JUDGMENT:- This is a plaintiffs second appeal in a suit for money. 2. The defendants respondents are the sons of one Chunnilal who had dealings with the plaintiffs. Chunnilal went into accounts with the plaintiffs on 17-4-1950, struck a balance entry and executed a Khata in their favour. As the defendants failed to pay the money due on the Khata, the plaintiffs brought this suit against Misrimal and Pukhraj, sons of Chunnilal, in the first instance. These defendants resisted the suit on the plea inter alia that there were two other sons of Chunnilal, namely, Parasmal and Heerachand who were necessary parties to the suit, and that it was not maintainable in their absence. Thereupon the plaintiffs amended their plaint and impleaded the other two sons of Chunnilal as defendants also. Defendant No.4 Heerachand contended that he was a minor whereupon the plaintiffs withdrew their suit against him and removed his name from the plaint. The remaining defendants again contended that the suit as framed was bad for want of necessary parties. The trial court upheld this objection and dismissed the suit. On appeal, the learned Civil Judge affirmed the decision of the trial court by his judgment and decree dated 29-3-52 from which the present appeal has been filed. 3. The sole question for determination in this appeal, in the circumstances narrated above, is whether the suit as brought by the plaintiffs was not maintainable in the absence of one of the sons of the deceased Chunnilal. The contention of the defendants respondents has throughout been and still is that the liability of the sons of Chunnilal as his heirs was a joint and indivisible one, and all his sons were necessary parties to the suit brought for the recovery of a debt due from the deceased, and the suit must fail in the absence of any one of them. Reliance was placed in support of this view both in the court below and in this Court on - Sahed Shaik v. Krishna Mohan, AIR 1917 Cal 829 (A). That was a suit brought by a landlord against the heirs of a deceased tenant. The trial court dismissed the suit on more grounds than one; but on appeal the Subordinate Judge decreed it against one of the defendants who was the eldest son of the deceased tenant. That was a suit brought by a landlord against the heirs of a deceased tenant. The trial court dismissed the suit on more grounds than one; but on appeal the Subordinate Judge decreed it against one of the defendants who was the eldest son of the deceased tenant. On second appeal, it was held by the Calcutta High Court that the defendants must be taken as one body of registered tenants holding one single holding and, therefore, they were all necessary parties to the suit. It was held further that S.43, Contract Act could not have any application, as there was no case of a joint contract but it was one where parties had become jointly interested by operation of law in a contract made by a single person. It is to be observed, however, that this case is one of doubtful authority, as the majority of the Judges of the same High Court who composed the full bench in - Kailash Chandra Mitra v. B.K. Chakravarti, AIR 1925 Cal 1056 (FB) (B) did not adopt the view which was taken in the earlier case. B.B. Ghose, J., who delivered the judgment of the majority held that the argument that the tenancy as well as the liability for payment or rent had been inherited by the representatives of the deceased tenant as one body and that that body as a whole was liable for the rent, was grounded on a misconception. The learned Judge proceeded to observe that the heirs did not take the tenancy as an entire body forming as it were a partnership or a corporation but as tenants in common where each of them was entitled to possession of every part of the estate and as each had estate in the entire land, there reason why he should not be held liable for the entire rent. Mukherji, J., who gave a dissenting opinion was also of the same view so far as this aspect of the matter was concerned; but he took a different view on the question of the frame of the suit, and expressed the opinion that the other heirs of the deceased tenant were necessary parties to determine whether the liability which was prima facie joint was also joint and several and for protecting the defendant from being made to pay what may have already been paid by others, and so on and so forth. The learned Judge was further of the view, however, that the suit could not be dismissed on that ground forthwith and that the court must proceed under O.1, R.10, Civil P.C. to make an order for the addition of the parties as were not on the record, and that it was only in the event of the necessary amendments not being made that the suit was liable to be dismissed. In the event of the necessary amendments being made, however, the learned Judge was of the opinion that the suit would not fail because the plaintiff might have lost his remedy against the added defendants. With great respect to the learned Judge, if the suit cannot fail in such circumstances, there can be little meaning in holding that the liability of all heirs of the deceased was joint and indivisible, and it would be, in my humble opinion, nearer the mark to say that all the heirs of the deceased are not necessary parties to a suit brought against some of them although they may be very proper parties to it. 4. Another case relied upon by learned counsel for the respondents is - Hazara Singh v. Naranjan Singh, AIR 1929 Lah 783 (C). In that case a mortgagee filed a suit for recovery of mortgage money against four out of five sons of the deceased mortgagor for his 2/3rds share of the entire mortgage (the 1/3rd share having already been redeemed). The trial court decreed the plaintiffs suit for 4/5ths of 2/3rds share of the mortgage money, and this decree was upheld by the High Court. The trial court decreed the plaintiffs suit for 4/5ths of 2/3rds share of the mortgage money, and this decree was upheld by the High Court. It is true that in this case the plaintiff was not awarded a decree for the amount of the mortgage money debitable to the 5th son, but at the same time the plaintiffs suit was not thrown out on the ground that that son was not made a party to the suit. This authority, in my opinion, affords no help to the respondents and seems to me to go against them. 5. Learned counsel for the respondents then invited my attention to paragraph 31 at page 23 of the Principles of Hindu Law by D.P. Mulla, where the learned author states that two or more sons succeeding as heirs to the separate or self-acquired property of their paternal ancestor succeed him as joint tenants with rights of survivorship. It was argued that the sons of Chunilal took as joint tenants and not as tenants-in-common, and, therefore, their liability was also joint and that the present suit could not proceed without all the sons of Chunilal being impleaded therein. This argument, in my opinion, is fallacious. All that Mulla has laid down in para.31 is that according to the Mitakshara school, two or more persons inheriting jointly take as tenants-in-common except certain classes of heirs, and two or more sons are mentioned as one such class, when they succeed to the separate or self-acquired property of their paternal ancestor. In other words, when sons inherit as heirs to the self-acquired property of their father, which property is undivided, then if one of then dies, his undivided interest must pass to his brother by survivorship, and his widow will not be entitled to inherit. This does not mean that the liability of the sons for the debts of the deceased father is one and indivisible and that a suit against some of them cannot at all proceed in the absence of others. 6. This does not mean that the liability of the sons for the debts of the deceased father is one and indivisible and that a suit against some of them cannot at all proceed in the absence of others. 6. Now, the law is well settled that so far as the liability of a son to pay off the debts (other than those contracted for an immoral or illegal purpose) of his father is concerned, it rests on a religious duty under the Mitakshara Law to which the defendants and their father are admittedly subject in the present case, and such liability subsists whether the father is alive or dead. It is equally settled that this liability is not a personal one and must be limited to the assets received by the son from the joint family property (see - Mulchand v. Jairamdas, AIR 1935 Bom 287 (D). It was argued by learned counsel for the respondents in this connection that the liability of a son was as much as and no more than that of any other heirs under the Hindu law as administered at this date and, therefore, there was no particular significance attachable to the so-called doctrine of pious obligation. It is true that the liability of a son under the pure Hindu law to pay off the debts of his father stood on a stricter footing and existed irrespective of the consideration whether he received any assets from his father or not; but the same rule no longer holds good, and he is now liable only to the extent of the assets received by him from his ancestor. Nevertheless the argument of learned counsel is not well founded because it is only on the basis of this doctrine that a son becomes liable to pay off the debts of his father as a surviving co-parcener in a joint Hindu family which responsibility would otherwise not have existed as in the case of other members unless the share of the deceased had been attached or sold in his lifetime. It seems to me that the character of the liability of the son to pay off the debts of his father is such that each son is under a religious duty to pay them off entirely, as much as any other son, subject to the qualifications that such debts are not tainted with immorality and to the extent of the assets received by him from the deceased. From this it must follow that a creditor may bring his suit against some of the sons of a deceased Hindu father leaving aside the others and that if that is done, such a suit need not be necessarily held to be bad for want of the other sons on the record. A necessary party to a suit is one whose presence is indispensable to the very constitution of the suit and in whose absence the suit cannot proceed at all. To my mind, it cannot be postulated that a suit by a creditor against some of the sons of the deceased Hindu father cannot proceed in the absence of his other sons for the reasons stated above. 7. I may also refer in this connection to S.43, Contract Act. The relevant portion of that section reads as follows: "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." Now, it has been held, in some cases that this section applies only to the case of joint promisees and not to the case of co-heirs. This is obviously so, as the section speaks of co-promisees only but with great respect there appears to me to be no sound reason why the principle of this section should be held to be inapplicable to the case of heirs also who have jointly succeeded to the liability of their deceased ancestor. So far as my humble judgment goes, the case of co-heirs cannot be placed on a better or higher footing than that of co-promisees on any principle. So far as my humble judgment goes, the case of co-heirs cannot be placed on a better or higher footing than that of co-promisees on any principle. The English law on the point is undoubtedly different, but as the law of our own country has made a departure therefrom, I am inclined to the opinion that the rule embodied in S.43, Contract Act may well be held applicable in principle to the case of co-heirs, and in any event, to the kind of heirs, who are sons in the present case. 8. A consideration of the principle behind S.53, Civil P.C. also seems to me to lead to the conclusion that all the sons of a deceased Hindu father are not necessary parties to a suit brought by a creditor against some of them. Section 53 provides in effect that property which is in the hands of a son and which is liable for the payment of the debt of a deceased ancestor shall be deemed to be the property of the ancestor which has come to the hands of the son as his legal representative. It is, therefore, incontrovertible that ancestral property in the hands of a son can be proceeded against in execution as assets of the deceased in the hands of such descendants even where a claim is decreed against the deceased ancestor, and the sons are no party to the suit. It may also be pointed out that debts incurred by a father before partition between the father and the sons can be enforced against property which falls to the share of the sons on partition even when a suit is brought after the partition has taken place because the property received by the sons at the partition is the property of the judgment-debtor within the meaning of S.53, Civil P.C. Again where the liability of a son exists under the Hindu law to pay the debt of the deceased ancestor, the whole of the ancestral property in his hands is liable and not merely the share of the deceased ancestor. See - Mohanlal v. Bala Prasad, AIR 1922 All 310 (E). See - Mohanlal v. Bala Prasad, AIR 1922 All 310 (E). It seems to me to follow from all this that each son of a deceased father is responsible under the Mitakshara law to be proceeded against in execution even where the suit was brought against the deceased ancestor, and the sons were not a party thereto. Therefore, a son of such a deceased ancestor cannot be allowed, in my opinion, to defeat this liability by the plea in a suit brought against him that he alone is not the legal representative of his father and there are other sons who are also his legal representatives, and for that reason the suit brought against him to the exclusion of others is bad and unmaintainable. If the creditor chooses to file his suit against some of such persons only and not against the other heirs, the persons sued have no reason to complain, as a rule, because their liability exists to the entire extent of the joint family property in their hands, and it seems to me that if such a creditor thinks that he will be able to obtain satisfaction of the debt by suing some of the deceaseds legal representatives only, he is well within his rights to do so. The result of the above discussion is that a creditors suit need not be thrown out on the ground that all the heirs of the deceased father have not been joined in the suit brought against some of them, and that all the sons of the deceased father are not necessary parties to such a suit except under extraordinary circumstances, e.g., where the plea may have been raised that the debt had been discharged by another son who is not on record, but that evidently is not the case here. 9. In this view of the matter I have come to the conclusion that the plaintiffs suit against some of the heirs of the deceased Chunnilal only and not all of them is maintainable in law and should not have been dismissed. Consequently, I allow this appeal, set aside the judgments of the courts below and remand the case to the Munsiff Sirohi with a direction that he will dispose of the case on the merits. The appellants will be entitled to their costs incurred in this Court and the court below and further costs shall abide the result. Consequently, I allow this appeal, set aside the judgments of the courts below and remand the case to the Munsiff Sirohi with a direction that he will dispose of the case on the merits. The appellants will be entitled to their costs incurred in this Court and the court below and further costs shall abide the result. Appeal allowed.