable to pay a debt to insist on being sued together' Lord Cairns, L.J., in Kendall v. Hamilton (1879) 4 A C 504 : 48 L.J.Q.B. 705 : 41 L.T. 418 : 28 W.R. 97. In India, however, apart from express agreement, this right has been abrogated by Section 43 of the Contract Act. Nevertheless even in India the doctrine established in England by King v. Hoare (1844) 13 M. & W. 494 at. P. 505 : 14 L.J.Ex. 29 : 8 Jur. 1127 : 2 D & L 382 : 67 R.R. 694 : 153 E.R. 206 may still hold good Hemendro Coomar Mullick v. Rajendrolall Monnshee 3 C. 353 : 1 C.L.R. 488 : 2 Ind. Jur. 758 : 1 Ind. Dec. (N.S.) 812. But such differences as these, whore they exist, are consequences which flow from a liability being joint or which a particular system of law annexe to a joint liability. They are not the essential distinctions between a joint and a joint and several liability.
15. Now it may be the general rule in England that where several persons agree to perform a particular act, they are bound jointly and not severally '(Addison on Contrasts, 11th Edition, page 3 9). But is this general rule applicable in India in the case of co-tenants holding under a common landlord? As between the co-tenants themselves, their interest in the tenancy is presumably not a joint interest but an interest in common. The principle of joint ownership 'appears to be unknown to Hindu Law except in the case of co-parcenary between the members of an undivided family' Jogeswar Narain Deo v. Ram Chandra Butt 23 I.A. 37 at p. 44 : 23 C. 670 : 7 Sar. P.C.J. 13 : 6 M.L.J. 75 : 12 Ind. Dec. (N.S.) 445 (P.C). if the rent is in arrears and the landlord desires to obtain a decree good against the land under the Bengal Tenancy Act, he must ordinarily (apart from any question of representation) implead all the co-tenants including the heirs or legal representatives of a deceased co tenant. In the ordinary case neither side contemplates a survivorship of the liability. As to a money-decree for the rent, good only under the Civil Procedure Code, even if the liability be one which would in England be regarded as joint and not as joint and several, the landlord need not under our law (in the absence of express agreement compelling him to do so) bring all the co-tenants on the record (Contract Act, Section 43). But if he were bound to sue all the persons liable or if he in fact intends to take that course, he would, I imagine, naturally include the representatives of a deceased co tenant. He would not in the ordinary case suppose that his remedy was against the surviving co-tenants and them alone.
16. If then there is no survivorship and if under Section 43 the co-tenants have not the right to insist on being sued together, I should have thought that prima facie the liability was joint and several. This seems to have been the view adopted in Sourendra Mohan Tagore v. Surnomoyi 26 C. 103 : 3 C.W.N. 38 : 13 Ind. Dec. (N.S.) 670; Joy Gobind Laha v. Monmotha Nath Banerji 33 C. 580; Jogendra Nath Roy v. Nagendra Narain Nandi 11 C.W.N. 1026 and Rameswar Singh v. Jaideb Jha 6 Ind. Cas. 387 :12 C.L.J. 591. It may he that in Kashi Kinker Sen v. Satyendra Nath Bhadro 7 Ind. Cas. 840 : 12 C.L.J. 642 at. P. 644 : 15 C.W.N. 191 Sir Asutosh Mookerjee, J. expressed a somewhat different view, but in that case the question was as to the liability to the landlord of the representatives of the original tenants. A similar question was considered in Shaik Sahed v. Krishna Mohan Basak 35 Ind. Cas. 563 : 24 C.L.J. 371. The question was decided in both oases on the footing that different considerations arose where the defendants were the representatives of a single tenant and not the co-tenants who had themselves contracted with the landlord. For the present purpose, therefore, it is not necessary to consider the result which was arrived at in those two cases and as to that I express no opinion.
17. I have made these observations because it was urged on behalf of the respondents in support of the order made below that as the original liability of the co-tenants was a joint liability and as the appellants chose to sue all the co-tenants, therefore, the decree could only be executed if it was a good and valid decree as against all the co tenants. The precise terms of the agreement between the parties are not before us. I do not even know whether the agreement was embodied in a written lease.
18. The answer, in my opinion, to the first part of the argument, is that presumably the liability of the co tenants was joint and several and it is neither found nor shown to be merely joint.
19. But even if it was a joint liability, I do not follow the second part of the argument. It was put on the ground of election. But the question raised has to do with the legal rights of the parties and has nothing to do with election. Reference may be. made to the head-note of the case already so often cited Kundall v. Hamilton (1879) 4 A.C. 504 : 48 L.J.Q.B. 705 : 41 L.T. 418 : 28 W.R. 97 and to the observations of Lord Blackburn at page 542.
20. Even if anything turned on election, there is nothing to show and it is not found--that the appellants knew that some of the persons whom they joined as defendants in their plaint were already dead. It certainly cannot be supposed that they intended or elected to join the dead with the living.
21. As to the legal rights of the parties, even if the contract was joint, it is not shown that there was any express agreement which obliged the landlord to bring all the tenants on the record. It was open to the landlords, therefore, under Section 43 of the Contract Act to bring their suit against one or more of the tenants, and there is nothing in the law which prevents the suit from being a good suit as against the tenants who were alive at its institution.
22. In my opinion, in the absence of anything to show the contrary, the tenants were jointly and severally liable to the landlords but in any view of the matter the decree is as against those tenants who were alive when the suit was instituted a good and valid decree capable of execution against them or their present representatives.
23. I concur in the order proposed.