1. This appeal arises out of a suit for arrears of rent upon a kabuliyat said to have been executed by defendants 1, 2, 3, 4 and the predecessor-in-title of defendant 5. The suit was dismissed by both the first and second Courts. The said Courts held that the kabuliyat which was the basis of the suit was a fictitious one. Pending the appeal to this Court, one of the defendants, namely, defendant 3, died and her heirs were not substituted in proper time. The appellant has subsequently given up the heirs of defendant 3. The appeal now is one against defendant 1, 2, 4 and 5. The decision of the Courts below in favour of defendant 3 having become final by reason of the appeal failing against her, a preliminary objection is taken by the respondent that this appeal cannot be maintained. It is contended by the learned vakil for the appellant on the basis of Section 44 of the Contract Act, that he is entitled to give a release to one of the joint contractors and to proceed against the others for the entire claim; and secondly, that if he is not entitled to do so, he can proceed against the defendants on the record for their shares only. Taking it for granted that so far as defendant 3 is concerned there is a final decree between the parties, we think that neither of these contentions can be maintained. S. 44 of the Act speaks of a release of one of the joint promisers. In this case, we cannot speak of a release, because so far as defendant 3 is concerned, the contract was found to have been illusory and of no effect. Therefore, there is a determination by a competent Court that defendant 3 is not liable. This is not a case of a release. That being so, the plaintiff is not entitled to rely upon S. 44.
2. It is further contended that as joint tenants or joint contractors, he is entitled on the principle of S. 43 to sue for the entire rent against any of the joint contractors. That might be so, but in this case the plaintiff did choose to bring a suit against all the joint contractors and the contest proceeded on the basis of a joint contract.
3. The result of what has taken place is that defendant 3, one of the joint contractors, is out of the action: and if we were to give a decree against the other defendants, it would work injustice upon them, in that supposing they were jointly liable, they would not be entitled to have a decree for contribution against defendant 3 who has, by the decision of a competent Court, been declared to be not liable. Then as regards the alternative contention that the plaintiff is entitled to sue for the shares of the defendants on the record, that also is not practicable; for, then the shares of the defendants among themselves will have to be determined, and in this case, in the absence of defendant 3 who is out of the record, that cannot be done. The appeal, therefore, cannot be maintained and is dismissed with costs.
V.B/R.K
4. Appeal dismissed.