James, J.The suit out of which this appeal arises was instituted for arrears of rent for the years 1326 to 1329. One group of co-sharers in the tenancy was not impleaded in the suit, which was; consequently decreed as a money suit by Babu Jamini Mohan Mukherji, Mutfsif of Barh, whose decision was affirmed on appeal by Jatindra Nath Ghosh, Subordinate Judge. One of the defendant tenants comes up in second appeal from that decision.

2. The first ground taken on behalf of the appellant is that the suit ought not to have been decreed, because the plaintiffs name was not entered in the Collectors land register when it was instituted, but his name was recorded under the Land Registration Act for the full share claimed by him, before the date of the judgment and this is sufficient compliance with the law. It is argued in the second place that the plaintiffs collection is not separate, but this point is concluded by the findings of the fact of the Courts below.

3. In the third place Mr. A.K. Ray argues that the suit was not maintainable in the absence of certain co-sharers, heirs of the late Anisul Huq. He argues that the suit cannot be maintained otherwise that against the whole body of recorded tenants, unless it is shown that each tenant undertook to be liable for his full share of rent, relying on the decisions in the cases of Jageshwar Rai v. Kesho Prasad Singh [1917] 1 P.L.J. 190 and Kasikinkar Sen v. Satyendra Nath Bhadra [1910] 12 C.L.J. 642.

4. The decision in the former case has been explained by the learned Judges of this Court who decided the case of Birendra Singh v. Bachu Mahto [1920] 5 P.L.J. 32, holding that in a case of this kind the plaintiff may obtain a money decree. The late Mr. Justice Mukherji in Kasikinkar Sens case lays down the principle that before one of two or more joint promisors can be sued on a joint contract, it must be ascertained that each of the joint promisors has in addition, separately made the same promise to the same promisee. The learned Judge points; out that in such a case there are, in addition to the joint promise which has been made by all of the promisors together, several promises made by each of them separately and each of the promisors incurs both joint and several liability. He goes on to say that in such a contingency, all or any of the promisors may be sued at the option of the promisee in respect of a joint and several liability, and separate actions may be brought against each, in the event of the death of any of them, the persons representing the deceased are liable jointly and severally with the survivors.

5. The latter part of this proposition certainly follows from the rule in Burns v. Bryan [1887] 12 A.C. 184, which, together with the case of King v. Hoare [1884] 13 M. & W. 494, Vs cited by the learned Judge in support of it; although the rule in Burns v. Bryan [1887] 12 A.C. 184, cannot apparently have any bearing upon ordinary rent suits under the Bengal Tenancy Act.

6. The decision in King v. Hoare [1884] 13 M. & W. 494 does not lay down the rule that one of the two joint debtors cannot be separately sued, the rule is that a judgment recovered against one of them is a bar to an action against the other. This rule could apparently have had no application, Kasikinkar Sens case [1910] 12 C.L.J. 642 in which no decree has been obtained against any co-sharer other than the appellant himself. But whether it would otherwise have applied to that case or not, the enactment of Section 43, Contract Act, had long ago made the rule in King v. Hoare [1884] 13 M. & W. 494, with its subsequent development in English cases, inapplicable in India, as was clearly explained by Chief Justice Strachey of the Allahabad High Court in the case of Mahomed Askari v. Radhe Ram Singh [1900] 22 All. 307, which has subsequently been approved by the other High Courts in India.

7. The learned Chief Justices decision in this matter is clear:

The result is, first that the doctrine of King v. Hoare [1884] 13 M. & W. 494 and Kendall v. Hamilton [1879] 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, Contract Act, provides that when two or more persons make a joint promise, the promisees 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.... 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. The learned Chief Justice goes on to say that Section 43 "cuts away the foundation of the English doctrine and makes it inapplicable to India.

8. With all respect to the eminent Judge who decided Kasikinkar Sens case, it appears to us that he was in error in thinking that it was necessary, before a joint promisor could be separately, sued to find that he had made the promise separately to the promisee. By the provisions of Section 43, Contract Act, before he can resist a suit in which his co-sharer is not impleaded, he must show that there was definite contract that each promisor should not be separately liable, which is altogether a different matter.

9. The next precedent relied upon in Kasikinkar Sens case is the case of Roop Narain Singh v. Juggoo Singh 10 W.R. 304, which would have been in point, if it had not been decided before the enactment of the Contract Act. The next case cited is that of Khetter Mohan Pal v. Pran Kristo Kabiraj [1898] 3 C.W.N. 371, where it was, held that in a suit for rent of patni tenure, if was not the duty of the landlord to implead the heirs of a deceased darpatnidar whose names had not been notified to him, with the implication that, if he impleads any heirs, he should implead all heirs whose names have been notified to him.

10. The next case cited is that of Ramtaran Chatterji v. Asmatulla Sheikh [1901] 6 C.W.N. 111, in which one of several joint tenure-holders had executed a kabuliyat for the entire tenure in which the other tenure-holders did not acquiesce, and it was ruled that the tenant who had executed the kabuliyat was not bound in excess of his share and he was not liable for the whole of the enhanced rent agreed upon. It was found as a fact in that case that there was no joint contract, and that the other co-sharers had not undertaken to pay the rent which the first co-sharer had accepted.

11. The next case relied upon by the late Mr. Justice Mukherji is that of Ananda Kumar v. Hari Das [1900] 27 Cal. 545, a case in which several raiyats were sued, but one co-sharer was omitted. The holding was brought to sale in execution of the decree and it was held that the title of the omitted tenant had not passed by the sale, that is to say, the decree was not a rent decree but a money decree. But it is to be remarked that it was not held that the sale was invalid, so far as the title of the impleaded tenants was concerned, so that this decision was strictly against the view ultimately taken in Kasikinkar Sens case.

12. The next ruling cited in support of the decision in the case under discussion is that of Abdul Rab Choudhury v. Eggar [1908] 35 Cal. 182, wherein it was held that where persons liable to pay rent were mutwalis they must all be brought before the Court as defendants in a suit for rent on the ground that they stood in the position of trustees, and since they were trustees they should all be made parties in a suit brought against them as such. The decision would appear to have no bearing on a case where ordinary raiyats holding in joint or common tenancy are sued for rent.

13. The learned Judge in the case under discussion next proceeded to discuss the case of Jogendra Nath v. Nagendra Narain [1907] 11 C.W.N. 1026, wherein it was definitely laid down in a case in which process had not been served on some of the raiyats, that a suit for rent against some of several joint tenants was maintainable because they were jointly and severally liable. The learned Judges there pointed out that to hold one of several such tenants to be liable only for his own share of the rent would be directly opposed to the policy laid down in Section 88, Bengal Tenancy Act.

14. The late Mr. Justice Mukherji remarked that the question raised in Kasikinkar Sens case [1910] 12 C.L.J. 642 was of an entirely different character, the point being not whether each of the tenants was liable for his share of the rent, but whether they were jointly liable as they asserted or severally liable for the whole rent as the landlord contended, but with all respect to the learned Judge, we are unable to see that the question in Kasikinkar Sens case [1910] 12 C.L.J. 642 was in any respect different from that in Jogendra Naths case.

15. The learned Judge next discusses the case of Sir Rameswar Singh v. Jaydeb Jha [1910] 12 C.L.J. 591, in which Chatterji and Vincent, JJ held definitely that it was competent to the plaintiff to maintain his suit against any number of several tenants. Mr. Justice Mukherji disposed of this case on the ground that the earlier decisions to which reference was made in Kasikinkar Sens case [1910] 12 C.L.J. 642 had not been brought to the notice of the Court, but we cannot believe that if these decisions had been brought to the notice of Chatterji and Vincent, JJ. their own decision would have been affected thereby because these decisions appear to us, with the exception of a single decision of a date before the enactment of the Contract Act, to have no direct bearing upon the point at issue in Sir Rameswar Singhs case [1910] 12 C.L.J. 591. Mr. Justice Mukherji then proceeded to justify his decision on two grounds, the fast being that the omitted defendants might subsequently deny that rent was payable at the rate then claimed by the landlord, and he could not pronounce judgment against the defendant who was on the record, in view of the fact that he might find difficulty in obtaining contribution from his co-sharers.

16. In the peculiar circumstances of Kasikinkar Sens case [1910] 12 C.L.J. 642, where the defendant was held bound by an entry in the road case return, while the suit against the other tenant defendants was dismissed, there might have been some justification, on the strength of the ruling in the case of Ramtaran Chatterji v. Asmatulla Sheikh [1901] 6 C.W.N. 111, for a decree limited to the defendants share of the rent, though we do "not agree that such a course would have been justified, far less that such an agreement afforded justification for the dismissal of the whole suit. The second independent ground taken by the learned Judge was that the tenancy was an anoestral one, the tenants in occupation were representatives of the original tenant, and that it could not be assumed, even if one of the several joint tenants was liable for the whole rent, that on his death every one of his heirs would be liable for the whole rent.

17. In support of this view that the heirs really constitute one body the learned Judge cites the case of Ahinsa Bibi v. Abdul Kader [1902] 25 Mad. 26, wherein a suit was instituted by legal representatives of a deceased partner in a trading partnership against the surviving partners and representatives of the other deceased partner for an account, but nothing in the decision in that case appears to us to be properly applicable to occupancy raiyats succeeding to their ancestral holding and inheriting the right to occupation of the holding with the ancestors liability to pay rent. It appears to us therefore that the decision in Kasikinlcar Sens case [1910] 12 C.L.J. 642 cannot be taken as affording authority for the view that the liability of cosharers of an ordinary holding to pay rent to the landlord is not joint and several, and we consider that the correct view was expressed by the acting Chief Justice of the Calcutta High Court and Sharfuddin, J. in Jogendra Nath Roys case [1907] 11 C.W.N. 1026, and Chafoterji and Vincent, JJ. in Sir Rameswar Singhs case [1910] 12 C.L.J. 591.

18. For ourselves we are bound by the decision of this High Court in the cases of Kesho Prasad Singh Vs. Shamnandan Rai and Others, and Hirday Narain Singh and Others Vs. Jugal Prasad Singh, in which it was held that a decree for the whole amount of rent can be passed against one of several co tenants. The decree of the lower Court in the present case is expressly a money decree and not a rent decree, and there does not appear to be any ground for holding that the decision of that Court was not correct. The decree of the lower Court is accordingly affirmed and the appeal is dismissed with costs.

Das, J.

I agree.