Holding

The right to sue against a deceased defendant survives for claims against the estate, allowing the legal heirs to be impleaded, while purely personal injury claims abate under Section 306 of the Indian Succession Act, 1925.

Summary

The husband of a patient filed a consumer complaint under the Consumer Protection Act, 1986 alleging medical negligence by Dr. P.B. Lall, which was partly upheld by the District Forum awarding compensation. The State Consumer Disputes Redressal Commission set aside the award, and the matter proceeded to the National Consumer Disputes Redressal Commission (NCDRC) for revision. During the pendency of the revision, Dr. Lall died, and the complainant sought substitution of the doctor’s legal heirs, which the NCDRC allowed. The heirs applied to be dropped from the proceedings, but the NCDRC dismissed those applications. The Supreme Court examined whether the right to sue survives the death of a defendant in a medical negligence case and whether the heirs can be impleaded, interpreting the interplay of the Consumer Protection Acts, Order XXII of the CPC, and Section 306 of the Indian Succession Act, 1925. It held that the right to sue does survive against the estate for claims that affect the estate, while purely personal injury claims abate. Consequently, the legal heirs can be impleaded, and liability will be determined based on the pleadings and evidence. The Court set aside the NCDRC orders and remitted the matter to the NCDRC for adjudication within six months.

Issues considered

Whether the right to sue under the Consumer Protection Acts survives the death of the opposite party (the doctor) during pendency of appellate proceedings.
Whether the legal heirs of a deceased doctor can be impleaded and held liable for alleged medical negligence.
To what extent the liability of the legal heirs can be pursued, considering the exceptions under Section 306 of the Indian Succession Act, 1925.

Legislation cited

Code of Civil Procedure, 1908s. Order XXII Rule 11, s. Order XXII Rule 2, s. Order XXII Rule 4
Consumer Protection Act, 1986s. 13(7), s. 2(b)(v)
Consumer Protection Act, 2019s. 2(5)(vi), s. 38(12)
Indian Succession Act, 1925s. 306
Legal Representatives' Suits Act, 1855

Headnote

Issue for Consideration Issue arose whether, upon death of the doctor during pendency of proceedings at appellate stage, the legal heirs can be impleaded and held liable for the alleged act of medical negligence of the deceased doctor, and if yes, then to Act, 1986 – ss.13(7), 2(b)(v) – Consumer Protection Act, 2019 – ss.38(12), 2(5)(vi) – Succession Act, 1925 – s.306 – Legal Representatives Suits Act, 1855 – Code of Civil Procedure, 1908 – Ord. 22, r.4 – Continuation of ‘right to

Subjects

actio personalis moritur cum personaRight to sueMedical negligenceSubstitution of legal heirsCause of actionLegal representativeDeath of the doctor during pendency of proceedings at appellate stageImpleading of legal heirsContinuation of ‘right to sue’Deficiency in service by the doctor while performing eye surgeryLoss of visionCompensationAbsence of expert evidenceHaryana Law CommissionLaw Commission of India, 178th report

Judgment

[2026] 5 S.C.R. 301 : 2026 INSC 443

Kumud Lall
v.
Suresh Chandra Roy (Dead) Through Lrs and Others
(Civil Appeal No(s). 6893-6894 of 2026)
04 May 2026
[J.K. Maheshwari* and Atul S. Chandurkar, JJ.]

Issue for Consideration
Issue arose whether, upon death of the doctor during pendency of
proceedings at appellate stage, the legal heirs can be impleaded
and held liable for the alleged act of medical negligence of the
deceased doctor, and if yes, then to what extent.

Headnotes†
Consumer Protection Act, 1986 – ss.13(7), 2(b)(v) – Consumer
Protection Act, 2019 – ss.38(12), 2(5)(vi) – Succession Act,
1925 – s.306 – Legal Representatives Suits Act, 1855 – Code
of Civil Procedure, 1908 – Ord. 22, r.4 – Continuation of ‘right
to sue’ – Death of the alleged medically negligent doctor –
Impleading of legal heirs – Complaint against the doctor by
the husband alleging deficiency in service by the doctor while
performing eye surgery of his wife, resulting in loss of her
vision – District Forum partly allowed the complaint holding
the doctor negligent for deficiency in service, and awarded
compensation – Appeal by the complainant-husband and the
doctor – State Commission dismissed the appeal filed by
the complainant, however allowed the appeal of the doctor
holding that in absence of expert evidence to substantiate
the allegation of medical negligence leading to loss of vision,
holding the doctor guilty for the same not sustainable – During
the pendency of the revision petition, the doctor passed away –
Complainant-husband filed application for substitution of legal
heirs (wife and son) of the doctor, which was allowed – Legal
heirs-appellant filed applications u/Ord.22 rr.1 and 2 CPC,
praying to drop their names from the proceedings, which was
dismissed – Correctness:

* Author
302 [2026] 5 S.C.R.

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Held: The 1986 Act with 2019 Act, by expressly providing for
legal representative for complainant/consumer, the legislative
intent is clear, that the claim of the complainant shall not
automatically perish upon his death and shall survive through
his legal heirs – Legal representative of the deceased can
institute a fresh suit or be sued afresh in terms of the 1855 Act
or in terms of s.306 – Continuation of suit by or against the
legal representative of the deceased has to be in terms of s.306
(substantive law) – Continuation of ‘right to sue’ u/Ord.XXII r.2 r/w
r.4 is to be seen on the date of death – Generally, all rights and
liabilities to maintain a suit are carried to the legal representative
u/s.306 – However, when adjudicating claims under 1st exception
to s.306, personal injury claims abate, while claims for or against
the estate of the deceased survive – In view thereof, death of
the alleged medically negligent doctor, his/her legal heirs can
be impleaded and brought on record – Extent of liability will be
determined based on the pleadings and evidence presented –
Complainant had succeeded before the District Forum and was
awarded compensation – However, when taken in appeal by
doctor, the State Commission allowed the same and set-aside
the award – Aggrieved, the complainant preferred revision
before National Commission, pending which, the doctor passed
away – As borne from records, ‘right to sue’ if any subsists qua
claims against the estate on the death of the opposite party in
terms of s.306 r/w Ord. XXII rr.2 and 4 – In order to establish the
claims, the National Commission duty bound to adjudicate the
negligence aspect, if any by the deceased doctor and resultantly
adjudicate the surviving claims – Question as to what claim can
be attributed to the accretion of the deceased defendant’s estate
needs to be carefully analyzed by NCDRC, depending upon
pleadings and proof brought before the Court – Claimant has the
duty to first establish the negligence of the deceased doctor and
the claims on the estate recoverable as per s.306 – Impugned
order confuses claims attributable to estate and holds that any
adjudication on merits can be recoverable from the estate of
the deceased doctor – Rather, the Court has to only look at
claims which are maintainable as against the estate, rather than
adjudicating personal claims which have elapsed with the death of
the doctor – Matter remitted to NCDRC to be adjudicated within
[2026] 5 S.C.R. 303

Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

the stipulated period – Impugned orders set aside. [Paras 35,
39, 40, 51, 56, 59, 64-72]
Maxim – Actio personalis moritur cum persona – Explained.
[Paras 25-27, 64]

Case Law Cited
Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair
[1985] Supp. 3 SCR 805 : (1986) 1 SCC 118; M. Veerappa v.
Evelyn Sequeira [1988] 2 SCR 606 : (1988) 1 SCC 556; State
of Punjab v. Gurdev Singh [1991] 3 SCR 663 : (1991) 4 SCC 1;
Indian Evangelical Lutheran Church Trust Association v. Sri Bala
& Co. [2025] 1 SCR 542 : 2025 INSC 42; Dahiben v. Arvindbhai
Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives
[2020] 5 SCR 694 : (2020) 7 SCC 366; Vinayak Purshottam
Dube v. Jayashree Padamkar Bhat [2024] 3 SCR 127 : (2024) 9
SCC 398 – referred to.
G. Jayaprakash v. State of Andhra Pradesh, AIR 1977 (AP) 20;
Haridas Ramdas v. Ramdas Mathuradas (1889) I.L.R. 13 Bom;
Rustomji Dorabji v. W.H.Nurse, AIR 1921 Mad 1; Neeraj Amarnath
Dora v. Nandan Hospital and Others, II 2011 CPJ 171 (NC); Balbir
Singh Makol v. Chairman, M/s Gangaram Hospital and Others,
2001 (1) CPR 45 (NC) – referred to.
Hambly v. Trott, 1776 1 COWP 371; Phillips v. Homfray (1883) 24
Ch.D., 439; Cooke v. Gill (1873) LR 8 CP 107; Letang v. Cooper
[1965] 1 QB 232 – referred to.

Books and Periodicals Cited
Percy H. Winfield, ‘Death as Affecting Liability in Tort’, Columbia Law
Review, Vol. 29, No.3 (Mar., 1929), pp. 239-254; P.J. Fitzgerald,
Salmond on Jurisprudence, p. 238 (Universal Law Publishing Co.
Pvt. Ltd., 12th Edn., 1966); Whitley Stokes, Commentary on Indian
Succession Act, 1865, R. C. Lepage and Co., pg. 170 – referred to.

List of Acts
Consumer Protection Act, 1986; Code of Civil Procedure,
1908; Succession Act, 1925; Consumer Protection Act, 2019;
Civil Procedure Act, 1833; Administration of Estates Act, 1925;
Employer’s Liability Act; Workman’s Compensation Act, 1897;
304 [2026] 5 S.C.R.

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Workman’s Compensation Act, 1906; Fatal Accidents Act, 1846;
English Law Reform (Miscellaneous Provisions) Act 1935;
Indian Succession Act, 1865; Fatal Accidents’ Act, 1855; Legal
Representatives’ Suits Act, 1855; Probate and Administration Act,
1881; Kerala Torts (Miscellaneous Provisions) Act, 1976.

List of Keywords
Haryana Law Commission; Law Commission of India, 178th report;
actio personalis moritur cum persona; Right to sue ; Medical
negligence; Substitution of legal heirs; Cause of action; Legal
representative; Death of the doctor during pendency of proceedings
at appellate stage; Impleading of legal heirs; Continuation of ‘right
to sue’; Deficiency in service by the doctor while performing eye
surgery; Loss of vision; Compensation; Absence of expert evidence.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s).
6893-6894 of 2026
From the Judgment and Order dated 24.05.2018 and 26.05.2010
of the National Consumers Disputes Redressal Commission, New
Delhi in MA No. 324 of 2011 and MA No. 1214 of 2009.
With
Civil Appeal No(s). 6895-6896 of 2026.

Appearances for Parties
Raghenth Basant, Sr. Adv./Amicus Curiae, Akshay Sahay,
Ms. Bagavathy Vennimalai, Ms. Kaushitak Sharma, Ms. Hima
Bhardwaj.
Advs. for the Appellant(s):
Akshay Sahay, Ms. Bagavathy Vennimalai, Ms. Kaushitak Sharma,
Ms. Hima Bhardwaj, Ms. Sarvshree, Ms. Somyashree.
Advs. for the Respondent(s):
Shyam Padman, Sr. Adv., Umesh Sinha, Gunnam Venkateswara
Rao, Ms. Shefali, Anil Kumar Singh, Ms. Himani Chhabra,
Ms. Devyani Mahra, Jaimon Andrews, Ms. Piyo Harold Jaimon,
Ms. Asitwathi Shyam, Ms. Firdousecp, Naresh Kumar.
Petitioner-in-person.
[2026] 5 S.C.R. 305

Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

Judgment / Order of the Supreme Court

Judgment

J.K. Maheshwari J.

1. Leave granted.
2. The present appeals arise out of the challenge preferred by the legal
heirs1 of the alleged medically negligent doctor (deceased now), to
the order2 passed by the National Consumer Dispute Redressal
Commission, New Delhi (in short ‘NCDRC’), thereby allowing
the application filed by the complainant (deceased now) seeking
substitution of the legal heirs of the doctor, pending revision and
directing them to be brought on record. On filing review, it was also
dismissed3 observing that the legal heirs shall be liable to satisfy the
decretal amount to the extent payable from the estate left behind, on
conclusion of the proceedings. Hence, the instant appeals to assail
the orders passed in main case and review.

BRIEF FACTS
3. The case as set up by the complainant before District Forum, Munger,
Bihar (in short ‘District Forum’) was that he consulted Dr. P.B. Lall
(deceased) at his private clinic on 10.02.1990 due to complain of
severe pain by his wife in her right eye. On examination, Dr. Lall
advised immediate operation, which was done on 11.02.1990.
However, the pain reoccurred on 16.03.1990 and she was taken
back to Dr. Lall. Despite further treatment, there was no relief. The
complainant consulted with other doctors at Bhagalpur and Aligarh,
but having no respite, he consulted Dr. B. Sridhar at Shankar
Netralaya, Madras. As alleged, he informed that his wife had already
lost vision of right eye due to wrong treatment and operation, which
can further affect the vision in her left eye. On advice of surgery of
his wife’s left eye, she was operated on 05.05.1994. Consequently,

1 Wife and son.
2 26.05.2010 (Impugned Order I) in M.A. No. 1214 of 2009 (Application for substitution) in Revision
Petition No. 432 of 2006.
3 vide order dated 24.05.2018 (Impugned Order II) passed in M.A. No. 324 of 2011 (Review) in Revision
Petition No. 432 of 2006 and R.A. No. 70 of 2011 (Review) in Revision Petition No. 432 of 2006
306 [2026] 5 S.C.R.

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the complainant had to visit Madras multiple times, and the treatment
of his wife with local doctor continued till 05.08.1997.
4. The consumer complaint under the Consumer Protection Act, 1986
(in short ‘1986 Act’) was filed on 13.08.1997 against Dr. Lall for
alleged deficiency in service, claiming compensation as follows –

a. Operation charges and clinic charges, Rs. 5000/-
medicine etc. paid to the opp. party at
Munger.
b. Doctor’s fee at Bhagalpur, Munger, two Rs. 75,000/-
operation charges at Madras, expenditure,
train fare, fooding, lodging, medicine etc. at
Aligarh and Madras correspondence
c. Compensation for damage for loss of eyes Rs. 3,50,000/-
d. Mental agony and harassment Rs. 20,000/-
Rs, 4,50,000/-

5. The District Forum vide order dated 05.11.2003 partly allowed the
complaint holding the doctor negligent for deficiency in service and
held him liable to pay compensation of Rs. 2,00,000/- for loss of
vision. In addition, Rs. 35,000/- for expenditure and treatment, and
Rs. 25,000/- for mental agony, making total Rs. 2,60,000/- be paid
within 3 months.
6. Being aggrieved, complainant and Dr. Lall both approached State
Consumer Disputes Redressal Commission, Patna, Bihar (in short
‘SCDRC’) filing Appeal Nos. 598 of 2003 and 607 of 2003 respectively.
Both the appeals were decided vide common order on 02.12.2005,
and the appeal filed by the complainant was dismissed, while the
appeal of Dr. Lall was allowed, setting aside the order of District
Forum. The SCDRC noted that the loss of vision of the wife of
complainant was due to glaucoma and not curable even after the
surgery was done desperately by Dr. Lall with intent to relieve her
from pain. The surgery performed was acceptable under the medical
ethics and with the best of the abilities by Dr. Lall. The complainant
has not produced any report from any expert of medical board or
any expert to show that in doing surgery Dr. Lall was negligent. In
absence of expert evidence to substantiate the allegation of medical
[2026] 5 S.C.R. 307

Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

negligence leading to loss of vision, holding the doctor guilty for the
same is not sustainable.
7. Dissatisfied, the complainant preferred Revision Petition No. 432 of
2006 before NCDRC assailing the order of SCDRC, pending which,
Dr. Lall passed away on 04.08.2009. The complainant filed M.A.
No. 1214 of 2009 for substitution of legal heirs (wife and son) in
the revision petition, which was allowed by NCDRC on 26.05.2010
(Impugned Order I), substituting the appellants herein as legal heirs.
On notice, both wife and son filed applications4 under Order XXII5
Rule 16 and 47 read with Section 1518 of Code of Civil Procedure
(in short ‘CPC’) and Section 229 of 1986 Act, praying to drop their
names from the proceedings, to dismiss the recall by the order
dated 26.05.2010. It was said, since Dr. Lall had succeeded in the
appeal before SCDRC, and died during the pendency of the revision,
no subsisting decree existed on the date of his death, hence, the
proceedings would stand abated. Further, the applicants were never
served with any notice at any stage before joining them as party to
the revision petition. In the meantime, the original complainant also
died on 16.01.2014 and her legal heirs were substituted.
8. NCDRC vide order dated 24.05.2018 (Impugned Order II) dismissed
both the applications and posted the matter for final hearing on
20.09.2018. Aggrieved by the said order, the present appeals have
been filed wherein after issuing notice, stay on further proceeding was
granted on 18.12.2019. Having regard to the nature of the controversy,
this Court by order dated 13.01.2026 appointed Mr. Raghenth Basant,
learned senior counsel and Mr. Varun Kapoor, learned counsel as
amicus curiae to assist the Court, on the issue as involved.

SUBMISSION OF THE APPELLANTS
9. Ms. Sarvshree, learned counsel appearing on behalf of the appellants
submits that the alleged incident of medical negligence is of
11.02.1990, though the complaint was filed on 13.08.1997, almost

4 MA No. 324 of 2011 (by wife) and R.A. No. 70 of 2011 (by son).
5 Death, Marriage and Insolvency of Parties.
6 No abatement by party’s death if right to sue survives.
7 Procedure in case of death of one of several defendants or of sole defendant.
8 Saving of inherent powers of Court.
9 Power of and procedure applicable to the National Commission.
308 [2026] 5 S.C.R.

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a delay of 7 ½ years. There is no proximity between the date of
alleged incident and the date of filing complaint. The complainant
took his wife to multiple other doctors for treatment but of no avail.
Dr. Lall had unblemished record and was a specialist having MBBS
(Pat), M.S. (Eye), M.S. (ENT), DO (London) degrees, were qualified
and well respected.
10. Learned counsel further submits that the complaint was dismissed
by SCDRC and during pendency of revision Dr. Lall passed away.
Therefore, on the date of death of Dr. Lall, no formal decree of
any forum/Commission exist against him. In such eventuality, the
proceedings ought to have been closed as abated, and for alleged
negligence of deceased, no right to sue survive against the legal
representatives. Nonetheless no loss to estate is claimed by an
enrichment of estate of Dr. Lall LRs, and hence cannot be substituted.
Therefore, in absence of decree, recording finding of personal injury
due to medical negligence, no proceedings can continue against
the legal heirs of the doctors in view of Section 30610 of the Indian
Succession Act, 1925 (in short ‘1925 Act’).
11. It is also urged, in the 1986 Act, opposite party has not been
defined and in case of death of opposite party rendered service in
person, his/her legal heirs cannot be substituted for any negligent
act of individual Doctor. To buttress the submissions, reliance has
been placed on Melepurath Sankunni Ezhuthassan Vs. Thekittil
Geopalankutty Nair11, M. Veerappa Vs. Evelyn Sequeira12, Balbir
Singh Makol Vs. Chairman, M/s Gangaram Hospital and Others13,
Neeraj Amarnath Dora Vs. Nandan Hospital and Others14, G.
Jayaprakash Vs. State of Andhra Pradesh.15

SUBMISSION OF THE RESPONDENTS
12. Mr. Umesh Sinha, learned counsel appearing for respondents
vehemently argued and said the provisions of CPC are applicable to

10 Demands and rights of action of or against deceased survive to and against executor or administrator.
11 (1986) 1 SCC 118
12 (1988) 1 SCC 556
13 2001 (1) CPR 45 (NC)
14 II 2011 CPJ 171 (NC)
15 AIR 1977 (AP) 20
[2026] 5 S.C.R. 309

Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

1986 Act, and in terms of Order XXII Rule 4, even if sole defendant
dies, his legal heirs ought to be substituted when right to sue
survive. He submits that, the legal heirs of Dr. Lall inherited his
estate and in case, liability, if any, is fixated for his negligence, it
may be recoverable to such extent from his estate. The legal heirs
of Dr. Lall stepped into his shoes by virtue of Section 2(11) of CPC,
which defines ‘legal representative’ a person in law who represents
the estate of the deceased.
13. He further submits that Section 13(7) of the 1986 Act provides for
applicability of Order XXII where the complainant or the opposite
party dies. Rule 4 of Order XXII prescribe the procedure on death
of one of several defendants or of sole defendant, hence, NCDRC
was right in continuing the proceeding, substituting the legal heirs
of Dr. Lall.
14. Countering the applicability of Section 306 of 1925 Act, it is submitted
that maxim ‘actio personalis monitor cum persona’ (a personal action
dies with the person) has been stated to be ‘unworkable’ in today’s
social jurisprudence as per 178th Report16 of the Law Commission of
India and recommended for the amendment. Same view has been
subscribed in the 8th report17 of the Haryana Law Commission. He
further submits that no fault is attributable to him in the present case,
as he has been pursuing the case diligently. At this stage, merely
pecuniary claim survives, which can be satisfied from the estate of
the opposite party, in case, the claim is decided in his favour. It is
said, the application seeking substitution has rightly been allowed,
otherwise, it would be amounting to reject the claim at the threshold
at revisional stage without touching the merit.

SUBMISSION OF INTERVENOR
15. Mr. Shyam Padman, learned senior counsel, representing Indian
Medical Association, Kerala State Branch, submitted that the 1986
Act does not provide any definition of ‘opposite party’, indicating
a conscious legislative intent to survive any claim or to continue
such claim against the estate of the opposite party after death. The
procedure to follow is provided in Section 13(7) of the 1986 Act or

16 December, 2001.
17 02.12.2022
310 [2026] 5 S.C.R.

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Section 3818(12) of the Consumer Protection Act, 2019 (in short
‘2019 Act’), which refers the procedure of Order XXII of CPC. Since
both the Acts are silent on the issue of abatement and nor do they
override Section 306 of 1925 Act, therefore entire domain is governed
by Order XXII of CPC read with substantive law on the issue.
16. It is submitted Section 306 of 1925 Act is subject to qualify that such
proceedings may continue against the executor or administrator where
the right to sue survives. In case, the proceedings do not reach to
a final conclusion, no liability can be said to be crystallized against
the opposite party and if party dies in absence, no transmissible
obligations persist.

SUBMISSION OF AMICUS CURIAE
17. Mr. Raghenth Basant, learned senior counsel, and assisted by Mr.
Varun Kumar Kapoor, learned counsel, appearing as amicus submitted
that Section 13(7) of 1986 Act addresses the contingency where
either party to a pending proceeding dies and provides, the matter
be dealt in accordance with Order XXII of CPC. In the present case,
the opposite party had succeeded in appeal, the question remains
as to whether on his death during pendency of revision, the right to
sue survives or not. To ascertain, substantive law has to be looked
into vis-à-vis the general principle under Section 306 of 1925 Act.
18. He submits that, Section 306 of 1925 Act carves out an exception
to the transmissibility of right to sue or to be sued, to the executors
or administrators of deceased party. The exception being ‘personal
injuries not causing death of the party’, applies to claims, not resulting
in death, implying such personal cause of action do not survive and
end with the death of the person.
19. Supplementing the arguments of the respondents, he drew our
attention to the 178th report of the Law Commission of India, 8th
report of the Haryana Law Commission, Kerala Torts (Miscellaneous
Provisions) Act, 197619 and practices of other common law countries
who have dispensed with the application of maxim ‘actio personalis
moritur cum persona’.

18 Procedure on admission of complaint.
19 which allows all causes of action to continue except defamation, seduction or adultery.
[2026] 5 S.C.R. 311

Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

20. Lastly, placing emphasis on the legislative intent underlying Section
13(7) of 1986 Act read with Order XXII of the CPC, he submits that
if the principle laid down in Balbir Singh Makol (supra) is applied, it
would result in material inconsistency. According to him, the right to
sue would not survive if the opposite party dies during the pendency
of the complaint, yet it would survive where the death occurs during
the pendency of an appeal against a decree passed against the
opposite party.
21. Learned amicus has also suggested possible interpretations, whether
or not the right to sue survives on death of the complainant or opposite
party (medical professional/doctor). The suggested interpretations
are for convenience as quoted –

On death of complainant
Interpretation A – All claims shall survive on death of complainant
because of 1986 Act and 2019 Act being subsequent and special
laws, they shall govern the field.
– The 1986 Act defines the word complainant to include
consumer’s legal heirs and the definition given under Section
2(5)(v) makes it clear that upon death of original consumer, the
LRs can step into his shoes, meaning thereby, the claim can
continue through LRs and is not meant to extinguish, reflecting
conscious legislative intent.
– Similar is the situation in the subsequent 2019 Act, where similar
definition has been provided under Section 2(5)(vi) and once
again Parliament has recognized the right of the consumer to
seek redressal of his claim after his death through LRs.
Interpretation B – Only claims amounting to ‘loss to estate’ can
survive.
– Personal injury stipulated under Section 306 of 1925 mistakenly
assumes to cover all tortious acts and negligence where direct
injury is suffered.
– Loss to the estate following such injury ought to be extricated
from the ambit personal injury, since any such loss to the estate
from an actionable wrong does not partake the character of
personal injury. For eg. – In motor accident cases, award under
312 [2026] 5 S.C.R.

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tab for loss of future income, medical expenses etc. are exclusive
to personal injury. Hence, such claims can be protected from
the rigor of Section 306 of 1925 Act.

On death of opposite party (medical professional/doctor)
Interpretation A – If ‘loss to estate’ is not reckoned as a claim for
‘personal injury’, at least this claim can survive even on the doctor’s
death, against his estate.
– Claim for loss of estate stand on a different footing from
personal injury. Such claim represents quantifiable economic
loss and does not fall within exception enumerated in Section
306 of 1925 Act.
– The Parliament did not provide for mandatory abatement of
proceedings in case of death of opposite party. Had it been
the intention, it would have provided an express provision in
the 1986 Act or the 2019 Act. Rather, Order XXII of CPC has
been made applicable to ensure proceedings are continued in
such cases.
Interpretation B – Even a claim for ‘personal injury’ could be
sustainable against the estate of the deceased doctor.
a. An interpretation that avoids anomalous or irrational
consequences is to be preferred.
– Any construction that would permit consumer to establish
negligence and recover secondary loss as a consequence
thereof, though bar him from recovering the primary loss
because of injury suffered due to same, would lead to a
situation where principal wrong itself is rendered illegally
irrelevant solely because the wrongdoer has died.
– Such interpretation of the maxim ‘actio personalis moritur
cum persona’ defeats the very purpose of 1986 Act/2019
Act, which is a beneficial legislation.
– This anomaly has been criticized by the Law Commission
of India in its 178th Report, deprecating the mechanical
application of this maxim being inconsistent with the
modern social jurisprudence and also by the Haryana
Law Commission in its 8th Report.
[2026] 5 S.C.R. 313

Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

b. Comparative common law as a persuasive interpretative tool.
– The maxim finds statutory expression in Section 306 of
Indian Succession Act, 1925 and is a doctrine of common-
law origin traceable to English Law.
– United Kingdom by enacting Law Reform (Miscellaneous
Provisions) Act, 1934, abrogated the principle that personal
causes of action perish with the person. Other jurisdictions
have followed.
c. Section 13(7) of 1986 Act and Section 38(12) of the 2019 Act
will not be rendered otiose.
– The above interpretations do not violence the text of
Section 13(7) of 1986 Act and 38(12) of 2019 Act, which
mandate recourse to Order XXII of CPC in case of death
of a party including opposite party.
– What is urged is a relief specific inquiry into survivability,
fully consistent with the aforesaid Order, not confined to
monetary compensation, but also include directions for
performance of specific obligations including removal of
defects or any other acts incapable of being carried out
after death of opposite party.

Suggestions

On death of the opposite party (medical professional/doctor)
a. Upon the death of the medical professional, claims for
compensation arising out of medical negligence, including claims
for person Upon the death of the medical professional, claims
for compensation arising out of medical negligence, including
claims for personal injury suffered by a consumer, ought to
survive against the estate of the deceased. The Consumer
Protection Act, being a special, beneficial and subsequent
legislation, must govern the field in preference to the general
provisions of the Indian Succession Act, 1925.
b. In the alternative, even if claims for personal injury are not
held to survive in their entirety, claims for loss to estate of the
complainant must, in any event, be held maintainable against
the estate of the deceased doctor. Loss to estate constitutes
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a distinct and independent head of claim, representing
compensatory civil liability rather than a personal cause of action,
and therefore survives even on a strict construction of Section
306 of the Indian Succession Act, 1925. al injury suffered by a
consumer, ought to survive against the estate of the deceased.
The Consumer Protection Act, being a special, beneficial and
subsequent legislation, must govern the field in preference to
the general provisions of the Indian Succession Act, 1925.

On death of the consumer/complainant
a. All claims maintainable under the Consumer Protection Act,
including claims involving personal injury, may be permitted
to survive at the instance of the legal representatives. Such
survivability flows from the inclusive definition of ‘complainant’
under the Consumer Protection Act and the legislative intent
to treat consumer grievances as statutory rights rather than
purely personal torts. The Consumer Protection Act, being a
special and subsequent legislation, must govern the field in
preference to the general provisions of the Indian Succession
Act, 1925. Concerns of unjust enrichment by the kin of the
deceased consumer/complainant can be adequately addressed
through moderation of quantum, particularly in respect of
non-pecuniary heads, consistent with the principle if just
compensation.
b. In the alternative, and at the very least, claims representing loss
to estate, such as medical expenses incurred, loss of income
during the lifetime of the consumer, or other pecuniary loss,
must necessarily survive. Even on a restrictive application of
Section 306 of the Indian Succession Act, 1925 such claims
do not fall within the exception relating to personal injury and
are transmissible to the legal representatives.

ANALYSIS AND FINDINGS
22. We have heard the learned counsel for the parties, the intervenor,
and learned amicus curiae at considerable length. It is an exceptional
case indeed in the sense that in spite of the best assistance of the
amicus, this Court had to indulge in legal research to dredge out
older statutory provisions which may seek to answer this issue.
However, the law seems to have been lost to the pages of history
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due to less tort actions being litigated in India. In posterity, this case
may be lesson to the students and stakeholders, to have a strong
emphasis on legal history and jurisprudence.
23. Upon a careful consideration of the submissions advanced, the
material placed on record, and the applicable legal framework, the
question that arises for our consideration is –
“Whether, upon death of the doctor during pendency of
proceedings at appellate stage, the legal heirs can be
impleaded and held liable for the alleged act of medical
negligence of the deceased doctor? If yes, to what
extent?”
24. Aforesaid question assumes importance as the implication of the
holdings in this case also applies to numerous types of tortious
claims, including personal injuries which does not amount to death,
including motor vehicle accidents, and other industrial accidents. In
this context, we only state the principle of law as applicable, without
considering any additional policy consideration which may be relevant
to be considered elsewhere under different enactments.
25. Before we advert to the merits of the submissions, it is necessary
to first understand the legal landscape. At the outset it becomes
imperative to refer to common law maxim ‘actio personalis moritur
cum persona’, which translates to ‘a personal right of action dies
with the person’. This maxim was entrenched in the common law at
least since 15th century. Percy H. Winfield20 has written greatly about
the evolution of this principle in common law as having dark corners.
26. English law, in light of societal changes, identified early on the need
and necessity to create exceptions. In Hambly v. Trott21, a simple
case wherein defendant had wrongfully converted and used the
Plaintiff’s sheep (a tort of conversion/trespass), while deciding the
liability of defendant’s executor/estate, Lord Mansfield observed –
“…The maxim, actio personalis moritur cum persona, upon
which the objection is founded, not being generally true,
and much less universally so, leaves the law undefined

20 Percy H. Winfield, ‘Death as Affecting Liability in Tort’, Columbia Law Review, Vol. 29, No. 3 (Mar., 1929),
pp. 239-254]
21 1776 1 COWP 371
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as to the kind of personal actions which die with the
person, or survive against the executor…..
…… Here therefore is a fundamental distinction. If it is
a sort of injury by which the offender acquires no gain
to himself at the expense of the sufferer, as beating or
imprisoning a man, &c. there, the person injured has only a
reparation for the delictum in damages to be assessed by
a jury. But where, besides the crime, property is acquired
which benefits the testator, there an action for the value
of the property shall survive against the executor. As for
instance, the executor shall not be chargeable for the injury
done by his testator in cutting clown another man’s trees,
but for the benefit arising to his testator for the value or
sale of the trees he shall.
So far as the tort itself goes, an executor shall not be liable;
and therefore it is, that all public and all private crimes die
with the offender, and the executor is not chargeable; but
so far as the act of the offender is beneficial, his assets
ought to be answerable; and his executor therefore shall
be charged…………
(emphasis supplied)

This case clearly demarcated that death although ends personal
liability for torts, however, any advantage gained by the defendant
therein is answerable by the successor interest in the property.
27. The maxim which means ‘a personal claim dies with the person’ was
a general rule applicable to torts and prevents representatives of the
deceased from suing in his right for the suffering and pecuniary loss
caused to the deceased during his lifetime by reason of the injury of
which the deceased ultimately died. The result was that the person
who caused the death of other cannot be sued in tort, though if death
had not been caused but only injury had been caused, the injured
would be entitled to sue and recover damages for the tortious act.
28. An Act of 1330 (4 Ed. III, c. 7) as amended by an Act of 1351-1352
(25 Ed. III, st. 5, c. 5.), enabled the personal representatives to sue
for any injury done to the personal estate of one since deceased. The
Civil Procedure Act, 1833, filled up most of the gaps left by the Act
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of 1330, at any rate so far as injuries to property were concerned.
Its’ provisions on this point were embodied under the Administration
of Estates Act, 1925. Under the aforesaid enactment, the personal
representatives could maintain for any injury committed to the real
estate of the deceased, within six months before his death, any
action which the deceased himself could have maintained, but the
action had to be brought within one year after his death. Further,
an action might be maintained against the personal representative
of a deceased person for any wrong committed by the deceased
within six months before his death, to another person’s real or
personal property, but the action had to be brought within six months
after the personal representative had taken out representation.22
Various other enactments have created exceptions, which are
Fatal Accidents Act, 1864, Employer’s Liability Act (43 and 44 Vict.,
c.42), Workman’s Compensation Act, 1897 (60 and 61 Vic., c.37),
Workman’s Compensation Act, 1906 (6 Edw. VII, C. 58).
29. The position at one point in England was ‘it was cheaper to kill than
to maim or cripple’. The above unsatisfactory state of law in England
was overcome by the passing of the Fatal Accidents Act, 1846, which
is commonly known as Lord Campbell’s Act and English Law Reform
(Miscellaneous Provisions) Act 1935.
30. First set of statutory exception was carved under Fatal Accidents Act,
1846 (Lord Campbell Act). The English enactment, was adopted into
India in 1855, giving a ‘right to sue’ to certain relative consequent upon
the death of another as the result of a tort, providing the deceased
would have been able to sue in person had he survived. This act
survives in India even today, albeit in limited context wherein the
right to sue for Plaintiff is preserved through statutory exceptions,
when fatal accidents occur.
31. In Phillips v. Homfray23, 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 as thus (at page 454) –
“The only case in which, apart from the question of breach
of contract express or implied, a remedy for a wrongful act

22 P H Winfield, Recent Legislation on the English Law of Tort, 1936 14-8 Canadian Bar Review 639;
23 (1883) 24 Ch.D., 439
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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.”
32. Further under English law, second set of exception for other tortious
claims other than fatal accidents were created with the introduction
of the English Law Reform (Miscellaneous Provisions) Act 1935,
which allowed actions to be brought on behalf of a deceased
plaintiff or against the estate of a deceased defendant. It may be
beneficial herein to note certain provisions of the English Law Reform
(Miscellaneous Provisions) Act 1935. Section 1(1) of the aforesaid
Act, states as under-
“1. Effect of death on certain causes of action.
(1) Subject to the provisions of this section, on the death
of any person after the commencement of this Act all
causes of action subsisting against or vested in him
shall survive against, or, as the case may be, for the
benefit of, his estate. Provided that this subsection
shall not apply to causes of action for defamation.
(1A) The right of a person to claim under section 1A of
the Fatal Accidents Act 1976 (bereavement) shall
not survive for the benefit of his estate on his death.]
(2) Where a cause of action survives as aforesaid for
the benefit of the estate of a deceased person, the
damages recoverable for the benefit of the estate
of that person—
[(a) shall not include—
(i) any exemplary damages;
(ii) any damages for loss of income in respect
of any period after that person’s death;]
(b) ......
(c) Where the death of that person has been caused
by the act or omission which gives rise to the
cause of action, shall be calculated without
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reference to any loss or gain to his estate
consequent on his death, except that a sum in
respect of funeral expenses may be included.
(3) ... …
(4) Where damage has been suffered by reason of any
act or omission in respect of which a cause of action
would have subsisted against any person if that
person had not died before or at the same time as the
damage was suffered, there shall be deemed, for the
purposes of this Act, to have been subsisting against
him before his death such cause of action in respect
of that act or omission as would have subsisted if he
had died after the damage was suffered.
(5) The rights conferred by this Act for the benefit of
the estates of deceased persons shall be in addition
to and not in derogation of any rights conferred on
the dependants of deceased persons by the Fatal
Accidents Acts 1846 to 1908,..... and so much of this
Act as relates to causes of action against the estates
of deceased persons shall apply in relation to causes
of action under the said Acts as it applies in relation
to other causes of action not expressly excepted
from the operation of subsection (1) of this section.
(6) In the event of the insolvency of an estate against
which proceedings are maintainable by virtue of this
section, any liability in respect of the cause of action
in respect of which the proceedings are maintainable
shall be deemed to be a debt provable in the
administration of the estate, notwithstanding that it
is a demand in the nature of unliquidated damages
arising otherwise than by a contract, promise or
breach of trust.
The position of the earlier quoted maxim in England is presently
largely academic, since the question of survival of cause of action
is almost entirely governed by statute. Under Section 1(1) of the
above enactment, all such cause of action, including an entirely
‘personal’ ones such as claim for damages for pain and suffering,
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survive in favor or against deceased person’s estate provided they
are vested in it at the time of death. As apparent from the reading of
the above provision, there are four statutory exceptions: the estate
cannot sue for damages for defamation, bereavement, prospective
income which the deceased would have earned after his death, or
for any sum by way of punitive damages. For the present purpose,
we may not be required to go much into the English law.
33. However, India took a different turn in this regard. We will come
back to adumbrating the Indian substantive law after referring to
the procedural law involved is this issue and how the same has to
be interpreted supporting the substantive law as it exists presently.
34. In the present case, the proceedings were initiated under the 1986 Act,
which was in operation on the date of death of opposite party – Dr.
Lall, who passed away on 04.08.2009. There is no gainsaying that the
nature of proceedings initiated against Dr. Lall is a tortious claim for
negligence by a doctor in treating a patient. The 1986 Act does not
define ‘opposite party’, however Section 13 deals with the ‘procedure
on the receipt of complaint’. As the Marginal note suggests, Section
13 prescribes procedural prescriptions. Sub-section (7) thereof caters
to the exigencies incase where death of the consumer/complainant
or the opposite party takes places. The said Section is relevant and
hence reproduced below for ready reference –
“13. Procedure on receipt of complaint
(1) The District Forum shall, on receipt of a complaint,
if it relates to any goods –
(a) refer a copy of the complaint to the opposite
party mentioned in the complaint directing him
to give his version of the case within a period
of thirty days or such extended period not
exceeding fifteen days as may be granted by
the District Forum;
(b) where the opposite party on receipt of a
complaint referred to him under clause (a)
denies or disputes the allegations contained
in the complaint, or omits or fails to take any
action to represent his case within the time given
by the District Forum, the District Forum shall
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proceed to settle the consumer dispute in the
manner specified in clauses (c) to (g);

xx xx xx

(7) In the event of death of a complainant who is a
consumer or of the opposite party against whom
the complaint has been filed, the provisions of
Order XXII of the First Schedule to the Code of
Civil Procedure, 1908 (5 of 1908) shall apply subject
to the modification that every reference therein to
the plaintiff and the defendant shall be construed as
reference to a complainant or the opposite party, as
case may be.)”
35. Bare reading of sub-section (7) reveals that in event of death of either
consumer/complainant or the opposite party, Order XXII of the First
Schedule to CPC shall apply. Order XXII of CPC deals with ‘Death,
Marriage and Insolvency of Parties’, rules whereof, in particular
Rule 2, 4 and 11 are relevant and are reproduced hereinunder –
“2. Procedure where one of several plaintiffs or
defendants dies and right to sue survives —
Where there are more plaintiffs or defendants than one,
and any of them dies, and where the right to sue survives
to the surviving plaintiff or plaintiffs alone, or against the
surviving defendant or defendants alone, the Court shall
cause an entry to the effect to be made on the record,
and the suit shall proceed at the instance of the surviving
plaintiff or plaintiffs, or against the surviving defendant or
defendants.

xx xx xx

4. Procedure in case of death of one of several
defendants or of sole defendant —

(1) Where one of two or more defendants dies and the
right to sue does not survive against the surviving
defendant or defendants alone or a sole defendant
or sole surviving defendant dies and the right to
sue survives, the Court, on an application made
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in that behalf, shall cause the legal representative
of the deceased defendants to be made a party
and shall proceed with the suit.

(2) Any person so made a party may make any defence
appropriate to his character as legal representative
of the deceased defendant.

(3) Where within the time limited by law no application
is made under sub-rule (1), the suit shall abate as
against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the
plaintiff from the necessity of substituting the legal
representatives of any such defendant who has failed
to file a written statement or who, having filed it, has
failed to appear and contest the suit at the hearing;
and judgment may, in such case, be pronounced
against the said defendant notwithstanding the death
of such defendant and shall have the same force
and effect as if it has been pronounced before death
took place.

(5) Where—
(a) the plaintiff was ignorant of the death of a
defendant, and could not, for that reason, make
an application for the substitution of the legal
representative of the defendant under this rule
within the period specified in the Limitation
Act, 1963 (36 of 1963), and the suit has, in
consequence, abated, and
(b) the plaintiff applies after the expiry of the period
specified therefore in the Limitation Act, 1963
(36 of 1963), for setting aside the abatement
and also for the admission of that application
under section 5 of that Act on the ground that
he had, by reason of such ignorance, sufficient
cause for not making the application with the
period specified in the said Act,
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the Court shall, in considering the application under
the said section 5, have due regard to the fact of such
ignorance, if proved.]

xx xx xx

11. Application of Order to appeals —
In the application of this Order to appeals, so far as may
be, the word “Plaintiff” shall be held to include an appellant,
the word “defendant” a respondent, and the word “suit”
an appeal.”
36. Rule 2 deals with a situation where one of the several plaintiffs
or defendants dies and the right to sue survives to the remaining
plaintiffs or against the surviving defendants alone. In such a case,
no substitution of legal representatives is necessary, and the suit
continues at the instance of or against the surviving parties. There
is no abatement of the suit falling under this Rule.
37. On the other hand, Rule 4 addresses the situation where the sole
defendant, or one of several defendants, dies and the right to sue
survives only against the deceased defendant and not against the
surviving defendants alone. In such a case, the suit cannot proceed
against a dead person. Therefore, in terms of this Rule, the legal
representatives of the deceased defendant must be brought on
record, which must be effected through an application made in
that behalf within the prescribed limitation. Upon such application
being allowed and the legal representatives being impleaded, the
Court shall proceed with the suit as if the legal representatives
had originally been parties. However, if no such application is
made within the limitation period, the suit abates as against the
deceased defendant.
38. Rule 11 makes it clear that Order XXII is applicable to appeals also.
39. Thus, the position which emerges on combined reading of Rule 2
and Rule 4 is that the continuation of a suit/proceedings upon the
death of a party fundamentally depends on whether the right to sue
survives or not. When we speak of ‘right to sue/cause of action’ we
speak of substantive law, as opposed to procedural aspects.
40. On a comparative reading of 1986 Act with 2019 Act, it is worthwhile
to state that the procedure prescribed under Section 13(7) of the
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1986 Act has been continued under Section 38(12) of the 2019 Act.
Insofar as ‘complainant’ is concerned, as per Section 2(b)(v) of the
1986 Act, a ‘complainant’ means his legal heir or legal representative
in case of his death. Similarly, in 2019 Act, the same definition has
been carried under Section 2(5)(vi) of complainant. By expressly
providing for legal representative for complainant/consumer, the
legislative intent is clear, i.e., the claim of the complainant shall not
automatically perish upon his death and shall survive through his
legal heirs.
41. Classic definition of ‘cause of action’ is given by Brett J in Cooke v
Gill 24, as ‘every fact which is material to be proved to entitle the
plaintiff to succeed’, and by Diplock LJ in Letang v Cooper25, as
‘simply a factual situation the existence of which entitles one person
to obtain from the court a remedy against another person’. ‘Right
to sue’ ordinarily means the right to seek relief by means of legal
proceedings. The right accrues only when the cause of action arises,
that is, the right to prosecute to obtain relief by legal means26. In
Indian Evangelical Lutheran Church Trust Association vs. Sri
Bala & Co.27, this Court observed that –
“9.8 ….…Thus, “right to sue” means the right to seek relief
by means of legal procedure when the person suing has
a substantive and exclusive right to the claim asserted by
him and there is an invasion of it or a threat of invasion.
When the right to sue accrues, depends, to a large extent
on the facts and circumstances of a particular case keeping
in view the relief sought. It accrues only when a cause of
action arises and for a cause of action to arise, it must
be clear that the averments in the plaint, if found correct,
should lead to a successful issue. The use of the phrase
“right to sue” is synonymous with the phrase “cause
of action” and would be in consonance when one uses
the word “arises” or “accrues” with it.
(emphasis supplied)

24 (1873) LR 8 CP 107 – Pg. 116.
25 [1965] 1 QB 232 – Pg. 242- 243.
26 State of Punjab v. Gurdev Singh, (1991) 4 SCC 1
27 2025 INSC 42
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42. Cause of action means every fact which would be necessary for the
plaintiff to prove, if traversed, in order to support his right to judgment.
It consists of a bundle of material facts, which are necessary for
the plaintiff to prove in order to entitle him to the reliefs claimed in
the suit.28
43. In the said context, to ascertain whether right to sue survives in
favour of legal representatives of complainant or opposite party, in
cases of medical negligence, we need to adumbrate the substantive
law as it exists in India and its legal history.
44. For torts/accidents which caused death, the Indian Fatal Accidents
Act (XIII of 1855) followed the above English Act of 1846. Under
Section 1-A of the Fatal Accidents Act, a new right is created in
favour of certain dependants who are named therein, to maintain
an action or suit for damages in respect of the death of a person.
The dependants for whose benefit an action can be maintained
under Section 1-A of the Act are the wife, husband, parents (which
term includes not only father and mother but also grandfather and
grandmother) and child (which term includes not only son and
daughter but also grandson and grand-daughter and step-son and
step-daughter). For those torts and liabilities which did not cause
death, however the plaintiff passed away independently, the Legal
Representatives’ Suits Act of 1855 was passed. It may not be out
of context to note that the Indian Fatal Accidents Act and the Legal
Representatives’ Suits Act of 1855 came into force on one and the
same date, viz., 27th March, 1855.
45. The Legal Representatives’ Suits Act enacted in India in the year
1855 (Act XII of 1855), is in existence as to this date. It is absolutely
necessary to have a look at provisions of this Act –
“1. Executors may sue and be sued in certain cases
for wrongs committed in lifetime of deceased.
An action may be maintained by the executors,
administrators or representatives of any person deceased,
for any wrong committed in the time of such person, which
has occasioned pecuniary loss to his estate, for which

28 Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives, (2020) 7
SCC 366, (Para 24)
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wrong an action might have been maintained by such
person, so as such wrong shall have been committed
within one year before his death 1***; and the damages,
when recovered, shall be part of the personal estate of
such person;
and further, an action may be maintained against the
executors or administrators or heirs or representatives of
any person deceased for any wrong committed by him
in his lifetime for which he would have been subject to
an action, so as such wrong shall have been committed
within one year before such person’s death 2*** and the
damages to be recovered in such action shall, if recovered
against an executor or administrator bound to administer
according to the English law, be payable in like order of
administration as the simple contract debts of such person.
2. Death of either party not to abate suit. Proviso. —
No action commenced under the provisions of this Act
shall abate by reason of the death of either party, but
the same may be continued by or against the executors,
administrators or representatives of the party deceased:
Provided that, in any case in which any such action shall
be continued against the executors, administrators or
representatives of a deceased party, such executors,
administrators or representatives may set up a want of
assets as a defence to the action, either wholly or in part,
in the same manner as if the action had been originally
commenced against them.
These provisions are applicable to institution of suits filed under the
aforesaid enactment, by legal representatives etc., after the death of
a person. It is clear that only suits for damages concerning pecuniary
loss of estate can be maintained by legal representative, for any
wrong committed by him within one year before the death of such
person. Before the enactment of the Legal Representatives’ Suits
Act, such right to loss of estate died with the wronged and the same
did not survive to the executors, administrators or representatives
of the deceased. After the passing of the said Act, the executors or
administrators or representatives of the deceased, as the case may
be, can maintain a suit for loss of estate of the deceased. However,
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death of defendant/tortfeasor has been dealt differently, wherein
any action or claim is maintainable against the legal representative,
provided the wrong is committed within one year before the death.
46. The remedy provided under the Legal Representatives’ Suits Act 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 Haridas Ramdas v. Ramdas Mathuradas29, the
plaintiffs therein 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 Parsens, JJ., that Legal
Representatives’ Suits Act, 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.
47. Though the legislature went much further than the English Act of 1833
when it enacted Clause (2) of Section 1 of Legal Representatives’
Suits Act, 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 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,
Muhammadans or Buddhists, a similar provision was also enacted
in the Probate and Administration Act 1881, in particular Section 89,
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.”

29 (1889) I.L.R., 13 Bom., 677
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48. As noted above, Section 306 of 1925 Act, is not a new provision
and has been in the statute books of India under different legislation
at least since 1865 (See Indian Succession Act, 1865, Section 268
later under Section 89 of Probate and Administration Act of 1881
(applicable to Hindus, Buddhists etc.). These earlier enactments
were consolidated during colonial period and 1925 Act was enacted,
which is applicable herein. Presently, Section 306 of 1925 Act can
be profitably referred herein –
“306. Demands and rights of action of or against
deceased survive to and against executor or
administrator.—
All demands whatsoever and all rights to prosecute or
defend any action or special 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, 1860 (45 of 1860) 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.

Illustrations
(i) A collision takes place on a railway in consequence of
some neglect or default of an official, and a passenger
is severely hurt, but not so as to cause death. He
afterwards dies without having brought any action.
The cause of action does not survive.
(ii) A sues for divorce. A dies. The cause of action does
not survive to his representative.”
The aforesaid section inter-alia provides that all rights to prosecute
any action or special proceeding existing in favour of a person at
the time of his death, survive to his executors or administrators
except cause of action for personal injuries not causing death of
the party. Thus, under Section 306, the executor/administrator of a
deceased will have a right to prosecute or continue any action or
special proceeding existing in favour of the deceased at the time of
his death, except causes of action for personal injury not causing
death of an party.
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49. While commenting on Section 268 of Indian Succession Act, 1865
which is similar to Section 306 of 1925 Act, Whitley Stokes, observed
in his commentary30 as under-
“This is nearly the English law as to personal injuries.
But the Indian Act goes further. By English law actions
founded on what are technically called wrongs to the
freehold do not survive except in the cases mentioned in 3
& 4 Will. IV, c. 42, s. 2 — Act XII of 1855, sec. 1, Wm. Exor.
707. But it is clear that this section extends to such
injuries, and that an executor or administrator may,
for example, bring a suit for diverting a watercourse,
obstructing lights or cutting down trees in the lifetime
of his testator or intestate.
Personal injuries not causing the death of the party. — If
they do cause his death, where the deceased could have
maintained the action, if alive, a suit for damages may
be brought under Act No. XII of 1855 (“An Act to provide
compensation to families for loss occasioned by the death
of a person caused by actionable wrong”). This Act is the
English Statute 9 & 10 Vic., cap. 93 (Lord Campbell’s
Act), with the additional provision that in any such suit
“the executor, administrator or representative of the
deceased may insert a claim for, and recover any
pecuniary loss to the estate of the deceased caused
by the wrongful act, neglect or default; which sum,
when recovered, shall be deemed part of the assets
of the deceased.” See Acts XII and XIII of 1855 in the
Appendix.”
(emphasis supplied)

50. On the similar lines, Mahendra Chandra Majumdhar, interprets
Section 268 of Indian Succession Act in his commentary31 in the
following manner –

30 Whitley Stokes, Commentary on Indian Succession Act, 1865, R. C. Lepage and Co., pg. 170.
31 Mahendra Chandra Majumdhar, M. Krishnamachariar (eds.), The Indian Succession Act (Act X of
1865) with elaborated notes and commentaries, p. 909-910.
330 [2026] 5 S.C.R.

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“5. Except causes of action for defamation, & c. – It will
appear from the above that an executor or administrator
can maintain an action in his representative character only
in cases where the estate of the deceased suffers any
loss on account of the wrongful act committed by another
during his lifetime. Therefore, where the wrong or injury
is merely a personal one, as in the case of defamation or
assault, &c., and no pecuniary loss has been occasioned
to the estate of the deceased, no action is maintainable
after the death of such deceased. In such cases, the rule
of law, embodied in the maxim Actio personalis moritur
cum persona (a personal right of action dies with the
person) shall evidently apply, subject to the modifications
effected by the above-mentioned Acts. This rule is, that,
if any injury is done by one person either to the person or
property of another for which damages only is recoverable
in satisfaction, the action dies with the person by whom
the wrong is committed. Thus, an action for deceit will
not lie against the representatives of a person who has
fraudulently induced another to take shares in a company
[Peek v. Gurney L. R. 6 H. L. 377] or even to purchase
shares from the deceased himself [Re Duncan; Tervy v.
Sweeting, (1899) 1 Ch. 387].
“Executors and administrators are the representatives
of the temporal property, that is, the debts and goods
of the deceased but not of their wrongs, except where
those wrongs operate to the temporal injury of their
personal estate” [Lord Ellenborough in Chamberlain v.
Williamson, 2 М. 408. But this rule “was never extended
to such personal actions as were founded upon any
obligation contract, debt, covenant or any other duty to
be performed; for, there, the action survived.” [Davies v.
Hood 88 L. J. 19]. …”
51. Coming back to Section 306 of the 1925 Act, the fundamental
principle enshrined under the above provision is that all rights and
liabilities to maintain a suit succeed the death of a person and can
be foisted on his successors. To this rule, exceptions are craved
out namely, cause of action for defamation, assault and other
personal injuries not causing death; or cause of action wherein
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relief cannot be enjoyed by the deceased or is nugatory. What
requires our attention is the first set of exceptions, which needs to
be interpreted herein.
52. While interpreting mutatis mutandis exception provided under
Section 89 of Probate and Administration Act, 1881, a full bench
of the Madras High Court in Rustomji Dorabji vs W.H. Nurse.32,
held that –
“16. 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, 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 Acts of 1865 and
1881 it was thought necessary to make some exceptions
in the latter 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 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.

32 AIR 1921 Mad 1
332 [2026] 5 S.C.R.

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17. The words “personal injuries” represent a classification
well known to law and in ordinary legal phraseology are
not confined, to merely physical injuries. Blackstone 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.
18. 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 1, page 327)
malicious prosecution was regarded only as an aggravated
form of defamation.
19. Bearing in mind this classification and having
regard to the fact that in the English Civil Procedure
Act of 1883 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
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to what it was in England and to exclude from the
operation of Sections 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”.
(Emphasis supplied)

From the above it is clear that the exceptions adumbrated have to
be taken as species mentioned therein.
53. In Melepurth Sankunni Ezhuthassan v. Thekittil Geopalankutty
Nair33, this Court while interpreting Section 306 of 1925 Act, held
as under –
“7. Where a suit for defamation is dismissed and the
plaintiff has filed an appeal, what the appellant-plaintiff
is seeking to enforce in the appeal is his right to sue
for damages for defamation and as this right does not
survive his death, his legal representative has no right to
be brought on the record of the appeal in his place and
stead if the appellant dies during the pendency of the
appeal. The position, however, is different where a suit
for defamation has resulted in a decree in favour of the
plaintiff because in such a case the cause of action has
merged in the decree and the decretal debt forms part of
his estate and the appeal from the decree by the defendant
becomes a question of benefit or detriment to the estate
of the plaintiff respondent which his legal representative is

33 (1986) 1 SCC 118
334 [2026] 5 S.C.R.

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entitled to uphold and defend and is, therefore, entitled to
be substituted in place of the deceased respondent plaintiff.
8. Section 306 further speaks only of executors and
administrators but on principle the same position must
necessarily prevail in the case of other legal representatives,
for such legal representatives cannot in law be in better
or worse position than executors and administrators and
what applies to executors and administrators will apply to
other legal representatives also.
9. The position, therefore, is that had the appellant died
during the pendency of his suit, the suit would have abated.
Had he died during the pendency of the appeal filed by him
in the district court, the appeal would have equally abated
because his suit had been dismissed by the trial court.
Had he, however, died during the pendency of the second
appeal filed by the respondent in the High Court, the appeal
would not have abated because he had succeeded in the
first appeal and his suit had been decreed. As however,
the High Court allowed the second appeal and dismissed
the suit, the present appeal by special leave must abate
because what the appellant was seeking in this appeal
was to enforce his right to sue for damages for defamation.
This right did not survive his death and accordingly the
appeal abated automatically on his death and his legal
representatives acquired no right in law to be brought on
the record in his place and stead.
We must note that this Court was confined with the question of
defamation, which usually is a personal action and does not give rise
to claims based on pecuniary damages to estate of the deceased.
As a caveat, this Court has to be cognizant of a situation wherein
monitory loss may occur to estate from an reputational loss. Therefore,
the ratio in the above case has to be narrowly confined to cases of
purely personal claims arising out of defamation which abates on the
death in terms of Section 306 of the Indian Succession Act, 1925.
54. In M Veerappa v. Evelyn Sequeira34, this Court was concerned
with a suit to seek damages for professional negligence against a

34 (1988) 1 SCC 556
[2026] 5 S.C.R. 335

Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

lawyer for filing a Special Leave Petition with considerable delay. It
is during the pendency of the suit that the original plaintiff passed
away. The defendant therein opposed the suit on the maxim actio
personalis cum moritur persona. While dismissing the appeal of the
plaintiff therein, it was observed as under –
“10. The maxim “actio personalis cum moritur persona”
has been applied not only to those cases where a plaintiff
dies during the pendency of a suit filed by him for damages
for personal injuries sustained by him but also to cases
where a plaintiff dies during the pendency of an appeal
to the appellate court, be it the first appellate court or the
second appellate court against the dismissal of the suit
by the trial court and/or the first appellate court as the
case may be. This is on the footing that by reason of the
dismissal of the suit by the trial court or the first appellate
court as the case may be, the plaintiff stands relegated to
his original position before the trial court. Vide the decisions
in Punjab Singh v. Ramautar Singh [AIR 1920 Pat 841 :
(1919) 4 Pat LJ 676], Irulappa v. Madhava [(1916) 31
MLJ 772] Maniramlala v. Chattibai [AIR 1937 Nag 216 :
ILR 1938 Nag 280], Baboolal v. Ramlal [AIR 1952 Nag
408] and Melepurath Shankunni Ezhuthassan v. Thekittil
Geopalankutty [(1986) 1 SCC 118 : AIR 1986 SC 411].
In Palaniappa Chettiar v. Rajah of Ramnad [ILR 49 Mad
208], and Motilal v. Harnarayan [AIR 1923 Bom 408 : 25
Bom LR 435 : ILR 47 Bom 716] it was held that a suit or
an action which has abated cannot be continued thereafter
even for the limited purpose of recovering the costs
suffered by the injured party. The maxim of actio personalis
cum moritur persona has been held inapplicable only in
those cases where the injury caused to the deceased
person has tangibly affected his estate or has caused an
accretion to the estate of the wrong-doer vide Rustomji
Dorabji v. W.H. Nurse [ILR 44 Mad 357] and Ratanlal v.
Baboolal [AIR 1960 MP 200] as well as in those cases
where a suit for damages for defamation, assault or other
personal injuries sustained by the plaintiff had resulted in
a decree in favour of the plaintiff because in such a case
the cause of action becomes merged in the decree and
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the decretal debt forms part of the plaintiff›s estate and
the appeal from the decree by the defendant becomes a
question of benefit or detriment to the estate of the plaintiff
which his legal representatives are entitled to uphold and
defend (vide Gopal v. Ramchandra [ILR 26 Bom 597] and
Melepurath Sankunni v. Thekittil [(1986) 1 SCC 118 : AIR
1986 SC 411] ).
11. Though Section 306 speaks only for executors and
administrators and Order 22 of Rule 3 Civil Procedure
Code sets out the rights of legal representatives
to continue the proceedings instituted earlier by a
deceased plaintiff if the right to sue survives, the courts
have taken the view that the legal representatives
stand on par with executors and administrators
regarding their right to seek impleadment in order
to continue the suit. We may in this connection only
quote the following passage occurring in Melepurath
Sankunni case [(1986) 1 SCC 118 : AIR 1986 SC 411] :
(SCC p. 121, para 8)
“Section 306 further speaks only of executors and
administrators but on principle the same position
must necessarily prevail in the case of other legal
representatives, for such legal representatives cannot
in law be in better or worse position than executors
and administrators and what applies to executors and
administrators will apply to other legal representatives
also.”
12. Thus it may be seen that there is unanimity of view
among many High Courts in the country regarding the
interpretation to be given to the words “other personal
injuries not causing the death of the party” occurring in
Section 306 of the Indian Succession Act and that the
contrary view taken by the Calcutta and Rangoon High
Courts in the solitary cases referred to above has not
commended itself for acceptance to any of the other
High Courts. The preponderant view taken by several
High Courts has found acceptance with this Court in its
decision in Melepurath Sankunni Ezhuthassan case [AIR
[2026] 5 S.C.R. 337

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1951 Mad 733]. It is on account of these factors we have
expressed our disapproval at the outset itself of the view
taken by the High Court in this case.
55. In light of the law laid down above, exceptions intended under Section
306 of 1925 Act are meant to restrain the ambit of the enacting clause
to particular cases. It is true that there is a possibility to adopt two
interpretations when it comes to the 1st exception. As alluded by
the learned amicus, first interpretation could bar all cause of action
relatable to personal injury irrespective of claim being personal or
against the estate of the deceased. Second interpretation could mean
that only cause of action relatable to claims for personal injury are
barred and any claim against the property/estate of the deceased
may continue. We are of the opinion that later interpretation is to
be preferred over the former for the reason that exceptions have to
be strictly interpreted. The scope of exception cannot be allowed to
chew the enabling provision which sets the tone for liabilities to be
carried by legal representatives for a deceased person. Additionally,
the development of common law also points towards distinction in
cause of action which are personal as against estate claims. Even
in India, aforesaid interpretation is to be favored as per the ratio in
Evelyn Sequeira (supra). Moreover, the parties have not been able
to provide any reason as to why distinct claims against the estate
needs to be barred under 1st exception to Section 306 of 1925 Act.
56. Therefore, the ‘right to sue/cause of action’ mentioned under Order
XXII Rule 2 and 4 have to be located under substantive law to be
found in Section 306 of 1925 Act. The extent of survival of right/
cause depends on the facts and remedy sought in the suit. A suit
can be filed for seeking damages ex delicto or/and claim from estate
or property of the defendant. For example, a claim for trespass can
be an unliquidated damage for trespass per se, however, this can be
coupled with conversion of a property such as taking away trees on
plaintiff land. It is the nature of the claim that determines the cause
of action and its survival.
57. Viewed differently, the answer can be traced in the definition of legal
representative provided under Section 2(11) of the CPC, wherein
the legal representative represents only the estate of the deceased.
His representation cannot be extended to the personal rights which
have extinguished with the death of his predecessor. Now the
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same position is also confirmed by the suits instituted under Legal
Representatives Suits Act, 1855, wherein suits can only be instituted
for cause concerning the pecuniary interest of the estate of deceased
and nothing more. When this is the situation for instituting a suit, a
higher right or a different standard cannot be set for substituting a
legal representative during an appeal process. The procedural law
under CPC, 1986 Act, 2019 Act and substantive law under 1925 Act
or Legal representatives’ Suits Act, 1855 has to be harmoniously
construed.
58. It was also argued that the 1986 Act and 2019 Act, being a welfare
legislation, needs to be interpreted broadly to continue the cause
of action of personal claims. The purpose of the legislation was to
protect the consumer and ensure that proper services are provided
by professionals. Although, the argument looks enticing, we need
to interpret the law based on the statutory language. Section 13 (7)
of the 1986 left this aspect to be governed by Order XXII of CPC
and did not create any such right to continue. Any interpretation to
militate against the same, would be against the statutory intention.
In any case, we are unable to locate a substantive provision within
1986 enactment or 2019 enactment to allow continuation of such
personal claims.
59. From the above, it is clear that the exceptions provided under Section
306 of 1925 Act have to be limited to those espousing personal cause
which do not continue once the plaintiff dies, such as personal claims
arising ex delicto like defamation, personal injury etc., however, any
claim on pecuniary interest of the deceased estate continues. In
order to explain the classification of rights, jurisprudentially, Salmond
classified proprietary rights and personal rights as under35 –
“Proprietary and personal rights. Another important
distinction is that between proprietary and personal rights.
The aggregate of a man’s proprietary rights constitutes
his estate, his assets, or his property in one of the many
senses of that most equivocal or legal term. The sum total
of a man’s personal rights, on the other hand, constitutes
his status or personal condition, as opposed to his estate.

35 P.J. Fitzgerald, Salmond on Jurisprudence, p. 238 (Universal Law Publishing Co. Pvt. Ltd.,
12th Edn., 1966)
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If he owns land, or chattels, or patent rights, or the goodwill
of a business, or shares in a company, of if debts are
owing to him, all these are rights pertain to his estate. But
if he is a free man and a citizen, a husband and a father,
the rights which he has as such pertain to his status or
standing in the law.”
60. This Court in Vinayak Purshottam Dube Vs. Jayashree Padamkar
Bhat36, while deciding the liability of legal heirs of the deceased
opposite party-developer to provide completion certificate,
conveyance deed etc., to the complainant in addition to the monetary
payment arising out of a development agreement, made the following
classification between proprietary and personal rights –

Proprietary rights Personal rights
1. Proprietary rights mean a Personal rights are rights
person’s right in relation to arising out of any contractual
his own property. Proprietary obligation or rights that relate
rights have some economic or to status.
monetary value.
2. Proprietary rights are valuable. P e r s o n a l r i g h t s a r e n o t
valuable in monetary terms.
3. Proprietary rights are not P e r s o n a l r i g h t s a r e t h e
residual in character. residuary rights which remain
after proprietary rights have
been subtracted.
4. P r o p r i e t a r y r i g h t s a r e Personal rights are not
transferable. transferable.
5. Proprietary rights are the Personal rights are merely
elements of wealth for man. elements of his well-being.
6. Proprietary rights possess Personal rights possess
not merely judicial but also merely judicial importance.
economic importance.

In the light of the above, it is clear that in distinction to an individual’s
personal right which is attached to his status, the proprietary right
relates to his estate. On the other hand, personal right or claim

36 (2024) 9 SCC 398
340 [2026] 5 S.C.R.

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usually includes damages for loss of reputation, pain, and suffering,
etc.
61. A contrary interpretation wherein any claim (inclusive of personal
and proprietary claim) concerning defamation, assault, and other
personal injuries not causing the death of the party, being barred
under Section 306 of 1925 Act, would entail different standards
being adopted for institution of suits under Legal Representative’s
Suits Act, 1855 and continuation of pre-existing suit. The law has to
be read harmoniously. There is no logical or legal reasoning which
can support a contrary interpretation to not allow estate claims with
respect to the categories of exceptions identified above.
62. It needs to be cleared that suppose a decree stands during an
appeal process in favor of the plaintiff and the defendant dies, then
the entire claim is maintainable in appeal. As the decretal amount
has to be satisfied from the estate of the deceased, then the legal
representatives/executors/Administrator of the deceased defendant
may have to prosecute the appeal. However, in case the plaintiff does
not have a decree on the date of his death, then right to continue
necessarily have to be determined is terms of Section 306 of 1925 Act.
63. We may note that this Court herein is only answering the question
on interpretation of the applicable law and not expounding on the
normative requirement as to whether the policy adopted by the
law applicable is correct or there is a need to change. English law
appears to have gone further to preserve tortious liabilities of the
deceased defendant. To this count, even judgments and Haryana Law
Commission have also taken a view to recommend amendments.
We feel that it is appropriate to engage policy experts to debate
the need and necessity of expanding scope of Section 306 of 1925
Act. The policy consideration is best left to the Law Commission to
see whether there is a need to have a re-look at these provisions
for future.
64. What falls from the above discussion are as under –
i. The common law maxim ‘actio personalis moritur cum persona’
in India has been statutorily modified by various statutory
instruments such as Fatal Accidents’ Act of 1855, Legal
representatives’ Suits Act of 1855, Indian Succession Act of
1925, etc.;
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ii. That the legal representative of the deceased can institute a
fresh suit or be sued afresh in terms Legal Representatives
Suits Act, 1855 or in terms of Section 306 of Indian Succession
Act, 1925;
iii. Continuation of suit by or against the legal representative
of the deceased has to be in terms of Section 306 of Indian
Succession Act, 1925 (substantive law);
iv. Procedural prescription under Order XXII of CPC, concerning
substitution of legal representative of the deceased party
should be harmoniously construed with Section 306 of Indian
Succession Act.
v. The continuation of ‘right to sue’ under Order XXII Rule 2 read
with Rule 4 is to be seen on the date of death.
vi. Generally, all rights and liabilities to maintain a suit are carried to
the legal representative under Section 306 of Indian Succession
Act, 1925. However, when adjudicating claims under 1 st
exception to Section 306 of the Indian Succession Act, 1925,
personal injury claims abate, while claims for or against the
estate of the deceased survive.
65. Having understood the law, suppose, a doctor/opposite party in a
consumer complaint involving allegations of medical negligence
meets an unfortunate demise during the pendency of complaint. As
such, the question of medical negligence remains undecided due
to unproven allegations. Likewise, if such demise takes place at the
appellate stage37, the issue of medical negligence already stands
adjudicated, either in favour of or against the doctor by the lower
forum. There might be concurrent findings qua medical negligence
or conflicting decisions or reversal at the appellate stage. Ultimately,
as on the date of the doctor’s demise, only two situations can arise,
i.e., either an enforceable decree exists against him, or the consumer
complaint against him stands dismissed. Therefore, what becomes
essential at the relevant stage is to see, whether any enforceable
decree against the doctor existed as on the date of the death of
his doctor.

37 Inclusive of revisional stage.
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66. Before we part, a reference needs to be made to five judge bench
judgment of NCDRC in Balbir Singh Makol Vs. Chairman, Sir
Ganga Ram Hospital and Others38, wherein while dealing with
the issue regarding payment of compensation concerning medical
negligence by the alleged negligent doctor who had died during
pendency of complaint, it was observed as thus –
“10. In the complaint the main allegation of negligence is
against Dr. Makhani who performed the operation at Sir
Ganga Ram Hospital who was the Doctor-in-charge in the
said case. Before the case could reach its culmination the
said Doctor, i.e. Dr. Makahni, died. Thus, the allegations
could neither be rebutted nor could he have an opportunity
to defend himself. In a tort of medical negligence, the
cause of action is personal against the person who has
been negligent in discharging his duties and that the
cause of action does not survive against his estate or
the Legal Representatives. However, in case the trial
had been completed and a decree/judgment had been
passed against the said deceased, that amount payable
under the decree could be recovered form the estate of
the deceased and the deceased and in such event the
legal representatives of the deceased could be brought on
record. But, that did not happen in the present case and
even the question whether Dr. Makhani had been negligent
in the discharge of his duties as a Surgeon could not be
adjudicated upon. In this view of the matter, the maxim
actio personalis moritur cum persona, as a general rule is
applicable to actions in torts and, therefore, the cause of
action against the party against whom an action in tort is
brought is extinguished on his death. The maxim means
that personal right of action dies with the person in other
words death destroys the right of action. The right to sue
will be extinguished. In this connection a reference be
made to the following, among other, rulings.
11. In G. Jayaprakash v. The State of Andhra Pradesh
reported in AIR 1977 A.P. 20 (22) the Hon’ble Supreme
Court held as under:

38 2001 (1) CPR 45
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“The death of the doctor extinguished his liability
for damages and the suit against him stood
abated. The maxim, “actio personalis meritur
cum persona” applied to the case.
In the 8th Edn. Of Winfield on Tort at p.740. the
following passage occurs:
In case of a lawful surgical operation in general
negatives the liability. But in a case where
actionable negligence is committed by the
doctor which amounts to a personal wrong
done by him, he may be liable of damages.
But his death extinguishes his liability in tort
and the right to sue also gets extinguished.
So, I see no force in the contention that the
3rd defendant’s estate was benefited by the
wrong done by him.”

*** *** ***

13. The Hon’ble Supreme Court while considering the
question of bringing on record the legal representatives
of the deceased who was sued for damages in a tort
of defamation was considered and answered likewise
in the case of Melepurath Sankunni Ezhuthassan v.
Thekittil Geopalankutty Nair, reported in AIR 1986 SC
411. That was the case where the suit for defamation
had been dismissed and the plaintiff had filed an appeal.
During the pendency of the appeal, the Defendant
who was being sued for defamation had died. The
Supreme Court held that his legal representatives could
not be brought on record as the cause of action stood
extinguished.
14. In paragraph 7, the Hon’ble Supreme Court has
observed as under:
“Where a suit for defamation is dismissed and the
plaintiff has filed an appeal, what the appellant-plaintiff
is seeking to enforce in the appeal in his right to sue
for damages of defamation and as this right does
344 [2026] 5 S.C.R.

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not survive his death, his legal representative has
no right to be brought on the record of the appeal in
his place and stead if the appellant dies during the
pendency of the appeal. The position, however, is
different where a suit for defamation has resulted in
a decree in favour of the plaintiff because in such
a case the cause of action has merged decree and
the decretal debt forms part of his estate and the
appeal form the decree by the defendant becomes
a question of benefit or detriment to the estate of the
plaintiff-respondent which his legal representatives
is entitled to uphold and defend and is, therefore,
entitled to be substituted in place of the deceased
respondent-plaintiff.”
In light of the law discussed above, we do not subscribe to the ratio
of NCDRC in Balbir Singh Makol Case (supra). Five judge bench
of NCDRC therein seem to have erred on following counts –
(a.) Applied common law maxim actio personalis moritur cum
persona, by failing to read the statutory modification which are
carried out by various enactments in India;
(b.) Misread the ratio in Melepurath Sankunni Ezhuthassan Case
(supra) and failed to limit the same to facts of the case, which
was solely arising from personal injury claim;
(c.) Made the first category of exceptions under Section 306 of 1925
Act absolute and extended the bar to claims of pecuniary loss
against the estate as well;
67. In the context of Rule 4 of Order XXII of CPC, one has to understand
and see whether the right to sue against such alleged medically
negligent doctor survives or not upon his death. As discussed
earlier, the ‘right to sue’ means the right to seek relief through
legal proceedings. Such proceedings, in a general sense, are
instituted against the opposite party/defendant(s), who possess
a corresponding right to defend, as opposed to the claimant’s
right to prosecute. The right to defend is intrinsically linked to,
and arises from the right to prosecute, and vice-versa. Therefore,
for the continuation of proceedings, it is essential that both rights
co-exist. Nonetheless, in view of the preceding discussion and the
[2026] 5 S.C.R. 345

Kumud Lall v. Suresh Chandra Roy (Dead) Through Lrs and Others

statutory framework provided in 1986 Act as well as 2019 Act, we
conclude that upon the death of the alleged medically negligent
doctor, his/her legal heirs can be impleaded and brought on record.
Consequently, the extent of liability will be determined based on
the pleadings and evidence presented. The question is answered
accordingly.
68. The complainant had succeeded before the District Forum and
was awarded compensation. However, when taken in appeal by
doctor, the SCDRC allowed the same and set-aside the award.
Aggrieved, the original complainant preferred revision before
NCDRC, pending which, the doctor/opposite party passed away
on 04.08.2009. As borne from records, ‘right to sue’ if any subsists
qua claims against the estate on the death of the opposite party
in terms of Section 306 of Indian Succession Act, 1925 read with
Order XXII Rule 2 and 4 of CPC. In order to establish the claims,
the NCDRC is duty bound to adjudicate the negligence aspect, if
any by the deceased doctor and resultantly adjudicate the surviving
claims.
69. Before we conclude, it is necessary to state that question as to what
claim can be attributed to the accretion of the deceased defendant’s
estate needs to be carefully analyzed by NCDRC as we have dealt
only with the question of law. Of course, exhaustive list of these
items cannot be given, since it would depend upon pleadings and
proof brought before the Court. It may be relevant to note that the
Claimant has the duty to first establish the negligence of the deceased
doctor and the claims on the estate recoverable as per Section 306
of the 1925 Act.
70. We may add that the Impugned Order II confuses claims attributable
to estate and holds that any adjudication on merits can be recoverable
from the estate of the deceased doctor. Rather, the Court has to
only look at claims which are maintainable as against the estate,
rather than adjudicating personal claims which have elapsed with
the death of the doctor.
71. We must also place on record appreciation for the invaluable
assistance of the Amicus Curiae, Mr. Raghenth Basant, learned
senior counsel and Mr. Varun Kapoor, learned counsel, whose erudite
submissions have been of immense help to this Court.
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CONCLUSION
72. In light of law laid down in para 64 above, the matter is remitted to
NCDRC to be adjudicated within six months from date of this order.
Consequently, the impugned order dated 26.05.2010 (Impugned
Order I) passed in M.A. No. 1214 of 2009 (Application for substitution)
in Revision Petition No. 432 of 2006 and order dated 24.05.2018
(Impugned Order II) passed in M.A. No. 324 of 2011 (Review) in
Revision Petition No. 432 of 2006 and R.A. No. 70 of 2011 (Review)
in Revision Petition No. 432 of 2006 are hereby set-aside and the
revision petition is restored to its original number.
73. Accordingly, the present appeals stand disposed of in above terms.
Pending application(s), if any, shall stand disposed of.

Result of the case: Appeals disposed of.

†
Headnotes prepared by: Nidhi Jain