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Section 42: Devolution of joint liabilities

Indian Contract Act • Official Statutory Text & Practice Guide

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Act 1872
Section 41 All 266 Sections of Indian Contract Act Section 43

Legal Commentary & Landmark Judgments: Section 42

Section 42 of the Indian Contract Act, 1872 mandates the statutory devolution of joint liabilities, providing that when two or more persons make a joint promise, all must fulfill it during their joint lives, and after the death of any, their legal representatives jointly with the survivors, and after the death of the last survivor, the representatives of all jointly.

  • Universal Joint Liability: Unless a contrary intention appears from the contract, all joint promisors are jointly bound to fulfill the promise in its entirety during their joint lives.
  • Abrogation of Common Law Survivorship (Jus Accrescendi): Section 42 abrogates the English common law survivorship rule; the death of a joint promisor does not release his estate, and his legal representatives remain jointly liable with the surviving co-promisors.
  • Concurrent Devolution upon Estates: Upon the demise of all joint promisors, liability devolves concurrently upon the legal representatives of all deceased promisors to the extent of assets inherited.
Key Landmark Precedents:
  • Narayandas v. Jivatram AIR 1928 Sind 142: Held that Section 42 specifically abolishes the English rule of survivorship in joint contracts, keeping the estate of the deceased joint promisor continuously liable alongside surviving co-promisors.
  • Firm of G.G. Morarji & Co. v. Gordhandas (1927) 29 BOMLR 1414: Affirmed that the legal representatives of a deceased partner are jointly liable with surviving partners for partnership contractual obligations under Section 42.
Courtroom Practice & Strategic Litigation Guidance:

When instituting recovery proceedings against joint borrowers or partnership firms where a co-obligor has passed away, implead both surviving promisors and the legal representatives of the deceased under Section 42 read with Order I Rule 3 CPC. Plead joint and several liability, seeking execution against survivors personally and against legal heirs to the extent of inherited estate under Section 52 CPC.

Section 41 All 266 Sections of Indian Contract Act Section 43