Sections 42 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Sections 42 to 45 deal with contracts where two or more persons make a promise together, or where a promise is made to two or more persons together. They say who must perform, whom the promisee may compel, how the burden is shared between the promisors, what a release does, and who may claim performance after a death. If you are drafting a contract with co-promisors, our agreement drafting service can help you set out the liability clearly.
Joint promisors are, unless a contrary intention appears, jointly bound for life and through their representatives (s.42). The promisee may, in the absence of express agreement to the contrary, compel any one or more of them to perform the whole (s.43). Each promisor may compel contribution equally, and a defaulter's share is borne in equal shares by the rest. Release of one does not discharge the others (s.44). Joint rights pass to survivors and representatives jointly (s.45).
Section 42: devolution of joint liabilities
"When two or more persons have made a joint promise, then, unless a contrary intention appears by the contract, all such persons, during their joint lives, and, after the death of any of them, his representative jointly with the survivor or survivors, and, after the death of the last survivor, the representatives of all jointly, must fulfil the promise."
In a table:
| Stage | Who must fulfil the promise |
|---|---|
| While all are alive | All the promisors |
| After one dies | His representative jointly with the survivor(s) |
| After the last survivor dies | The representatives of all, jointly |
The opening words, "unless a contrary intention appears by the contract", make this a default that the contract can displace.
Section 43: any one of joint promisors may be compelled; contribution
Section 43 has three paragraphs and an Explanation.
1. Compelling any one. "When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise." A footnote records that the words "one or more" were substituted for "one" by Act 12 of 1891.
2. Each promisor may compel contribution. "Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract."
3. Sharing of loss by default in contribution. "If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares."
Explanation. "Nothing in this section shall prevent a surety from recovering from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal."
Note the two different phrases. The promisee's right to pick whom to compel yields only to express agreement to the contrary. The contribution right between promisors yields to a contrary intention appearing from the contract.
The Act's illustrations to section 43
| Illustration | Facts | Result |
|---|---|---|
| (a) | A, B and C jointly promise to pay D Rs. 3,000. | D may compel A or B or C to pay the Rs. 3,000. |
| (b) | Same promise. C is compelled to pay the whole. A is insolvent, but his assets can pay one-half of his debts. | C is entitled to receive Rs. 500 from A's estate and Rs. 1,250 from B. |
| (c) | Same promise. C is unable to pay anything and A is compelled to pay the whole. | A is entitled to receive Rs. 1,500 from B. |
| (d) | Same promise, A and B being only sureties for C. C fails to pay, and A and B pay the whole. | They are entitled to recover it from C. |
Illustration (b) shows how the default rule works with numbers: each should have borne Rs. 1,000; A's estate can pay Rs. 500, and the remaining Rs. 500 shortfall is borne equally by B and C, so B pays Rs. 1,250 in all and C ends up bearing Rs. 1,250 net.
A modern example (ours). Three friends, Asha, Bilal and Charu, jointly promise to pay their landlord Rs. 90,000 for a shared studio. The landlord may demand all of it from Bilal alone. If Bilal pays, he may ask Asha and Charu to contribute equally, so Rs. 30,000 each, unless the contract says otherwise. If Charu cannot pay, Asha and Bilal share her Rs. 30,000 shortfall equally.
Section 44: effect of release of one joint promisor
"Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee does not discharge the other joint promisor or joint promisors". The section adds that the release also does not relieve the promisor who was released of his responsibility to the other joint promisors.
A footnote to section 44 points to section 138 (see the overview of ss.124-147), which belongs to the chapter on guarantee and is not part of this article. In plain words: if the promisee lets A go, B and C are still bound, and A can still be asked by B and C for contribution as between themselves.
Section 45: devolution of joint rights
"When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly."
This is the mirror image of section 42: it deals with joint rights rather than joint liabilities. A footnote to section 45 says that for an exception in the case of Government securities, the Public Debt Act, 1944, section 8 should be seen. This article does not go further into that Act.
The Act's illustration. A, in consideration of Rs. 5,000 lent to him by B and C, promises B and C jointly to repay with interest on a day specified. B dies. The right to claim performance rests with B's representative jointly with C during C's life, and after C's death with the representatives of B and C jointly.
What the parties can change
| Section | Can the contract change it? | Wording in the text |
|---|---|---|
| 42 | Yes | "unless a contrary intention appears by the contract" |
| 43, first paragraph | Yes | "in the absence of express agreement to the contrary" |
| 43, contribution | Yes | "unless a contrary intention appears from the contract" |
| 44 | The text has no such words | Release of one does not discharge the others |
| 45 | Yes | "unless a contrary intention appears from the contract" |
A common drafting choice is to state whether liability is "joint and several" or limited to a stated share. The Act's words above are the defaults if the contract is silent.
Practical points
- State each person's share if you do not want equal contribution.
- Record any express agreement limiting the promisee to proceeding against all together, if that is what you want.
- Release carefully. A release of one joint promisor does not release the rest, so an accidental release is not a full discharge, but it does not stop the released person's duty to contribute.
- Death clauses. Decide whether the contract continues after a death, since the default is that representatives and survivors continue.
- Read the single-promisor rule first: section 37.
Need help drafting co-promisor terms?
Joint liability is easy to misread when several founders, partners or family members sign together. Our agreement drafting team can set out whether liability is joint, or split in fixed shares, and what happens on release or death. Send us the draft and the names of all parties and we will mark the points to settle.
Key takeaways
- Joint promisors, their survivors and representatives must fulfil the promise, unless a contrary intention appears (s.42).
- The promisee may compel any one or more joint promisors to perform the whole, unless there is express agreement to the contrary (s.43).
- Each promisor may compel equal contribution; a defaulter's share is borne equally by the rest.
- A surety may recover from his principal; the principal may not recover from the surety (Explanation to s.43).
- Releasing one joint promisor does not discharge the others (s.44).
- Joint rights pass to survivors and representatives jointly (s.45).
Read next
- Sections 40 and 41: who must perform and performance by a third person
- Sections 46 to 50: time and place of performance and manner prescribed by the promisee
- Indemnity and guarantee: overview of Sections 124 to 147
Disclaimer: Based on the text of the Indian Contract Act, 1872 as consulted on 1 October 2026. Many questions under this Act turn on case law and on the wording of the particular contract, which this article does not cover. It is general information, not legal advice; check the official text and take advice before acting.