JUDGMENT

1. This is an appeal on behalf of the first defendant in a suit for arrears of rent. In the original Court, the suit was commenced against three defendants, on the allegation that they held the lands of the tenancy jointly, and were bound to pay rent to the plaintiff for his share in the superior interest at the rate of one rupee five annas per year with cases in four equal installments. It was further alleged that an equal amount was payable to the co-sharer landlords who were joined as the fourth and fifth defendants. The tenants defendants resisted the claim substantially on the ground that rent was payable to the entire body of landlords at the rate of 12 annas 16 gundas a year. Upon these pleadings the issue was raised, what was the amount of rent and cases payable by the defendants to the entire body of landlords? The defendants produced rent receipts for previous years in support of their allegation. The plaintiff, on the other hand, produced a road-cross ret urn purporting to have been filed on behalf of the first defendant which apparently supported the rate alleged by the plaintiff. The Court of first instance held that the first defendant was bound by the admission contained in the road-cess return filed by his officer on his behalf, but that it was not binding upon the other tenant defendants. In this view, the Court made a decree for the entire rent at the rate claimed by the plaintiff against the first defendant alone, and dismissed the suit against the other tenant defendants. Upon appeal by the first defendant, this decision has been affirmed by the Subordinate Judge. The first defendant has now appealed to this Court, and on his behalf the decree has been assailed on the ground that he alone could not be made liable for the whole rent, while the suit was dismissed as against the other defendants who were admittedly jointly interested in the tenancy and were in joint occupation of the lands. This position has been strenuously contested on behalf of the landlord and it has been argued broadly that joint tenants are jointly and severally liable and any one or more of them may be sued by the landlord at his discretion and rendered liable for the whole rent. We are not prepared to accept this as an accurate statement of the law, and we are of opinion that even if the principle were recognized as sound, it could not be applied in the circumstances of the present case.

2. When a landlord A creates a tenancy in favour of B and C jointly, whether each is liable for the entire rent must depend upon the intention of the parties, for as was pointed out in the case of Mahomed Ishaq v. Akram-ul-Huq 6 C.L.J. 558 : 12 C.W.N. 84, the question whether a contract is joint or several or joint and several is a question of construction dependent upon the intention of the parties to the contract. This position is not affected by Section 43 of the Indian Contract Act which lays down the general rule that oneof several joint promisors may be compelled to perform the whole of the promise subject to a right of contribution among themselves. To put the matter in another way, to determine whether the promise is joint or several, we have to ascertain not only whether several persons have joined in making a promise to the same person, but also whether at the same time each of them has in addition made the same promise separately to the same promisee. In such a ease there are, in addition to the joint promise which is made by all of the promisors together, several promises made by each of them separately, and each of the promisors incurs both a joint and several liability. 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 personal representatives of the deceased are liable jointly and severally with the survivors [ Laws of England, Ed. by Lord Halsbury,