Performance of Joint Promises Section 44 45

If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor himself such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person

For instance, if A promises to paint a picture for B, a must fulfill the promise himself.

But is A owes B money; A can repay the money personally or cause the money to be replayed to B through another person or associate of A. And if A dies before the fulfillment of the promise, the next of kin or the family of A or a pre-appointed person must repay the money back to B.

“When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor” [1] the scope of the rule has been discussed by the Supreme Court.” [2]

Joint promises

There may be contracts have joint promisors and joint promisees. There maybe two or more creditors entitled to the same obligations, or two or more debtors under the same liablity. In the case of debts owed by a principle debtor, and guaranteed by one or more sureties and the liablity of two or more persons who commit a tort, the liablity is joined. In Latin terms, each of the debtors are bound in solidum (for the whole and not a proportional part) A solidarity obligation is one where two or debtors owe the same thing to the same creditor.

In the English law, there are 3 kinds “Several”, “Joint”, “Joint and several”, the general rule being that it is joint. Under English law, all joint contractors must be sued jointly for a breach of a contract and if only one of the joint promisors is sued, it can be pleaded that the co-promisors are necessary parties to the suit. [3] . In a joint promisee, two or more individuals are bound to perform it together jointly and not severally.

Section 44

“Effect of release of one joint promisor –   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 promisors so released from responsibility to the other joint promisor or joint promisors” [4]

The effect of a release of any of the joint promisors by the promisee does not release or discharge the other joint promisors, nor does it affect the right of such others to claim contribution from the joint promisor so released.

Release of one joint promisor

Section 44 also deviates considerably from English law, under which, since joint liability creates one obligation, release of one of the joint debtors under under seal or by accord and satisfaction discharges all. This position is the same under. This position is the same in the case of joint and several liabilities.

This section applied equally to a release given before or after breach. Thus, where in a suit for damages against several partners, the plaintiff compromised the suit with one of them, and undertook to withdraw the suit as against him. It was held that the release did not discharge the other partners and the suit might proceed as against them. The contention that the section occurred in the portion of the act relating to the performance to the contract and therefore did not apply to liabilities arising out of breach, was held to be too narrow a construction to this section. The section applies as much as to partial discharge as to complete discharge. Abatement of an appeal against one joint debtor or the death of one joint debtor doesn’t release the other joint promisor [5]

The same principle has been applied to the judgment-debts and a release by a decree-holder of some of the joint judgment-debtors from liability from under the decree, does not work as a release of the other judgment debtors. It also applies to co-mortgagors jointly and severally liable.

Where the promisee releases one or more of the joint promisors, the liability as between the joint promisors to contribute equally doesn’t end. Where one of the executants makes payment on the joint promissory note and the promisee agrees to discharge him from liability, the joint

Judgment debtors from liability under the decree does not operate as a release of the other judgment debtors .it also applies to co mortgagors jointly and severally liable.

Where the promisee releases one or more joint promisors , the liability as between joint promisors to contribute equally does not end .where one of the executants makes payment on the joint promissory note and the promisee agrees to discharge him from liability ,the co-executant is liable for the balance , but subject to his right to claim, the first co executant for contribution. Where two out of three judgment debtors were discharged

Section 45

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 performances rests with all of them jointly. If anyone of them dies, it rests with his legal representatives jointly, Section 45 is as follows:

“Devolution of joint rights –   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 representative of such deceased person. Jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.” [6]

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 in 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.

Example : A in consideration of `100000 lent to him by B and C, promises B and C jointly to repay them that sum with interest on a day specified. B dies and thus, the right to claim performance rests with B’s representatives jointly with C during C’s life and after the death of C, with the legal representatives of C and B jointly.

The Supreme Court in Anokhe lal v. Radhamohan bansal [7] has held that the principle made out in section 45 [8] 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.

Rights of joint promisees

This section applies to all joint promisees whether they are partners [9] , co-shares [10] , mortgages, joint lessors or members of a joint Hindu family carrying on business in partnership [11] . In case where the owner of a single right dies, and several persons become entitled to it, it has been held that all of them must join in a suit to enforce the right and if any of them refuses to join the plaintiff, he must be added as a defendant [12] , obviously, joint promises cannot divide the debt among themselves and sue severally for the portions. [13]

Right to performance of promises during joint lives

As the right to claim performance of a promise in the case of joint promisees rests with them all during their joined lives, it follows that all the joint promisees should sue upon the promisor. [14] Therefore, if a suit is bought by some of them only, and the other promisees are subsequently added as plaintiffs on objection taken either by the defendant [15] or by the court on its own motion, the whole suit will be dismissed if it is barred by limitation as regards the other promisees who were added subsequently at the time of their joinder.

Suit by a surviving partner

The general rule of English law is that joint contracts are enforceable by the survivors or survivor alone. There is an equitable exception, founded on mercantile custom, as to debts due to partners: but even in this case ‘although the right of the deceased partner devolves on his executor… their remedy services to his co-partner, who alone must enforce the right by action and will be liable on recovery to account to the executor of administrator for the share of the deceased’. [16]

The present section extends the mercantile rule of substantive right to all cases of joint contracts. It seems to be the better option that the representatives of a deceased partner are not necessarily parties to the suit for recover of debt which accrues due to the partnership in the lifetime of the deceased [17] . The dissolved partnership firm may sue for debt.

Deceased partner’s estate

The high court of Bombay has decided, after full examination of the rule and the present section of the act in the light of both Indian and English authorities, that where a partner has died before the commencement of a suit against the firm, the rule doesn’t enable the act to make the deceased partner’s separate estate liable without adding his legal representatives as parties [18]

Suit by representatives of deceased partner

The representative of the estate of deceased partner may maintain a suit for the recovery of a partnership debt, and may join the surviving partners as defendants in the suit where they refuse to join as plaintiffs [19]

Government securities

The application of the principle in this section maybe excluded by statutes specially those relating to securities which provide that

1 securities payable to one or more persons jointly shall on the death of any of them be payable to the survivor or survivors

Securities payable to one or more persons severally shall be payable on the death of any of them to any of the survivors or the legal reps of the deceased holder.

Any one or more joint holder can give effectual receipts for interest until notice has been given by the other holders to the promisor

Exceptions to section 45

Order 30, Rule 4(1) Of Code Of Civil Procedure.

The supreme court in Anokhe Lal V. Radhamohan bansal [20] had held that Order 30, Rule 4(1) Of Code of Civil Procedure Is an exception to the S.45 of the act [21] . The said rule reads as under:

‘(1) Not withstanding anything contained in section 45 of the Indian contracts act, 1872, where two or more person may use or be used in the name of the firm under the foregoing provisions and any of such person dies, whether before the institution 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.

(2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have –

to apply to be made a part of the suit, or

To enforce any claim against the survivor or survivors.’ [22]

The supreme court has held that what sub-r(1) of r4 in O30 of the code provides is that there it is not mandatory to join the legal representatives of a deceased partner as a party in the said suit. What sub-r (2) says is that sub-r (1) is not a hindrance to any legal representative of a deceased partner to get himself impleaded if he has otherwise any right to do so.