On the death of one joint tenant, the rights and liabilities are transferred to the heirs, making it impossible to determine the liability as joint or several.

JUDGMENT

1. The plaintiffs are the appellants before us and the facts, which have given rise to this appeal are, shortly stated, as follows:

The plaintiffs, who are the landlords, instituted a suit, being Suit No. 984 of 1919, in the Court of the Munsif at Dubrajpur, for recovery of arrears of rent for the years 1322 to 1325 B.S. The jote, in respect of which the arrears of rent were claimed, stood in the names of two persons named Miran and Bishnu Chaudhuri. The parties, who were made defendants in the suit, contended that all the heirs of the said two recorded tenants had not been made defendants and accordingly the suit was incompetent.

2. The Court of first instance found that all the heirs of the said two recorded tenants were in possession of the jote, and that a son of Bishnu Chaudhuri and the heirs of other sons of Bishnu Chaudhuri and heirs of Miran Chaudhuri had not been made parties to the suit, and accordingly dismissed the suit, holding that it was bad for defect of parties.

3. The plaintiffs appealed to the learned District Judge of Birbhum, the appeal being numbered No. 19 of 1920. The lower Appellate Court observed as follows : "Then as regards the facts of the individual case under consideration I find it is not the plaintiffs case that there are other heirs, nor is it a fact that they sued some but gave up others. Their standpoint is that they have sued those who are in actual enjoyment of the suit lands and they are not aware of others in similar 'position. Now one of the guiding principles in all the cases referred to is, if a decree for rent be passed, it may act as res judicata and bind absent parties. There can be no such danger when a money decree is passed. Whether the decree passed is u/s 43 of the Contract Act or whether that section should be interpreted as strictly as it had been, are points which are not strictly relevant. In the proved facts of the case and the state of the law I have no doubt the orders passed are substantially sound and I am not inclined to interfere with them."

4. On behalf of the appellants it has been contended before us that having regard to the view which was taken by the lower Appellate Court, a decree for money against the defendants ought, at any rate, to have been made by the lower Appellate Court, and, secondly, that it should have been held that the defendants were jointly and severally liable for arrears of rents due in respect of the said jote, and that accordingly the suit was not liable to be defeated by reason of non-joinder of the other heirs of the parties referred to above.

5. The contention on behalf of the appellants, therefore, really amounts to this, namely, where a tenancy is created in favour of two persons jointly, each of them is jointly and severally liable for the entire rent. Now, so far as this broad proposition is concerned, there is, as has been pointed out in the case of Kasi Kinkar Sen v. Satyendra Nath Bhadra [1910] 15 C.W.N. 191 considerable diversity of judicial opinion. It has been observed in several cases that in order to determine whether the liability is joint or several in matters of this description, the intention of the parties to the contract should be ascertained independently of the rule laid down in Section 43 of the Indian Contract Act. On the other hand, it has been broadly stated in other cases that the landlord may maintain a suit for rent against any number of several joint tenants.

6. It is unnecessary for us, on the facts found by the learned Munsif in this case, to attempt to reconcile the two views referred to above. We think the present case may be disposed of on the short ground that, assuming that one of several joint tenants is liable for the whole rent, on the death of one such joint tenants leaving a number of heirs, no question can possibly arise as to whether the liability was joint or several, because the bundle of rights and liabilities which was in one such joint tenant is, by operation of law, transferred to a num