Inherited tenancy liability cannot be fastened on one heir alone where the suit was brought against all heirs.

Section 43 of the Contract Act applies only to a joint promise and does not authorise fastening liability on one heir alone where rent liability arises from an inherited tenancy claimed against all the heirs. A suit framed against all heirs of a deceased tenant, treating them as holding one tenancy, could not be converted into a case against a single heir on an unpleaded footing. The decree against the lone heir therefore could not stand, and the matter was remitted for fresh determination against all defendants.

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Issues: Whether a decree for arrears of rent, in a suit brought against all the heirs of a deceased tenant, could be sustained against only one heir on the footing of Section 43 of the Contract Act.

Analysis: The suit was framed against all the heirs, thereby treating them as tenants holding one holding. Section 43 of the Contract Act applies to a joint promise made by two or more persons, and not to a tenancy or contractual liability that devolves by operation of law upon the heirs of a deceased tenant. The plaintiff could not, after suing all the heirs, have the case converted into one against a single heir alone on a footing not pleaded or made out. The authorities relied upon were distinguished on the ground that they did not govern an inherited tenancy of this kind.

Conclusion: The decree against the single heir could not stand, and the matter had to be decided afresh against all the defendants in accordance with law.

Final Conclusion: The lower appellate decree was set aside and the case was remitted for rehearing and determination against all the defendants.

Ratio Decidendi: Section 43 of the Contract Act applies only to a joint promise, and it does not authorise fastening liability on one heir alone where the liability arises from an inherited tenancy claimed against all the heirs.

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