1. This is an appeal from a judgment of Stone, J. The question here is whether Section 306, Succession Act, can avail the respondents here who were the plaintiffs in the suit in the trial Court and who claimed damages from defendant alleging that through his negligence he had caused the death of plaintiff 1's husband. During the pendency of the suit the defendant died; and the question in the trial Court and here was whether the action could be continued against the legal representatives of the deceased defendant. If Section 306, Succession Act, is of application then clearly the right to continue the suit against the legal representatives of the deceased defendant survives. This being a case of a fatal accident, without statutory provision such an action could not be brought against the wrong-doer. But, as in England, the Fatal Accidents Act, here (Act 13 of 1855) enables an action for compensation to be brought by the family of a person for loss occasioned to it by his death by actionable wrong. There is another Act - Act 12 of 1855 - which gives the executors a right to sue and be sued in certain cases for wrongs committed in the life-time of a deceased person, those wrongs being ones which occasioned pecuniary loss to the estate of the deceased person. Therefore it is the Fatal Accidents Act (Act 13 of 1855) which gave the plaintiffs in this case the right to sue for damages occasioned by the negligence of the defendant causing the death of plaintiff 1's husband. What is the position when the defendant dies? It is contended here for the appellant that the suit abates. On the other hand, the contention which found favour with our learned brother was that Section 306, Succession Act, allows the suit to be continued even after the death of the defendant, against his legal representatives.
2. One authority quoted in support of the appellant's argument is the decision in Ramchode Doss v. Rukmany Bhoy (1905) 28 Mad. 487, which was approved by a Full Bench of this High Court in Rustomji Dorabji v. Nurse A.I.R. 1921 Mad. 1. It is very fairly admitted that the latter case does not support the appellant's argument in its entirety. That, I think, is obviously so. Both, the Full Bench cases, Rustomji Dorabji v. W.H. Nurse A.I.R. 1921 Mad. 1, and the case which it approves of, viz., Ramchode Doss v. Rukmany Bhoy (1905) 28 Mad. 487, were cases where suits had been brought claiming damages for malicious prosecution. When Section 306, Succession Act, is examined, it will be seen that there are excepted from that section actions for defamation, assault and other personal injuries not causing the death of the party. In both cases referred to it was held that they were actions within the excepted class in Section 306. We are here dealing with the case of personal injuries which caused the death, it is not accurate to say of the party, but caused the death of the husband of plaintiff 1 and we are therefore prima facie not dealing with a case which is excepted from the latter part of Section 306, Succession Act. What does Section 306 do? It deals, first of all, with an existing action. That is what we are dealing with here. The Fatal Accidents Act (13 of 1855) allows such an action and such an action has been brought. It is an action or demand against some one, the wrongdoer. We are not considering here any case of a survival of a right to the plaintiffs because they had a right of action to start with. We are dealing with its survival against a person who has died. The opening words of the section are:
All demands whatsoever (that is wide enough) and all rights to prosecute or defend any action or special proceedings existing in favour of (these are the important words) or against a person at the time of his decease survive to (and here again are the important words) 'and against' his executors or administrators.
3. At the time of the death of the defendant there was an action against him pending. That therefore comes within the earlier words of the section. That action survives, according to the words which next follow, 'against his executors or administrators.' Beading those words of the section and the section itself, it seems to me that that is the natural construction to put upon the section. So far as we are aware, there is no authority upon the point, there being no cases of a similar nature; and in the absence of any authority, in my opinion we should follow the reasoning of the learned trial Judge and the result he has arrived at. Under these circumstances this appeal must be dismissed with costs.
Madhavan Nair, J.
4. I entirely agree.