Sarabjit Kaur vs Jitto Kaur

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated

10.09.2011 (Annexure P/3) passed by learned Additional Civil Judge (Senior Division), Budhlada, whereby application moved by the defendants

for abatement of the suit has been accepted and the suit has been dismissed as having abated on account of the death of Kartar Singh, original

defendant. Brief facts relevant for disposal of the revision petition are that petitioners-plaintiffs filed a suit for compensation of Rs. 3,00,000/-

against one Kartar Singh son of Relu Singh, who had murdered the husband of petitioner No. 1 and father of petitioner Nos. 2 and 3. Kartar Singh

appeared and filed his written statement. Thereafter, issues were framed and plaintiffs led their evidence. Thereafter, during the pendency of the suit

for compensation, Kartar Singh died. His legal heirs were brought on record. The legal heirs of deceased Kartar Singh, after appearance moved

an application that they are not responsible for payment of compensation since Kartar Singh against whom the suit for compensation was filed had

died and the suit stands abated and cannot proceed. The trial Court, after hearing the parties, accepted the said application and dismissed the suit

as abated. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioners vehemently contended that legal heirs of deceased Kartar Singh (original defendant) have rightly been

brought on record. Since the estate of deceased Kartar Singh (original defendant) has been inherited by the respondents/LRs of Kartar Singh, the

recovery can be effected from the estate of Kartar Singh deceased in the hands of respondents. The suit does not abate.

On the other hand, learned counsel for the respondents vehemently opposed the contentions raised by the learned counsel for the petitioners

and contended that since the wrongdoer has died, no compensation can be claimed from the legal heirs qua the estate of the deceased. It is a

personal action and relief sought is connected with deceased Kartar Singh only. Hence, the suit stands abated and the trial Court has rightly

accepted the application and dismissed- the suit as abated.

I have given thoughtful consideration to the rival contentions raised by the learned counsel for the parties.

Before I deal with the contentions raised by the learned counsel for the parties, it would be appropriate to reproduce Section 1A of the Fatal

Accidents Act, 1855 (hereinafter referred to as the ""Act"") which reads as under:--

1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.--Whenever the death of a person

shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party

injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable

to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such

circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so

caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;

And in every such action the Court may give such damages as it may mink proportionate to the loss resulting from such death to the parties

respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses,

including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the

Court by its judgment or decree shall direct.

From the perusal of the above provision, it is clear that the maintainability of action under the Act is not in dispute. The only contention raised by

the learned counsel for the respondents is that suit for compensation is based on personal rights and liabilities and on the basis of the common law

maxim ""actio personalis moritur cum persona'' (a personal right of action dies with the person) suit stands abated. The trial Court has accepted the

application moved by the legal heirs of defendant Kartar Singh (deceased) in this behalf and has declared that the suit abated on this principle. It is,

however, pertinent to mention that aforesaid Section itself specifically rules out the application of the above maxim in the cases of this nature. From

the reading of this section, it is crystal clear that civil liability will be fastened on any person who committed, the wrongful act or actively aided or

abetted its commission and thereby took part directly in committing it From the perusal of this Section, it is also clear that all the actions subsisting

or vested in wrongdoer shall survive as against the estate of perpetuator of the wrongful act and would delve on the person who inherited the estate

of the same. Thus, the maxim ''actio personalize moritur cum persona'' will, not apply.

The aforesaid provision also makes it clear, that on the death of any person, all causes of action subsisting against or vested to him shall survive

qua his estate. The earlier common law rule that ''actio personalis moritur cum persona'' (a personal action dies with the person) has been

specifically excluded. In other words, the principle that it terminates automatically on the death of either claimant or defendant is not applicable. In

the medieval perspective, of course, the old rule made quite a lot of sense as common law was then concerned not so much with reaching a fair

resolution of each dispute, as with preventing extra-judicial resolution through feud or vendetta. From that perspective, the death of one of the

parties constituted the end of the dispute. Under the latest modern rule, the rights of action usually do not the with either of the parties involved,

even if ''personal'' rights are involved, therefore, this is opposite of the medieval rule. The latest rule, therefore, ensures survival of rights of action.

If, soon before death, there was a right to sue, then the same right is available after the death. The effect of death is that all the rights and liabilities

accumulated up to that point are transferred to the deceased''s estate, to be sorted out by the executors or administrators.

The compensation claimed from defendants is for injuriously affecting the family of the deceased. It is not a claim, which the deceased could

have pursued in his own lifetime, because it is for damages suffered not by himself, but by his family after his death. So, the suit is for the benefits of

the wife and other members of the family i.e. children. The compensation is to be paid proportionately keeping in view the injury resulting to the

plaintiffs from the death. The compensation is based on reasonable expectation of pecuniary benefit or benefit reducible to money value. The basic

purpose of the suit is to compensate the family due to death of the husband of petitioner No. 1 and father of petitioner Nos. 2 and 3. Even if the

defendant, who is stated to have died would have been alive, the recovery could not have been effected from him personally, but from his estate

including movable or immovable property. Similar view has been favoured in Division Bench judgment of Hon''ble Madras High Court in P.M.

Balasubramaniam Mudaliar Vs. Marian Rodrigues and Others, . The Division Bench of Hon''ble Kerala High Court in Francis and Others Vs.

Jessy and Another, has also observed that Section 1-A of the Fatal Accidents Act, 1855 rules out the application of common law maxim ''actio

personalis moritur cum persona and accordingly the findings of lower Court were upheld whereby on death of the murderer (defendant) liability to

pay compensation was fixed on the persons who inherited his estate. In such circumstances, since the legal heirs have inherited the property of

deceased Kartar Singh who had died after framing of the issues, then certainly the estate of the deceased is liable which has been inherited by the

respondents-defendants. In view of this, present revision petition is allowed. Impugned order dated 10.09.2011 (Annexure P/3) is set aside and

application moved by the respondents-defendants for abatement of the suit stands dismissed.

The trial Court is directed to proceed with the suit in accordance with law.