Survival of Right to Sue Passes to Legal Representatives of Deceased Litigant

Source: Supreme Court

Why in News? 

A Division Bench of the Supreme Court of India, comprising Justice JK Maheshwari and Justice AS Chandurkar, in Kumud Lall v. Suresh Chandra Roy (Dead) Through LRs and Others (2026), summarised the governing principles on the survival of the right to sue upon the death of a party to a proceeding, and its continuation by or against the legal representatives of the deceased. 

• The Court held that the traditional common law maxim actio personalis moritur cum persona — a personal action dies with the person — is not absolute in India and stands modified by several statutes. It further held that the question of survivability of a claim must be assessed as on the date of death of the party, with personal injury claims abating while claims relating to pecuniary loss or the estate of the deceased surviving to legal representatives.

What was the Background of Kumud Lall v. Suresh Chandra Roy (2026) Case? 

• The case arose in the context of a consumer complaint alleging medical negligence against a doctor who passed away during the pendency of proceedings. The question before the Supreme Court was whether the claim could be continued against the legal heirs and representatives of the deceased doctor. 
• The central legal issue involved the interplay between: 
  • The common law maxim actio personalis moritur cum persona, which provides that personal actions die with the person. 
  • Section 306 of the Indian Succession Act, 1925, which governs the transmission of rights and liabilities to legal representatives. 
  • Order XXII of the Code of Civil Procedure, 1908, which provides for the substitution of parties upon the death of a litigant. 
• The Court took the occasion to authoritatively summarise the principles governing survival of the right to sue, in order to resolve the tension between these provisions.

What were the Court's Observations? 

• On Modification of the Common Law Maxim: The Court held that the maxim actio personalis moritur cum persona has been significantly modified in India by statutory instruments including the Fatal Accidents Act, 1855, the Legal Representatives' Suits Act, 1855, and the Indian Succession Act, 1925. The maxim, in its absolute common law form, does not operate in the Indian legal system. 
• On Institution of Fresh Proceedings: The Court clarified that legal representatives of a deceased person may institute fresh proceedings or be proceeded against afresh, in terms of the Legal Representatives' Suits Act, 1855 or Section 306 of the Indian Succession Act, 1925, subject to applicable statutory limitations under succession law. 
• On Section 306 as the Governing Provision: The Court held that whether a proceeding survives the death of a party is a matter of substantive law, governed by Section 306 of the Indian Succession Act, 1925. Procedural provisions alone cannot determine survivability. 
• On Harmonious Construction of Order XXII and Section 306: The Court held that Order XXII of the CPC, which enables substitution of parties upon death, must be harmoniously construed with Section 306 of the Indian Succession Act. Order XXII cannot expand the scope of claims that are survivable under substantive law. 
• On the Relevant Date for Assessment: The Court held that the question of whether the right to sue survives must be assessed as on the date of death of the party — not at any subsequent stage of the proceedings. 
• On Personal Injury vs. Estate Claims: The Court drew a clear distinction between the two categories of claims. Personal injury claims — such as those for pain, suffering, or defamation — abate upon the death of the claimant. However, claims relating to pecuniary loss or the estate of the deceased survive and may be pursued by or against the legal representatives. 
• On the Facts of the Present Case: Applying these principles, the Court held that the legal heirs of the deceased doctor could be proceeded against under the Consumer Protection Act in respect of the medical negligence claim, as it involved a claim against the estate rather than a purely personal action.

What are the Key Legal Provisions Involved? 

Section 306 — Indian Succession Act, 1925 

Section 306 - Survival of Demands and Rights of Action: 

General Rule: 

• All demands and all rights to prosecute or defend any action or special proceeding that exist in favour of or against a person at the time of his death survive to and against his executors or administrators. 

Exceptions — Claims that Do NOT Survive: 

• Causes of action for defamation. 
• Causes of action for assault (as defined under the Indian Penal Code, 1860). 
• Other personal injuries not causing the death of the party. 
• Cases where, after the death of the party, the relief sought could not be enjoyed, or granting it would be nugatory (of no effect). 

Illustrations: 

• Illustration (i): A passenger is severely injured in a railway collision due to an official's negligence but dies before filing any action. The cause of action does not survive to his legal representatives — as it was a personal injury claim that did not cause death. 
• Illustration (ii): A files a suit for divorce and dies during its pendency. The cause of action does not survive — as the relief of divorce is personal and could not be enjoyed after death. 

Key Takeaway: 

The section lays down that survivability of a legal claim is the rule, and its extinction is the exception. Only purely personal claims — relating to injury, defamation, assault, or relief that becomes infructuous upon death — are extinguished. All other rights and liabilities pass to the legal representatives of the deceased.

What is Order XXII of CPC, 1908? 

Order XXII of CPC — Death, Marriage, and Insolvency of Parties: 

• Order XXII contains 12 Rules. Rules 1–6, 9, and 10A deal with death of parties; Rule 7 with marriage; Rule 8 with insolvency; Rule 10 with assignment of interest; and Rules 11–12 with application to appeals and execution proceedings.