RAJINDAR SACHAR, J. ( 1 ) THIS suit was filed by Devi Dayal (whohas since been substituted by his legal representatives) for the recoveryof Rs. 2,50,000. 00. It was alleged in the suit that one Ch. Ram Narainbishnoi took from the plaintiff diff^rei-ltloiii totalling Rs. 1,43,033-/and executed pronotes in favour of the plaintiff on the said dates. Itwas also stated in para 4 of ths plaint that about a year back Ch. Ramnarain died and the defendants are his sons and legal reprasentativesof his estate and are bound to pay the just debts of their father. decree for Rs. 2,59,033. 00 comprising of Rs. 1,43,033. 00 as prlniipal andrs. 1,07,000. 00 as interest was therefore prayed. Suit was filed on18-1-1965. In the suit when the evidence was being taken on commission on 6-2-1971 the advocate for the defendants mids a statement thatbanwari Lal, defendant No. 2 had died by failure of heart on 31-1-71. On this the advocate for the plaintiff stated that the case could notproceed in the absence of the debased dsfendaiit and the case was,therefore, adjourned for further proceedings. On this the Commissioner adjourned the matter and returned the proceedings to the court forfurther necessary action. ( 2 ) IA 493/72 dated 20-3-1972 has been filed in which it is stated thatas three defendants had been sued jointly as representing the estate oftheir father, Ch. Ram Narain, and the plaintiffi hiving taken no stepsto bring the legal representative of deceased, defendant No. 2 on record the suit of the plaintiffs has abated altogether as the right to suedid not survive against the other two defendants as their liability ifany was joint and indivisible. ( 3 ) A reply has been filed on behalf of Plaintiffs. The factum of deathof defendant No. 2 is not denied. The liability of the sons is statedto be not personal and is only confined to the share of eaoh son enjoyedby him of the ancestral property. The liability is, therefore, stated tobejoint and several and the right to sue survives against the other twodefendants. It is denied, therefore, that there is any abatement. ( 4 ) THE position thus boils down to this that the suit was filed aganstthree defendants as representing the estate of Ch. Ram Narain who wasalleged to have taken the loan from the plaintiffs. It is denied, therefore, that there is any abatement. ( 4 ) THE position thus boils down to this that the suit was filed aganstthree defendants as representing the estate of Ch. Ram Narain who wasalleged to have taken the loan from the plaintiffs. Admittedly defendant No. 2 died on 31-1-1971 but no legil repressntative of the deceased has been brought on record. The question that arises in thesecircumstances is whether the suit as such has abated party or wholly ornot at all. ( 5 ) THE contention of Mr. Gupta, learned counsel for defendants No. 1 and 3 is that the liability of all the thres dsfendaits as hsirs of Ch. . Ram Narain was joint and indivisible and as defendant No. 2 had diedand his legal representatives have not been brought on record the suitabates as a whole. Mr Sood learned counsel for the plaintiffs, however,maintains that the liability of defendants 1 to 3 was joint and severaland, therefore, it was open to him even in the first instance tofile a suit against any one of the sons of Ram Narain without impleading other sons and, therefore, the fact that one of the defendants hasdied during the pendency of the suit his legal representatives have notbeen brought on record is of no consequence and the suit can provedin their absence. ( 6 ) NOW as regards the liability of an heir of a deceased Hindu to paythe debts of the deceased, it is settled law that he is liable only to theextent of the assets inherited by him from the deceased. The heir isnot personally liable to pay the debts of the deceased vide para288 Hindu Law by Mulla, 13th Edition. Also under the Hindu Lawaccording to the Mitakshara school two or more persons inheritingjointly take as tenants-in-common vide para 31 Hindu Law by Mulla. ( 7 ) THE main question, therefore, that arises is whether it was open tothe plaintiffs to have filed the suit against any one of the sons of thedeceased, Ch. Ram Narain. Also under the Hindu Lawaccording to the Mitakshara school two or more persons inheritingjointly take as tenants-in-common vide para 31 Hindu Law by Mulla. ( 7 ) THE main question, therefore, that arises is whether it was open tothe plaintiffs to have filed the suit against any one of the sons of thedeceased, Ch. Ram Narain. In other words, were all the heirs of the deceased necessary parties to the suit or were they only proper parties, it isapparent that if the answer is that all the heirs are not necessary partiesbut only proper parties then in that case the fact that one of the partieswho was only a proper party has died while the other two defendantsare on record will not result in the suit abating. But on the other hand, ifall the heirs are necessary parties then obviously on the death of one ofthe defendants the right to sue does not survive to the defendants aloneand if in that case the legal representatives of the deceased have not beenbrought on record within limitation the result must of necessity be thatthe whole suit will abate. This consequence follows because as is wellknown, necessary purty is that without whose presence no decreecan be passed while proper party is that whose presence may be onlynecessary to enable the court to adjudicate more effectually and completely. Thus, if a necessary party is not impleaded, the suit cannotproceed whereas if only a proper party is not added the suit can be continued in its absence. Mr. Sood however, maintains that the heirs ofthe deceased are in the position of a joint promissor and, therefore byvirtue of Section 43 of the Contract Act, it is open to the plainliff tocompel any one or more of the defendants to perform the whole of thepromise. The argument is that as the liability is joint and severalsuit could be filed against any one of the sons of deceased and the deathof one of the sons i. e. defendant No. 2 is, therefore of no consequence. in this regard he refeis me to (1) Chandra Bhan and others v. Misrimaland others (A. I. R. 1955 Rajastlian ll ). In that case d. suit liad beenfiled against some of the sons of the deceased for the recovery of theamount due from theeceased. Objection w^s taken iha. . all the sonshad not been impleaded. in this regard he refeis me to (1) Chandra Bhan and others v. Misrimaland others (A. I. R. 1955 Rajastlian ll ). In that case d. suit liad beenfiled against some of the sons of the deceased for the recovery of theamount due from theeceased. Objection w^s taken iha. . all the sonshad not been impleaded. The learned Judge, however, held that all thesons were not necessary party to the suit as a creditor may bring a suitagainst some of the sons of a deceased Hindu father leaving aside theothers and that if that is done such a suit need not be necessarily heldto be bad for want of other sons on the record. The learned judge alsoobserved, but it seems with respect, more as obiter, that the case of aco-sharer cannot be placed on a better or higher footing than that ofco-promisees on any principle, and that Section 43 of the Contract Actmay well be heldld applicable in principle to the case of co-heirs, and in anyevent, to thi kind of heirs, who are sons in the present case. This viewwas also followed in Mawaji Ramji and others v. Premji Kumbhabhaichanda (A. T. R. 1967 Orissa 158)In that case the plaintiff had fileda suit for the recovery of Rs. 6,800. 00 on the basis of promissory noteexecuted by the deceased, Ramji Haridas. The plaintiff had impleadedonly the sons and not the daughters. Objection was taken that as thedaughters had notbeen impleaded the suit was not maintainable. Thiswas negatived and the bench held applying Section 43 of the Contract. Act that it was open to the plaintiff to compel performance of whole ofthe promise from any one of the co-heirs who by operation of law becomejoint promissors after death of single promissor though sisters are notimpleaded as parties to suit. The bench did not agree with the earlierview taken in Sahed Shaik v. Krishna Mohan (A. I. R. 1917 Cal. 829)0,and purported to follow the full bench decision in Kailash Chandrav. Brojendra (A. I. R. 1925 Cal. 1056)With respect, the view taken in above cases that Section 43 of theconuact Act will be applicable to the case of the coleirs of the deceased is based on mis-apprehension of the scope of Section 43 of thecontract Act. 829)0,and purported to follow the full bench decision in Kailash Chandrav. Brojendra (A. I. R. 1925 Cal. 1056)With respect, the view taken in above cases that Section 43 of theconuact Act will be applicable to the case of the coleirs of the deceased is based on mis-apprehension of the scope of Section 43 of thecontract Act. It is quite apparent that the liability of a son for thedebt incurred by the father is limited only to the extent of the share of theproperty inherited by him. Now one of the essential conditions forthe applicability of Section 43 of the Contract Act is that it is opento a creditor to sue any one or all debitors whose liability is joint andseveral for the recovery of the whole of the amount. Take an illustration; if the amount claimed is Rs. 11 lakhs from three joint promissors,it is open to the credetor to sue only one of them and obtain a decreefor the full amount of Rs. 1. 5 lakhs from him. Of course in such acase latter part of Section 43 of the Contract Act gives a right to sucha person to compel contribution from other joint promissor. Butthat is a matter inter se between the joint promissors. Thereal thing, however, is that creditor is not limited to recoveringfrom one joint promissor only a proportionate amount but can recoverthe whole amount. Now applying this illustration to the case of adebt incurred by the deceased father which is sought to be realisedfrom the three sons, it cannot be said that one son could have beensued for the recovery of the full amount even if the property fallen tohis share was not sufficient to discharge the whole debt. Thus forinstance that if the property left by the father was of the value of Rs. 75. 000. 00 and the property was inherited by the sons then it is apparentthat the liability of each son is only limited to Rs. 25,000. 00. In sucha case if the creditor was to sue one son it is not suggested that he canrecover the whole of the debt due from the father even if the propertyin the hands of one son was very much less than the debt due. 25,000. 00. In sucha case if the creditor was to sue one son it is not suggested that he canrecover the whole of the debt due from the father even if the propertyin the hands of one son was very much less than the debt due. If thatposition is correct then it is not understood how the co-heirs of thedeceased can be considered in the position of joint promisors and,therefore, per se liable not only jointly but severally for the whole debt. The essential pre-requisite of a joint and several liability is that each ofthe promisors is liable foi the full amount due to the creditor. If inthe illustration given by me above one son is not liable for the fullamount but only for the proportionate amount due to his share it isquite obvicus that he carrect be put in the position of a joint promisor. The heirs are in the position of having one indivisible debt due from thewhole of the property which they have jointly inherited. It is not possible to split up the same for the purpose of making only one of themliable for the full amount due. The discussion in Chandra Bhan scase and Mawaji Ramji s case which follows it, about pious obligationof the son to make full payment of just debt of his father does notcarry the matter any further. Even if the debt has not been incurredfor unlawful or immoral purposes the liability of the son is confinedonly to their interest in the co-parcenary property. Thus if the soninherited no property from the deceased father, the pious obligationdoes not extend to his discharging the debt due from ths father and thecreditor cannot proceed against the separate property of the son. If asthe learned judges themselves accept that the liability of each son is tothe extent of the property inherited by him then it is not understood howit is further held that the liability of the sons is joint and several becauseseveral liability pre-supposes that the person is liable to clear off thewhole debt irrespective of the extent of the property devolved on him. When the learned judges accept that each son is only liable to the extentof the property inherited by him it obviously implies that the liabilityis joint and indivisible. When the learned judges accept that each son is only liable to the extentof the property inherited by him it obviously implies that the liabilityis joint and indivisible. The death of the deceased does not make all theheirs jointly and severally liable because the only difference caused by thedeath is to make liable instead of the deceased, the various heirs to theextent of property inherited and the liability is thus by operation oflaw transferred from one person to a number of persons who constitute inlaw one heir. It is for this reason that I cannot agree that Section 43of the Contract Act is applicable in the case of the co-heirs of the deceased. ( 8 ) THIS view of mine finds support from Shaik Saheds case where it was held that Section 43 of the Contract Act can have no applicationwhere parties become jointly interested by operation of law in a contract made by a single person. It was in that case held that if the landlord brings a suit for recovery of rent without impleading all the tenantswho are necessary parties, the suit is not maintainable. It appears thatthere was a conflict of views and the matter was REFERRED TO to full benchin Kailash Chandra Mitra v. Brojendra K. Chakrvarti and others (A. I. R. 1925 Calcutta 1056)C ). Minority judgment ofc. C. Ghose and Mukerji J. held that the heirs or successors-in-interest of a deceased tenantare all necessary parties and the lessor is bound to implead in his suitall the lessees. Mukerji J. also held that all the persons on whom thetenancy devolves on the death of the original tenants is a joint liabilityto the extent of the interest which devolves and not a joint and severalliability in respect of that interest, as the whole body of persons, whosucceed in this way constitute in law but one heir. Mukerji J. also heldspecifically that except in the case of original lessees or persons who wereparties to the contract, the provisions of Section 43 of the Indiancontract Act have no application. Majority judgment was written byb. Mukerji J. also heldspecifically that except in the case of original lessees or persons who wereparties to the contract, the provisions of Section 43 of the Indiancontract Act have no application. Majority judgment was written byb. B. Ghose, J. with whom Wairnsley, J. Greaves J. and Ghose J. agreedand it took the view that all the heirs of the tenant took the property astenants-in-common and that therefore law imposes a liability for payment of rent by reason of privity of estate and any one of such tenantsis liable for the payment of entire rent due to the landlord. The learnedjudge also went on to observe and it seems with respect that it was completely obiter that this may be either in accordance with the provisionsof Section 43 of the Contract Act which applies to express as well asimplied promises, or under the general law based on privity of estate. It will thus be seen that the majority judgment in Kailash Chandra scase was based mainly on the reasoning that the liability of all the tenants on whom the rights have devohed is by privity of estate and responsibility of each of such tenants and, therefore, they may be sued. The reasoning was that as each of the tenants was entitled to possessionof every part of the estate and thus there was privity between him andthe landlord in the whole of the lease-hold. This reasoning is obviouslydistinguishable. The majority assumes that as one of the tenants hasa privity with the landlord for the whole of the estate it is not necessaryto implead all of them. The other two judges did not accept this view. Reference to Section 43 of the Contract Act was only in the nature ofobiter and was not necessary because if as the majority held there w. asa privity of estate then there is a case which especially falls in the category of joint promisor and joint and several liability accrues. Thequestion whether Section. 43 of the Contract Act applies to the case ofa co-sharer of a deceased did not arise in that case. I have already givenmy reasons to show why it is not possible for me to agree with the reasoning even in Mawaji Ramfi s case which supported Chandrabhan scase In these two cases Kailash Chandra s^) case was relied on. 43 of the Contract Act applies to the case ofa co-sharer of a deceased did not arise in that case. I have already givenmy reasons to show why it is not possible for me to agree with the reasoning even in Mawaji Ramfi s case which supported Chandrabhan scase In these two cases Kailash Chandra s^) case was relied on. Inmy view the facts in the full bench case cannot be held to come to afinding that Section 43 of the Contract Act apply to the co-sharer of adeceased. ( 9 ) I may mention that Shaik Sahed s case was REFERRED TO to in D. N. Dutta v. The Income Tax Investigation Commission and others (A. I. R. 1960 S. C. 1317. Though it is true that this case was held not applicable to the facts of the case but it is however to be noted that the Supreme Court did not indicate that it was wrongly decided. I may alsonotice that in the earlier Calcutta case i. e. Siba Krishna Sinhasharma and others v. Jagat Chandra Talukdar and others (1918 I. C. 732) (D. B.) Woodroffe J. held that a landlord cannot maintain asuit for arrears of rent against one of several heirs of a deceased tenantwithout joining the others as defendants and Section 43 of the Contractact has no applicability to such a case. ( 10 ) MY view finds support from the decision in Gurdas Mal v. Kashiram and others (A. I. R. 1921 Lahore 160) where it was held that wherethree persons were sued jointly as representing the estate of their latefather, and their liability, if any, was joint and indivisible, and duringthe pendency of appeal by the plaintiff one of the defendants died, butplaintiff did not apply for nearly two years to bring his legal representatives on to the record, the appeal abated inasmuch as the right to suedid not survive only against the two defendants alone. ( 11 ) SAME view was expressed in Hazard Singh v. Narinjan Singh andothers (A. I. R. 1929 Lahore 783) a division bench consisting of Shadilal C. J. and Hilton J. where it was held that Section 43 applies onlywhere two or more persons have made a joint promise and not wheretwo or more persons have become jointly interested by inheritence ina contract made by a single person. ( 12 ) AS a result of above discussion it has to be held that defendant No. 2 was a necessary party to the suit and the suit would not have beenmaintainable had he not been impleaded. He was, therefore, correctlyimpleaded in the first instance. In a case where one or more defendan tsdie and the right to sue does not survive against the surviving defendants alone and where within the time limited by law legal representatives of the deceased defendant have not been made a party to thesuit, the suit shall abate as against the deceased defendant as providedin Order 22 Rule 4 Civil Procedure Code As no legal representative of deceased defendant No. 2 has been brought on record the consequence is that thesuit must be held to have abated as against deceased defendant No. 2now the question is that whether it can be held that this can be partialabatement or total abatement. In my view it cannot be held that thesuit has only partially abated. The consequence of a suit having beendismissed against defendant No. 2 is that he is not held liable for anyamount which may be due from the deceased father because of the dismissal of the suit. If the suit is allowed to proceed against defendant!i and 3 and a decree is passed for the entire amount they will not bein a position to sue for contribution as provided in Section 43 of thecontract Act in a subsequent suit because of the decision in the presenisuit by which the claim against defendant No. 2 and his legal representatives has been dismissed. This position must follow, because it iswell settled that the court would not countenance a situation where twocontradictory decrees could be passed. In such a situation to hold thatproceedings can continue against defendants 1 and 3 would really beas was stated in Kedar Nath s (A. I. R. 1961 Pb 555)case in similarsituation, to lead to an unfair situation for them inasmuch as they would[be deprived of the right of contribution against the legal representativesof/defendant No. 2. They would thus not be in a position to havethe contribution which is a condition precedent to the applicabilityof Section 43 of the Contract Act. This also shows that Section 43cannot be held applicable. They would thus not be in a position to havethe contribution which is a condition precedent to the applicabilityof Section 43 of the Contract Act. This also shows that Section 43cannot be held applicable. ( 13 ) IT is indeed surprising that though the information of the deathof defendant No. 2 was available to the plaintiff within a week of hisdeath as is clear from the proceedings before the commission yet nosteps have been taken in order to bring the legal representatives onrecord. No reason has been suggested as to why even when the knowledge of death of defendant No. 2 was with the plaintiff the legal representatives were not brought on record. The suit originally framedwas definitely on the allegation that all the sons i. e. defendants Nos. 1to 3 are liable for the debt jointly due from them from the propertyinherited by them. Having definitely taken a stand that the sons arejointly liable it does look anomalous and strange that a completereversal of the position is being now taken by contending that theliability of each son is a separate one. Such a position, however, is notmaintainable in law as discussed by me above. ( 14 ) AS a result of the above discussion it has to be held that the suithas totally abated and is, therfore, dismissed as such. But in view ofthe circumstances of the case there will be no order as to costs.