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Report No. 110

II. Survival of Causes of Action

40.3. Section 305-In respect of causes of action surviving deceased and debts due at death.-

According to section 305, an executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts as the deceased had, when living.

The section needs no change.

40.4. Section 306.- Section 306 reads as under:-

"306. All demands whatsoever and all rights to prosecute or "defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Panel Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

Illustrations

(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of section does not survive.

(ii) A sues for divorce. A dies. The cause of action does not survive to his representative."

The section relates to an important topic whose interest transcends the mere limits of "powers of an executor or Administrator". A number of aspects will require examination.

40.5. Position in Kerala.-

It should be noted at the outset that in Kerala.1 a State Act contains provisions, inter alia, relating to the survival of causes of action and expressly repeals section 306 by providing that that section, so far as it relates to the right of action in torts, shall cease to apply in the State of Kerala. The Act seems to re-er act an earlier Travancore Act2 on the subject.

1. Kerala Torts (Miscellaneous Provisions) Act, 1976 (8 of 1977), 1977 KLT Journal, pp. 37-39.

2. Travancore Law Reform (Miscellaneous Provisions) Act (12 of 1124).

40.6. Origin of the maxim.-

Consideration of section 306 of the Central Act may begin with the maxim-personal action dies with the person. Although somewhat obscure in its origin, the principle that a personal cause of action dies with the person, seems to have been linked with the criminal flavour of early tort remedies.1

The maximum was originally introduced to prevent actions of a penal character, like trespass and its offshoots, from being brought after the death of the wrongdoer against his representatives.2-3 The main reason was that the trespass was "drowned in the felony". Later, however, the maxim was applied to cases of death of the injured person, even though the reason4 underlying the maximum had no application.5

Thus, the wide scope that the rule came to acquire was more a product of the accidents of history than of any deliberate view taken as a matter of policy.

1. Fleming Torts, (1965), p. 695.

2. Holdsworth H.E.L., Vol. 3. p. 576.

3. See also Street Torts, (1977), p. 407.

4. Death of Wrongdoer in case of penal action.

5. Admiralty Cemmrs v. S.S. America, 1917 AC 38 (43, 44).

40.7. Position in England.-

In England, by the Law Reform (Miscellaneous Provisions) Act, 1934,1 most causes of action survive on the death of a person. The relevant provision of the Act is as follows:-

"1. Effect of death on certain causes of action:-

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of, his estate:

Provided that this sub-section shall not apply to causes of action for defamation"

There is no exception in England for personal non-fatal injuries. Even as regards defamation, there is a section of opinion2-3 that there should be no exception.

1. Section 1(1), Law Reform (Miscellaneous Provisions) Act, 1934 (24 and 25 Geo. 5, C. 41) as amended.

2. See para. 40.18 et seq., infra.

3. Also Salmond Torts, 1981, p. 416, Foot Note 57.

40.8. Position in Australia.-

In Australia,1 on the death of any person, all causes of action subsisting against or vested in him survive against or for the benefit of his estate; with the exception of causes of action for defamation, seduction, enticement of spouses and damage claims for adultery. Even as regards defamation, the cause of action survives in Tasmania.

1. Fleming Torts, (1965), p. 696.

40.9. Position in Canada.-

In Canada, in many States, the law relating to survival of personal causes of action has been reformed by statutes passed by the State Legislatures.1 For example, under section 38(1) and (2) of the Trustee Act of Ontario2, causes of action survive as regards all torts or injuries to the person or to the property for breach of promise of marriage.3

Substantially to the same effect is the provision in sections 32 and 33 of the Trustee Act of Alberta.4 To the same effect is section 71 of the administration Act of British Columbia.5 Section 49 of the Trustee Act in Manitoba continues all actions of tort except action for libel and slander, malicious prosecution, false imprisonment or false arrest.

In New Bruswick, the Survival of Actions Act has followed the English Act of 1934. In Newfoundland, the Trustee Act, section 22, in effect, provides for actions by or against personal representatives of a deceased for wrong to the property. The Saskatchewan Trustee Act (sections 52 and 53) allows all actions to survive for wrongs "not resulting in death, except libel and slander". In Nova Scotia, the Survival of Actions Act provides that in the event of death of any person, all causes of action subsisting against or vested in him shall survive, except actions for adultery and actions for inducing a spouse to leave or remain ap.rt from him or her spouse.

1. Wright Cases on the Law of Torts, (1967), pp. 654-655.

2. Trustee Act, R.S.O. 1960, C 408.

3. Smallman v. Moori, 1948 SCR 295 (Canada).

4. Trustee Act, R.S.A. 1955, C 346, sections 32-33.

5. R.S.B.C. (1960), C. 3, section 71.

40.10. U.S.A.-

In the U.S.A. in most States statutes have been enacted causing tort1 actions to survive the death of either party. (In many statutes, exceptions are made as to actions for harm peculiarly personal, such as defamation and malicious prosecution). Such statutes are commonly known as "survival Statutes"; they transfer to the estate of the deceased person rights and liabilities which the deceased would had, if he or she had lived.

We may quote the Texas Survival Statute2 as one example of American legislation:-

"All causes of action upon which suit has been or may hereafter be brought for personal injuries, or for injuries resulting in death, whether such injuries be to the health or to the reputation, "or to the person of the injured party, shall not abate by reason of the death of the person against whom such cause of action shall have accrued, nor by reason of the death of such injured person, but in the case of the death of either or both, all such causes of action shall survive to and in favour of the heirs and legal representatives and estate of such injured party and against the person, or persons liable for such injuries and his or their legal representatives, and may be instituted and prosecuted as if such person or persons against whom same accrued were alive."

Virtually all States in the U.S.A. allow survival of actions for damage to property. In slightly more than half the States, actions for such torts as defamation survive3.

1. Keeton & Keeton Cases and Materials on Torts, (1977), p. 195.

2. Tax. Rev. Civ. Star. Ann. 11958) Act, 5525: Survival of Causes of Action, Reproduced in Shapiro Tort and Compensation Law, (1976), p. 478.

3. (a) Gregory & Kalven Cases and Materials on Torts, (1969), p. 522.

(b) Note in (1953) 48 Harvard Law Review 1108.

40.11. Recommendation to delete the exception for assault and personal injuries not causing death.-

So much as regards the legislative developments elsewhere. We now proceed to consider the need for reform in the Indian law. In the first place, we consider the exception in section 306 for assault and other personal injuries to be totally unsound in principle. It is an archaic survival of the rule1 that a personal action dies with the person. The rule itself2 was unsound, being a product more of historical accident than of any deliberate view of policy. Apart from this, justice requires that such causes of action should survive.

"The mere accident of the death of a person ought not to affect the survival of the cause of action, whether the person dying is the wronged person or the wrongdoer. In general, tortious liability arises because of certain harm caused by the tort. A subsequent event ought not to affect a liability that has already accrued because of harm already caused. We, therefore, recommend deletion of the words "assault or other personal injuries not causing the death of the party" from section 306.

1. Para. 40.10, supra.

2. Para. 40.5, supra.

40.12. Interpretation of the expression "personal injury".-

In case, however, our recommendation1 to delete from section 306 the exception regarding personal injury is not accepted, we would like to point out the need for a clarification in the light of certain problems raised by the case law on the subject,2 which we proceed to deal with.

40.13. Conflict of views as to malicious prosecution.-

Case law on section 306 shows that the expression "personal injuries" in the section has proved to be unfortunate and controversial. For example, the question whether the expression includes malicious prosecution, has been the subject of a conflict of decisions. The majority view on the subject would include malicious prosecution within this expression, the reasoning being that the word 'personal' in this section must mean all personal injuries in the commonly accepted use of the word 'personal', and cannot be restricted merely to physical injuries to the person.

Hence a suit for malicious prosecution does not, according to the majority view, survive after death. This view has been taken by the Allahabad,3 Bombay,4 Madhya Pradesh,5 Madras,6 and Patna7 High Courts, which hold that a suit for malicious prosecution is a suit for 'personal injury' within the meaning of section 306.

The Madras cases which discuss the matter at some length have specifically held that the words 'personal injuries' do not mean, bodily injuries only, but include injuries ejusdem generis with both defamation and assault, and therefore include injuries such as those by malicious prosecution.8-10

Relying on earlier cases, it has been held11 in Madras that the maximum 'action personalis moritur cum persona' is a part of the law of this country, except in so far as it has been modified by statute, and that in a suit for malicious arrest, if a defendant dies, the right to sue does not survive.12

1. Para. 40.11, supra.

2. Para. 40.13, et seq., infra.

3. Mehtab Singh v. Hab Lal, AIR 1926 All 610 (612).

4. Motilal v. Harnarayan, ILR 47 Born 716: AIR 1923 Born 406.

5. Ratanlal v. Baboolal, AIR 1960 MP 200.

6. Murugappa v. Ponusami, AIR 1921 Mad 405.

7. Punjab Singh v. Ram Autar Singh, (1919) 52 Indian Cases 348 (Pat).

8. Marwadi v. Samnaji, 31 MLJ 772 (816, 827).

9. Rustomji v. Nurse, ILR 44 Mad 357 (379, 380).

10. Murugappa v. Ponusami, ILR 1921 Mad 405.

11. Arunachalam v. Subramanian, AIR 1958 Mad 142.

12. Cf. D.K. Cassim v. Sara Bibi, AIR 1936 Rang 17.

40.14. Calcutta and Lahore view.-

The Calcutta High Court has, however, held1 that malicious prosecution is not a 'personal injury', and it is not covered by the exception in section 306 and, therefore, the right to sue for it survives. This was also the Lahore view2 which construed the words 'personal injury' as confined to bodily injuries. According to this view, it must be construed with the immediately pre ceding word 'assault'.

1. (a) Krishna Behari Sen v. Corporation of Calcutta, 1904 ILR 31 Cal 993.

(b) Bhupendra v. Chandiramon, AIR 1927 Cal 277.

2. People's Bank of Northern India v. Des Raj, AIR 1435 Lah 705.

40.15. Recommendation to amend section 306-Malicious prosecution.-

This brief resume of the case law on section 306 brings out the conflict of decisions as to the scope of the expression "personal injuries not causing death". Whichever be the correct construction of the present wording of the section, we are of the view that as a matter of policy, the exception for 'personal injuries' in the context of non-survival of causes of action, (if at all any such exception is to be retained),1 should be confined to bodily injury. Justice requires that a cause of action for malicious prosecution should survive.

There are adequate reasons why it should be so. The deceased might, before his death have spent money on defending the prosecution. His estate should, for that reason, be allowed to recover the expenses. Apart from this pecuniary aspect, the harm caused by a malicious prosecution is of such a character that a remedy against it should continue to be available even after the death of the person so prosecuted.

For the reasons stated above, we recommend that if the exception for personal injuries not causing death in section 306 is not to be deleted,2 an amendment should be made to section 306 by defining 'personal injury' as (i) including any disease and any impairment of a person's physical or mental condition,3 and (ii) excluding injury caused by malicious prosecution.

1. See para. 40.11, supra.

2. Para. 40.22, infra and para. 40.11, supra.

3. Cf section 3, Law Reform (Personal Injuries) Act, 1948 (Eng.).

40.16. Survival of actions for defamation.-

We are also of the view that, on principle, causes of action for defamation should survive after death. Whatever be the thinking on the subject in the West at the time when the Act of 1865 (the predecessor of the Succession Act of 1925) was enacted, Indian social notions would rather favour an approach permitting survival of such causes of action.

Reputation, in the eye of the Indian Society, is certainly as precious as property. It may sound odd to quote literary sources in a legal discussion, but the subject-matter is such that it would be proper to draw support from the thinking of great writers. Shakespeare, in Othello,1 has thus described the value of reputation, in contrast with money:

"Good name in man and woman, dear my lord;

Is the immediate jewel of their souls;

Who steals my purse steals trash;

'tis something, nothing;

Twas mine, 'tis his, and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed."

In another play2 Shakespeare has compared reputation to the "purest treasure":-

"The purest treasure mortal tunes afford

Is spotless reputation: that away,

Men are but gilded loam or painted clay."

1. Othello, Act III, scene 3, Line 155.

2. Richard II, Act 1, scene 1, line 177.

40.17. Views expressed in literature.-

By many, reputation is regarded as even more precious than life. Indian literature has beautiful sayings on the subject.1

We may mention that the Universal Declaration of Human Rights2 also recognises the increasing importance of reputation. It provides:-

"Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation, Everyone has the right to the protection of the lawagainst such interference or attacks."

1. E.g. Bhagvadgeeta, Chapter 2, verse 34.

2. Article 12, Universal Declaration of Human Rights.

40.18. Move for reform in England as to defamation.-

It may be mentioned that the principle that the cause of action for defamation should survive has been approved by the Committee recently appointed in England to report on the law of defamation.1

1. Committee on Defamation, Report (1975, March), p. 116, paras. 423 and 5909.

40.19. View of academic writers.-

Editors of several leading books on torts have criticised the exclusion of defamation from the category of causes of action that survive. "Defamation may cause much more harm to the next of kin than an assault.1" the exclusion or defamation from the provisions of the Act of 1934 is hard to justify. Not only does the victim of a libellous attack lose his rights to damages if his defamer dies, but he also loses the opportunity of vindicating his character in a court of law."2

1. Heuston (Edn.), Salmond on Tort, (16th Edn.) (1973), p. 451. foot note 49. Also Salmond Torts, (1981).

2. J.A. Jollowicz and Ellis Lewis (Ed.), Winfield on Torts, (1967), p. 627.

40.20. Recommendation to delete exceptions for defamation.-

For the reasons stated above, we recommend that the word "defamation' should also be deleted from section 306.

40.21. Applicability of section 306 to representative.-

The next point arising out of section 306 concerns the applicability of the section to representatives other than executors and administrators (who are expressly mentioned in the section). There is a conflict of judicial decisions on the subject.

According to the Allahabad High Court,1 the word "executors or administrators" in this section mean persons who are appointed by the courts to administer the estate of the deceased person in the absence of a will or persons nominated by the testator in his will to administrator his estate. The section, therefore, does not give a right to continue proceedings by or against heirs as representing an estate.

According to the Lahore view,2-3 however, there is no reason to hold that the liability of the heirs who have not taken out probate or letters of administration should stand on a different footing.

We are of the view that section 306 should apply to the other persons-the heirs-also, there being no reason for having a different rule as to survival of actions for or against them.

1. Official Liquidators v. Jugal Kishore, AIR 1939 All 1 (3, 4) (Harries, J.).

2. Peoples Bank of Northern India Ltd. v. Des Raj, AIR 1935 Lah 705.

3. Peoples Bank of Northern India Ltd. v. Har Gopal, AIR 1936 Lah 271.

40.22. Revised section 306.-

In the light of the above discussion, we recommend that section 306 be revised as follows:

"306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators or representatives, except in cases where, after the death of the party, the relief sought could no( be enjoyed or granting it would be nuga cory."

Illustration

*** *** *** ***

A sues for divorce. A dies. The cause of action does not survive to his representative."

Alternative Suggestion

If the words excluding "personal injuries" are not deleted, then the amendment1 proposed to define the expression "personal injury" should be carried out, and "representative" should also be added.2 The amendment should3 define 'personal injury' as-(i) including any disease and any impairment of a person's physical or mental condition4 and (ii) excluding injury caused by malicious prosecution.

For the purpose, an Explanation could be added to section 306.

1. Para. 40.11, supra.

2. Para. 40.15, supra.

3. Para. 40.11, supra.

4. Cf. section 3, Law Reform (Personal Injuries) Act, 1948 (Eng.).



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