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R. Kandaswami and ors. Vs. R. Thirugnanasambandam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1970)1MLJ455
AppellantR. Kandaswami and ors.
RespondentR. Thirugnanasambandam and ors.
Cases ReferredBhupendra v. Chandramani
Excerpt:
- .....in the wide sense, and not merely in the sense of a physical injury, the concerned defendant (wrong-doer) died pendente lite. the simple question is, whether the action can be continued against the legal representatives of the wrong-doer with regard to the assets of the wrong-doer that might be in their hands.2. this matter came up for decision in rustomji borabji v. nurse i.l.r.(1921)mad. 357 : 40 m.l.j. 173, and it was held by the full bench that where the defendant dies before judgment is given in a suit for damages for malicious prosecution, or a malicious act, the right to sue does not survive within the meaning of order 22, rule 1, civil procedure code. in other words, the right of suit cannot be continued against the legal representatives of the wrong-doer, with regard to the.....
Judgment:
ORDER

M. Anantanarayanan, C.J.

1. These two revision petitions involve a point of some interest, but upon which, there are clear authorities of this Court available deciding the issue. Very briefly stated, the facts are that, in both these revision petitions, the concerned party was attempting to obtain damages for what was essentially a malicious prosecution, viz., a malicious attempt to obtain the adjudication of the concerned plaintiff as an insolvent, which, for the time being at least, succeeded. In each of these cases, the averment were that the concerned petitioning-creditor was not acting bona fide but was acting with malice and without due cause for the alleged ground relied on as an act of insolvency, in order to get the concerned debtor adjudicated, thereby inflicting considerable injury and humiliation upon him. In each of these cases, which in substance was an action for damages for the injury inflicted by malice on a person, of course, in the wide sense, and not merely in the sense of a physical injury, the concerned defendant (wrong-doer) died pendente lite. The simple question is, whether the action can be continued against the legal representatives of the wrong-doer with regard to the assets of the wrong-doer that might be in their hands.

2. This matter came up for decision in Rustomji Borabji v. Nurse I.L.R.(1921)Mad. 357 : 40 M.L.J. 173, and it was held by the Full Bench that where the defendant dies before judgment is given in a suit for damages for malicious prosecution, or a malicious act, the right to sue does not survive within the meaning of Order 22, Rule 1, Civil Procedure Code. In other words, the right of suit cannot be continued against the legal representatives of the wrong-doer, with regard to the assets of the wrong-doer in their hands. The expression ' personal injuries not causing the death of the party ' in Section 89 of the Probate and Administration Act, which is also to be found in Section 306 of the Indian Succession Act, did not imply injuries to the body merely, ' but all injuries ' which do not necessarily cause damage to the estate of the person wronged.'

3. In laying down the law, on the subject, Kumaraswami Sastriar, J., referred to the maxim ' actio personalis moritur cum persona 'and also to Phillip v. Homfray (1883) 24 Ch.D. 439. The dicta of Lord Bowen were quoted to the effect that the only case in which a remedy for a wrongful act could be pursued against the estate of the deceased person who has done the act, is the case where that estate has been swelled by the proceeds of the injurious or mischievous action. The learned Judge (Kumaraswami Sastriar, J.) said:

When there is nothing amongst the assets of the deceased that in law or equity belongs to the plaintiff and the damages which have been done to him are unliquidated and uncertain, the executor of a wrong-doer cannot be sued merely because...an indirect benefit may have been reaped thereby.

4. There is no doubt whatever that, as far as this Court is concerned the judgment of the Full Bench is binding and that it continues to be the law. In Palaniappa Chettiar v. Raja of Ramnad I.L.R.(1926)Mad. 208 : 50 M.L.J. 34, it was held that a suit for damages for malicious prosecution of the plaintiff abated on his death. That, of course, is the converse case, but it seems to me to be clear that the principle actio personalis moritur cum persona applies with even greater force to the case where it is the defendant who dies pendente lire, and the legal representatives of the wrong-doer are sought to be made answerable to a claim arising from a personal injury committed by the defendant alone. In Mahtab Singh v. Hublal I.L.R.(1926)All. 630, the same principle was affirmed and Rustomji Dorabiji Nurse I.L.R.(1921)Mad. 357 : 40 M.L.J. 173, has been referred to. The text of Phillips v. Homfray (1883) 24 Ch.D. 439, has also been made available, and, the true limit and meaning of the rule that a personal action dies upon a defendant's death has been carefully enunciated in this decision. It is where the estate of the deceased wrong-doer has benefited from the wrongful act, in any manner, in any form of enlargement, that the original action can be continued notwithstanding the death of the defendant.

5. Learned Counsel for the respondents has largely relied upon a passage in Paton's jurisprudence, 3rd edition, page 355, wherein, the author observes that the common law rule actio personalis moritur cum persona was modified by a series of exceptions and left only as almost a vestige by the Law Reform (Miscellaneous Provision) Act, 1934. But, I am unable to follow why that state of affairs, which prevails in the United Kingdom by virtue of a specific enactment, should be brought into the picture here and applied to the present situation. In Bhupendra v. Chandramani : AIR1927Cal277 , a Division Bench of the Calcutta High Court in one part of the judgment observed that the doctrine of actio personalis moritur cum persona is not part of the law in India, and, in any event, the learned Judges felt inclined to hold that a cause of action for negligence, in the circumstances of that particular case, fell clearly within the rule of survival. But, in Arunachala v. Subramania : AIR1958Mad142 , Rajamannar, C.J., referred to Bhupendra v. Chandramani : AIR1927Cal277 , in the particular context of the discussion of the actio personalis moritor cum persona rule, and pointed out that the statement of Page, J., appeared to be very wide, and that there were qualifying passages elsewhere.

6. The true construction, obviously, is that already enunciated by our Full Bench, to which I have referred. I have carefully gone through the pleadings, in these two cases, and, substantially they amount to averments of considerable personal injury inflicted on each plaintiff by the malicious act of obtaining an adjudication in insolvency. The damages are not related, per se, to any injury to the estate of the person wronged, and, on the contrary, the damages are broadly claimed, without any specific demarcation related to any property, loss, as damages for personal injuries sustained by the malicious prosecution. The Full Bench decision is the authority for this view that such an injury need not at all be a bodily injury and hence, I am of the opinion that these suits would fall within the excepted matters in Section 306 of the Indian Succession Act. In any event, there is not a little of evidence in support of the criterion laid down by Kumaraswami Sastriar, J., in the Full Bench decision referred to.

7. Even if the vesting of the estate in the Official Receiver, for sometime, caused some conceivable injury, which also affected the property of the person wronged, there is not the slightest averment that a dividend was declared or that anything was done by which the wrong doer materially benefitted or by which the assets of the wrong doer were enhanced. Had there been such evidence, or, even if the enhancement or enlargement has been minimal or marginal, I would have been inclined to hold that, on facts of that character, there may be a possibility of continuing the action against the legal representatives. But, there is not the slighest iota of such evidence, and hence, following the Full Bench and the case law relevant to this respect, I am of the view that, on the facts of these two cases, the action cannot be continued against the legal representatives of the deceased defendant either by the plaintiff or by his legal representatives. I must add that in one of the two cases, it is reported that the plaintiff is also dead.

8. The final question that has been agitated is whether the matter should not be left to the trial of the suit, or suits, after impleading the representatives or whether it should be decided now under Order 22, Rule 1, Civil Procedure Code. I think that there will be considerable uncertainty if the matter is not now decided, and, I am unable to see any justification for postponement of the decision. Order 22, Rule 1, Civil Procedure Code, is very clear that if the right to sue does not survive, or the right to be sued does not survive, the suit abates either on the death of the plaintiff or the defendant, as the case may be. Since the suits abate, in these cases, there can be no justification for postponement of the decision.

9. I allow the revisions, hold, that the suits abate, and dismiss them accordingly. In the particular circumstances of these cases, parties will bear their own costs.


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