TaxTMI 
TaxTMI 
TaxTMI 
1920 (12) TMI 4
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.... All demands whatsoever, and all rights to prosecute or defend any suit or any other 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 Penal 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. 2. There are two possible constructions, and each has commended itself to an Indian Bench. The Calcutta High Court has held that the words ' personal injuries not causing the death of the party' should be taken to mean 'bodily injuries of a higher degree than assault.' The Bombay Court, and more than one Judge of this Court, has interpreted ' personal injuries ' as meaning ' wrongs to the person which do not necessarily cause damage to the estate of the person wronged.' In that case, the section would practically reproduce the maxim of the English Common Law--actio personalis moriter cum persona--with its statutory modifications. 3. With grea....
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....al line of demarcation between what it is suggested to have been retained and what was rejected, we would gladly accept the view that only part was retained; but we are unable to do so. 5. In the result, we hold that the suit abates as against the 1st defendant. C.V. KUMARASWAMI SASTRI, J. 6. The question referred to us for decision is "If the defendant in a suit for malicious prosecution dies more than a year after the prosecution in question and before judgment is given in the suit does the right to sue survive within the meaning of Order 22, Rule 1 so as to prevent the abatement of the suit ?" 7. The maxim 'actio personalis moritur cum persona' is with certain limitations as old as the English Law, and the maxim has been inflexibly applied to actions essentially based on tort. The rule of Common Law is that you could not sue executors for a wrong committed by the testator for which you could only recover unliquidated and other damages. In Phillips v. Homfray (1883) 24 Ch. D. 439 Lord Bowen who delivered the judgment of Lord Justice Cotton and himself deals fully with the application of the maxim and its limitations. He observes (at page 454) : The only case i....
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....ay during their life and recover damages in like manner as their testators if they were alive. As observed by Bramwell, J. in Twycross v. Grant (1878) 4 C.P.D. 45 the act has been construed as extending to all torts except those relating to free holds and those where the injury done is of a personal nature. As regards real and personal estate the Civil Procedure Act of 1833 allowed an action of trespass or trespass in the case to be maintained by executors of an administrator of a deceased person for any injury to his real estate committed in his life-time for which he might if alive have maintained an action if the wrong was committed within six months before his death. The Act provides for no remedy for an act committed to the person such as false imprisonment. 9. When a tort resulted in the death of a person there was no remedy till the Fatal Accidents Act (1846) commonly known as Lord Campbell's Act gave a right of action by executors or administrators for the benefit of the relatives specified in the Act. In India the Fatal Accidents Act, XIII of 1855 provides for such cases. The cause of action was a new one arising upon and out of a person's death and does not rea....
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....s v. Ram Dass Mathura Dass I.L.R.(1889) B. 677 the plaintiffs sued to recover damages for wrongful arrest and malicious prosecution. The defendant died pending suit and the plaintiff sought to continue the suit against the executors of the deceased or his legal representatives. The objection taken was that the suit abated. It was held by Haridas and Parsons, JJ., that Act XII of 1855 did not apply as it related only to suits brought against the heirs of a deceased person for wrongs committed by him in his lifetime. The decision was followed by Subramania Iyer and Benson, JJ. in Ramachendra Doss v. Rukmany Bayee I.L.R. (1906) M. 487 . The suit was one for damages for malicious prosecution and the defendant died pending suit. The plaintiff applied for leave to bring her executors on record as legal representatives and Moore, J. held that the suit abated. Reliance was placed on appeal on the second clause of Section 2 of Act XII of 1855, but the learned Judges observed : " A similar argument was urged in Haridas Ram Das v. Ram Dass Mathura Doss I.L.R.(1889) B. 677 followed by the learned Judge and was overruled. We agree with the Bombay High Court that Clause 2 of Section 1 of the Act....
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....t cannot be said that when the legislature enacted the Succession Act of 1865 or the Probate and Administration Act of 1881 it had not before it the earlier enactment of Act XII of 1855. Though there was no exception as regards causes of action in Section 1 Clause 2 of the Act of 1855 which would cover suits excepted by the Act of 1885 and 1881 it was thought necessary to make some exceptions in the late Acts. It would be unreasonable to suppose that the legislature out of the large number of personal injuries actionable in law made a random selection of defamation on the one side and assault and other physical injuries not resulting in death on the other and left several personal wrongs more serious than simple assault unprovided for. If the words " other personal injuries not causing the death of the party "be read ejusdem generis only with assault the executors or administrators of a person who wrongfully restrains another (without assaulting him) for a few minutes would be liable to be proceeded against in the suit while those of one who committed grievous bodily harm not severe enough to cause death would escape. It should be remembered that assault as defined in the Indian Pe....