A PROJECT REPORT ON

Devolution of Joint Liability

Date of Submission: 15/11/2019

I, Anant Ekka, hereby declare that, the project work entitled, “Devolution of
joint liability” submitted to Ms. Navita Aggrawal, Faculty, H.N.L.U., Raipur is
record of an original work done by me under the guidance of Ms. Navita
Aggrawal, Faculty, Law of Contract H.N.L.U, Raipur.

Anant Ekka

Semester I

Roll No. 26

Section A

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 Acknowledgements

First & foremost, I take this opportunity to thank Ms. Navita Aggrawal, Faculty, Law of
Contract-I , HNLU for allotting me this topic to work on. She has been very kind in providing
inputs for this work, by way of suggestions and by giving his very precious time for some
discussion. Hence I would like to thank her for all her cooperation and support.

Last but not the least; I would like to thank my friends for having a wonderful debate and
discussion, and hence creating a knowledge base for various aspects of this society as well as
our education.

Anant Ekka

Roll No.-26, Sec-A

Semester- I

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 Table of Contents
Introduction 01

Devolution of liabilities 01

1. Devolution of joint liabilities

2. Any one of joint promisors may be compelled to perform

3. Effect of release of one joint promisor

4. Devolution of joint rights

Conclusion 06

Bibliography 07

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Objectives:

The objective of the project is to understand the devolution of liabilities.

Methodology:
This projects work is based on the descriptive approach. It is based on secondary sources, i.e.,
books and electronic sources (internet).

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 Introduction
Joint liability, several liability and joint and several liability are concepts that are all used by
courts in cases where there are more than two parties to a contract. These concepts essentially
establish who is responsible for what act or omission, or as in case of joint liability all
promisors, will be held liable together.

If parties have joint liability, then they are each liable up to the full amount of the relevant
obligation. If one party dies, disappears or is declared bankrupt, the other remains fully liable

The converse is several liability, and it arises when two or more persons make separate
promises to another, under a single or different instrument.

Joint and several liability is “liability that may be apportioned either among two or more
parties or to only a few select members of the group at the adversaries discretion. Thus each
liable party is individually responsible for the entire obligation. In this two or more persons in
the same instrument, promise jointly to do the same thing, and also make separate promises
to do the same thing. It gives rise to one joint obligation and as many several obligations as
there are joint and several promisors. As in joint liability the performance by one discharges
all.

Devolution of liabilities

1. Section 42 of the Indian Contract Act, 1872 states that:

“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 of
them, his representative jointly with the survivor or survivors, and, after the death of the last
survivor, the representatives of all jointly, must fulfill the promise.”

According to this section joint promisors must during their joint lives fulfill the promise and
if any of them dies, his representatives must jointly with the surviving promisors fulfill the
promise and so on. On the death of the last survivor the representatives of all of them must
fulfill the promise, but this is subject to any private arrangement between different parties.
They may expressly or impliedly prescribe a different rule. \

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2. Section 43 of the Indian Contract Act, 1872 states that:

“Anyone of joint promisors may be compelled to perform – when two or more persons make
a joint promise, the promise may, in the absence of express agreement to the contrary, compel
any such of such joint promisors to perform the whole promise.

Each promise may compel contribution – Each of two or more joint promisors may compel
every other joint promisor to contribute equally with himself to the performance of the
promise, unless a contrary intention appears from the contract.

Sharing of loss by default in contribution – If any one of the 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.”

Section 43 entitles the promise to claim performance from anyone or more of the promisors.
It also provides for a right of one or more promisors to compel contribution from the others,
and the sharing loss in the event of default in contribution. These provisions though can be
altered by providing the contrary in the contract.

In Jai Kishen Das v Ariya Priti Sabha1 it has been held that If one of the joint promisors dies
pending suit, the suit can be proceeded against the other defendant promisors without
bringing his legal representatives on record.

Illustrations:

(a) A, B and C jointly promise to pay D 3000 rupees. D may compel either A or B or c to
pay him 3000 rupees.

(b) A, B and C jointly promise to pay D the sum of 3000 rupees. C is compelled to pay
the whole. A is insolvent, but his assets are sufficient to pay one-half of his debts. C is
entitled to receive 500 rupees from A's estate, and 1250 rupees from B.

(c) A, B and C are under a joint promise to pay D 3000 rupees. C is unable to pay
anything and A is compelled to pay the whole. A is entitled to receive 1500 rupees
from B.

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AIR 1921 Lah 357
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 (d) A, B and C are under a joint promise to pay D 3000 rupees. A and B being only
sureties for C. C fails to pay. A and B are compelled to pay the whole sum. They are
entitled to recover it from C.

This section lays down three rules:

i. Any one compellable to perform- Firstly, when a joint promise is made, and there is
no express agreement to the contrary, the promisee may compel any one or more of
the joint promisors to perform the whole of the promise. A, B and C jointly promise to
pay D 3000 rupees. D may compel either A or B or C to pay him 3000 rupees.

ii. Right of Contribution- Secondly, a joint promisor who has been compelled to perform
the whole of the promise, may require the other joint promisors to make an equal
contribution to the performance of the promise, unless a different intention appears
from the agreement. A, B and C are under a joint promise to pay a 3000 rupees. D
recovers the whole amount from A. A may require B and C to make equal
contributions.

iii. Sharing of Deficiency- Thirdly, if any one of the promisors makes a default in such
contribution, the remaining joint promisors must bear the deficiency in equal shares.
A, B and C are under a joint promise to pay D, 3000 rupees. C is unable to pay any-
thing. The deficiency must be shared by A and B equally. If C's estate is able to pay
one-half of his share, the balance must be made up by A and B in equal proportions.

In the case of Joint Family of Mukundas Raja Bhagwandas & Sons Vs. State Bank Of
Hyderabad2, A bank filed a suit on a promissory noted against the defendants where the
liability was joint and several. The High Court on equitable grounds directed that the decree
must first be realized from one defendant and for the balance, if any the execution was to be
taken against the other defendant. The Supreme Court held that such a decree requiring one
of the joint promise’s to pay in the first instance in the first instance and then to proceed
against the others, was bad in law, there being no such equitable principle or statutory
provision and it converted the decree to a joint and several one against all the defendants.

2
AIR 1971 SC 449

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3. Section 44 of the Indian Contract Act,1872 states that:

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 promisors neither does it
free the joint promisor so released from responsibility to the other joint promisor or joint
promisors.

According to this section the creditor is also given the right to release anyone of the joint
promisors from his liability and this does not discharge others from their liability.

In the case of Devilal Vs. Himmat Ram & Ors.3, all defendant parties had taken had
jointly taken a contract for construction of a Town Hall of Udaipur as partners even
though the contract was sanctioned by the City Corporation of Udaipur in the names of
defendants Himmatram and Narottam Swaroop only. Further allegations were that while
entering into a subcontract with the plaintiff-appellant Devilal, the defendant Kanaiyalal
acted as an agent for the rest of the partners. In the relief cause the plaintiff claimed relief
that a decree be passed. The trial court passed the decree but for a less amount than asked
and the amount was reduced further by the district judge. The plaintiff Devilal, therefore,
filed this second appeal. Himmat Ram died during the pendency of the suit, but the
surviving defendants were his partners. The plaintiff has claimed a money decree against
all the defendants jointly and severally for the amount which may be found due to the
plaintiff from the partnership. In view of section 44 of the contract act, the discharge of
one of the promisors from, in this case Himmat Ram due to his death does not imply that
the rest of the defendants are also discharged from performing their promise. The appeal
was allowed and the suit did not abate. The principal in this case was that abatement of an
appeal against one joint debtor or death of one joint promisor does not release the other
joint promisors.

4. Section 45 of the Indian Contract act, 1872 states that:

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 all the joint promises during their joint lives. After the death of any one of
them, it rests with the representatives of such deceased person jointly with the survivor or

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AIR 1973 Raj 39

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 survivors. After the death of the surviving promise it rests with the representatives of all
jointly.

Devolution of joint rights is governed by almost the same kind of principles as the
devolution of joint liabilities. When a promise is made to more than one person jointly,
the right to claim performance rest with all of them jointly. If anyone dies, it rests with his
legal representatives jointly with the survivors and after the death of the last survivor,
with the representatives of all jointly.

Example- A, in consideration of 5,000 rupees lent to him by B and C, promises B and C

In the absence of any contrary intention appearing from the contract the right to claim
performance, that is, the right of joint promisees to claim performance is a joint right, and
in case of death of any one of them the representatives of the deceased is entitled to the
benefit with all survivors. In all cases of joined promises, there is always one promise in
favor of all the joined promises. Therefore it is not open to one of the joint promisees to
sue either the performance of the promise in its entirety or to the extent of his share.

The Supreme Court in Anokhe lal v. Radhamohan bansal4 has held that the principle
made out in section 45 applies to situation where one person has made a promise to two
or more people jointly. The right to claim performance of the contract arising out of such
a promise would then rest with those promisees together with their joined lives and after
the death of any one of them, such a right would be passes on the legal regal
representatives of the deceased jointly with the surviving promisees. If the joint
promisees were partners in a firm, this provision obliges the legal representatives of a
deceased partner to join the rest in enforcement of the right to have performance of the
contract. This is the the gist of Section 45 of the Indian Contract Act, 1872.

4
AIR 1997 SC 257

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 Conclusion
Thus section 42 & 43 of the Indian Contract Act,1872 , deal with contracts when two or more
parties are on one side in a contract. It bifurcates all joint promisors liability, and makes joint
liability joint and several. It provides relief to one of the joint promisors, in case the others
are not party to the suit and sets out a scope for all joint promisors to demand contribution
from their co-promisors and sets out procedure for contribution in case of death or insolvency
of any of the co-promisors.

Section 44 of the Indian Contract Act, 1872, we can see that the promisee can release any one
of the joint promisors from their obligation. This will not affect the liability of the co-
promisors as they may continue to be fully liable to the promisee. The promisee may take
action against any of the co-promisors who have not been released by him/her. While taking
up Section 45 of the Indian Contract Act, 1872, When a promise is made to more than one
person jointly, the right to claim performances rests with all of them jointly. If anyone of
them dies, it rests with his legal representatives jointly. Hence section 42, 43, 44 & 45 are an
integral part of the Indian Contract Act, 1872 in case of contracts where there are joint
promisors on either side.

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 Bibliography
BOOKS
 Dr. AVTAR SINGH, text book on Contract and Specific relief, (11 th EDITION,
2013)

STATUTES
 Indian Contract Act, 1872.