Rustomji Dorebji vs W.H. Nurse and Parthasarathy Naidu

Ayling and Coutts Trotter, JJ.—The sole question we have to decide is what is the true construction of Section 89 of the Probate and

Administration Act of 1881. Mr. Hakim at one time tried to argue that Act XII of 1855 must be deemed not only to give a fresh cause of action

for and against representatives of those who had committed or suffered civil wrongs, but also by necessary implication to have prohibited the

abatement of suits commenced by the wronged against the wrong-doer during the life-time of both by reason of the death of either party. It may

have been an omission of the legislature but a close scrutiny of the text makes it reasonably clear that no provision was made in that enactment for

the case of a suit already pending when one of the parties dies. We are thus left to the construction of Section 89 of the Act of 1881 which runs as

follows:

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.

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.

With great reluctance, we feel compelled to accede to the latter view. The principle that is involved in the maxim is one that obviously works

great injustice and its adoption into the common law has been regretted by eminent English Judges. The draftsman of the statute of 1881 could

easily have drafted a section which abolished the rule and all its consequences, and preserved causes of action in tort nowithstanding the death of

either the wronged or the wrong-doer. That he certainly did not do, for in express terms he excludes from preservation causes of action for assault

or defamation. If it was not intended to abolish the maxim, how much of it was intended to be preserved? On the appellant''s construction, there

was intended to be preserved a wholly arbitrary selection of the possible cases, guided by no logical principle whatever. It is impossible to see why

defamation should be in one category and malicious prosecution and false imprisonment in the other.

We are therefore driven to the conclusion that the Act must be supposed to have envisaged a logically coherent class of causes of action, and

that result can only be achieved by construing '' personal injuries '' as meaning not '' injuries to the body '' merely, but injuries to the person in

Blackstone''s sense other than those which either cause death or tangibly affect the estate of the deceased injured person or cause an accretion to

the estate of the deceased wrong doer. In effect, we think that the words which we have to construe are ejusdemgener is not merely with the last

preceding word ''assault '', but with the two preceding words '' defamation '' and '' assault.'' Sadasiva Iyer, J. who has taken the opposite view,

thinks that the Judges who felt constrained to differ from the conclusion of the Calcutta High Court were influenced by a superstitious veneration of

the English common law ""rule. We venture to suggest that the more proper object of his criticism would be the draftsman of the Act of 1881, who

with a clear field before him, not only abstained from boldly abolishing"" the rule of the English Common Law, which. Sadasiva Iyer, J. justly

characterises as ''barbarous,'' but reproduced it in language so ambiguous that while it was certain that he had retained it in part, it was uncertain

whether he had retained it as a whole. If we could see any logical 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.

In the result, we hold that the suit abates as against the 1st defendant.

Kuntarasivami Sastri, J.

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 ?

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 in which, apart from the question of breach of contract express or implied, a remedy for wrongful act can be pursued against the estate of a

deceased person who has done the act, appears to be those in which property or the proceeds or value of property belonging to another have

been appropriated by a deceased person and added to his own estate or moneys. In such cases'' whatever the form of action, it is in substance

brought to recover property or its proceeds or value and the amendment could be made to suit in form as well as in substance. In such cases the

action arising out of a wrongful act does not die with the person. The property or the proceeds or value which, in the lifetime of the wrongdoer,

could have been recovered from him can be traced after his death to his assets and recaptured by the rightful owner then. But it is not every

wrongful act by which the wrongdoer indirectly benefits that falls under this head if the benefit does not consist in the acquisition of property or its

proceeds or value. 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 executors of a wrongdoer cannot be sued merely because it was worth the wrongdoer

while to commit the act which is complained of and an indirect benefit may have been reaped thereby. After giving two illustrations of the

distinction he observes:- "" This line of demarcation has drawn itself in conformity with the classifications of forms of action known to English Law.

As long as the maxin adio personalis moritur cum persona is preserved by the law of this cpuntry, the line drawn is neither inconvenient nor

unreasonable. If every wrongful act that was attended consequentially and indirectly with advantage to the wrong doer or his pocket were to

warrant an action against executors it would be impossible to know whether executors were liable or not and the maxim would in fact become a

source of litigation. We have not now to consider the policy of the maxim. It is part of the law and while it is so ought not to be fritted away.

As regards actions brought by personal representatives the law was considerably altered by 4 Ed.3` Ch. 7. The Act provides that executors

shall have an action against trespassers in respect of goods and chattels of their testators carried away 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.

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 really affect the

maxim.

Turning to the law as applied in India, it is clear that the common law rule was applied in all its strictness by Courts except where a remedy

was given to or against the executors, administrators or personal representatives by statute law. The first legislative enactment was the Legal

Representatives Suits Act, XII of 1855. The preamble states that it is expedient to enable executors, administrators or representatives in certain

cases to sue and be sued in respect of certain wrongs which, according to the present law do not survive to or against such executors,

administrators or representatives. The applicability of the maxim to India is thus recognized. Section 1 enacts that an action may be maintained by

the executors, administrators or representatives of a deceased person for any wrong committed in the lifetime of such person which has occasioned

pecuniary loss to his estate for which wrong an action might have been maintained by such person provided that the wrong was committed within

one year before his death. The damages so recovered were to be part of the personal estate of the deceased. A right of action was given against

the executors, administrators, heirs or representatives of a deceased person for any wrong committed by him in his lifetime for which he would

have been subject to action if such wrong was committed within one year before his death. Section 2 provides that no action commenced under

the provisions of the Act shall abate by reason of the death of either party but may be continued by or against the executors, administrators or

representatives of the party deceased, provision being made for the plea of want of assets.

It will be seen that Clause 2 of Section 1 of the Indian Act of 1855 is wider in its scope than the English Civil Procedure Act of 1833. Suits by

executors etc., have to be for an injury to the real estate of the deceased person and suit against executors, etc., are in respect of a wrong

committed in respect of another''s property - real or personal. The period of limitation is six months and the form of action was to be an action of

trespass or trespass in the case.

The remedy given by the Indian Act bf 1855 is, however, confined to suits brought subsequent to the death of the person and did not enable

suits brought by him to be continued after his death. In Hari Dass Ram Dass 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 ILR (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 XII of 1855 does

not apply to an action commenced against the defendant in his lifetime, but only to actions commenced against the executors or other

representatives of a deceased wrongdoer.

With all respect I am unable to agree with Sadasiva Iyer, J. that Section 2 enables the continuance of suits already filed as the section distinctly

states that "" no action commenced, under the provisions of the Act shall abtate."" The learned Judge and Napier, J. took the opposite view in

Subramania Iyer v. Venkatrama Iyer (1914) 31 I.C. 4 where they held that Act XII of 1855 only applied to suits filed by the legal representatives

and not to suits filed by the deceased and sought to be continued by them. If the legislature intended that suits already filed were to be continued by

the executors, administrators or legal representatives, apt words would have been used in the Act. The Preamble refers only to suits to be filed

after death and if suits already instituted were intended to be covered by the Act, Section 2 would have referred to action commenced by the

deceased or by his representatives under the provisions of Section 1.

Though the legislature went much further than the English Act of 1833 when it enacted Clause 2 of Section 1 of Act XII of 1855 and gave a

fresh right of suit it confined demands and rights to prosecute or defend suits or special proceedings by executors or administrators in the

Succession Act of 1865 to suits other than 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 also cases where the death of the party rendered the granting of any relief useless. As the Succession Act

did not apply to Hindus, Mahomedans or Budhists a similar provision was also enacted in the Probate and Administration Act 1881. Section 89 of

which runs as follows:

All demands whatever and all rights to prosecute or defend any suit or 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 when after the ''death of the party the relief sought could not be

enjoyed or granting it would be nugatory.

It 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 assualt 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 Penal Code includes the most trivial forms of personal violence and no reasonable explanation

can be given for the legislature picking out some offences and excluding others some of which are of a serious nature. It would have been easy to

use the word physical injuries instead of the word personal injuries or to add the word "" and "" before assault if only acts of personal violence were

intended to be excluded.

The words ""personal injuries"" represent a classification well known to law and in ordinary legal phraseology are not confined to merely physical

injuries. Black-stone in dealing with private wrongs observes "" personal acts are such whereby a man claims a debt or personal duty or damages in

lieu thereof and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be

founded on contracts and the latter upon torts or wrongs. Of the former nature are all actions upon debt or promises; of the latter all actions for

trespass, nuisances, assaults, defamatory words and the like."" He then proceeds to deal with injuries which affect the personal security of

individuals and divides them into injuries against their lives, their limbs, their bodies, their health or their reputation and in the last class includes both

defamation and malicious prosecution (Bk. III Clause 8). He divides all injuries into injuries without force or violence as slander and others coupled

with force or violence as batteries, As pointed out by Pollock and Maitland in the History of the English Law and by Street in his work on the

Foundations of Legal Liability (Volume I, page 327) malicious prosecution was regarded only as an aggravated form of defamation.

Bearing in mind this classification and having regard to the fact that in the English Civil Procedure Act of 1833 the remedy was confined to

injuries to the real or personal estate of the deceased and not to purely personal wrongs as understood in English Jurisprudence and that the same

limitation is placed by Section 1, Clause 1 of Act XII of 1855 and the anomalies that would result if the legislature picked out arbitrarily some

personal wrongs and excluded them and desired to include at the same time wrongs of a much less serious character, I think the intention of the

legislature in 1865 and 1881 when the Succession and the Probate and Administration Acts were passed was to assimilate the law in India as far

as possible to what it was in England and to exclude from the operation of Section 268 of the Succession Act and 89 of the Probate and

Administration Act suits which by the law as administered in England would fall under the maxim actio personalis moritur cum persona. If the

words were simply all personal injuries not causing the death of the party and omitted defamation or assault it may be argued that personal meant

only physical and that causes of action for defamation and other similar injuries survived. The legislature took two types of personal injuries one

physical and the other not and used them by way of illustration of what it meant to exclude. In this view the words other personal injuries; not

causing the death of the party must be read with defamation and assault.

There has been a conflict of authority on the question referred. In Punjab Singh v. Ram Autar Singh (1919) 4 P.L.J. 676 it was held by the

Patna High Court that the words other personal injuries not causing the death of the party in Section 89 of the Act are ejusdem generis not only

with assault but also with defamation and, include malicious prosecution. The same view has been held by the Madras High Court in Marwadi

Mothiram (died) and Others Vs. M. Samnaji (died) and Others, . A contrary view was taken in Krisina Behari Sen v. The Corporation of Calcutta

ILR (l904) , C. 993 where the learned Judges differed from Justice Henderson the trial Judge and held that to use the words other personal injuries

not resulting in death in connection with an action for defamation or malicious prosecution would be straining the language used by the legislature

and. placing on it an unnatural and forced construction. In Punjab Singh v. Ram Autar Singh (1918) 4 P.L.J. 676, Dass, J. who was a member of

the Calcutta Bar for several years observes that in his experience the case has never been followed subsequently in the Calcutta High Court.

I would follow Punjab Singh v. Ram Autar Singh (1918) 4 P.L.J. 676 and Marwadi Mothiram (died) and Others Vs. M. Samnaji (died) and

Others, and hold that a suit for damages for malicious prosecution abates.