This article is written by Raghav Digi, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.com. Here he discusses “Suits in which one or all of the plaintiffs have died”.

Don’t think of the fees, you must engage a Senior Advocate at the High Court,

That’s what my counsel from the Session Court told me when a similar thing happened in one of my own cases, where I was fighting an eviction case against a licensee living in my premises for the last 38 years and one of the Plaintiff’s died during the trial of the suit. 

The next thing I knew, my case was abated in total by the Hon’ble Session Court on the ground that the right to sue does not survive for the rest of us (Plaintiffs), since one of the plaintiff’s had died during the trial and we were unable to bring the legal representatives on record of the deceased for reasons unexplainable (family dispute)

Now, no fresh suit could be made against the licensee living on my premises and we were left with no other option than to do a First Appeal at the High Court.

Introduction 

There are two aspects to this, one is where all the plaintiffs have died and the other is when one of several plaintiffs has died during the trial. 

Let’s start by saying that an accident has occurred or a natural calamity has happened and all the plaintiffs to a suit have died after such a catastrophe, now what will happen ?, since this kind of a scenario is not usual and is unheard of, but many people are unaware of whether the lawsuit filed by the deceased would continue or not.

In such cases, the decision of the court and proceedings of the suit entirely depends on the cause of action of the suit filed by the plaintiffs, isn’t it amusing when we talk of a unified system of law in India , the law itself divides us into so many categories, in most cases depending on the cause of action of the suit, the right to sue survives after the death of the plaintiff/s and on an application U/S 22 R 3 (1) of the Civil Procedure Code, 1908, the legal representatives of the deceased may be brought on record to continue the suit but in some cases, for example , in a case of 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 also in cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory, the cause of action terminates automatically on the death of the plaintiff/s and the case is abetted by the court according to the due procedure of law. 

Let me give you an example, in a case of divorce, A sues his wife and during the pendency of the suit A dies, then the cause of action does not survive for his legal representatives.

Another example would be, in a consumer case where the plaintiff files a case for a defective product and the plaintiff dies during the trial then the right to sue ends with the death of the plaintiff.

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There are again two aspects to the above-mentioned type of cases, one class is where the decree has not been passed decreeing the suit for damages against the defendant and the second type is where the decree has been passed for awarding damages but the other side/defendant against whom the decree has been passed has gone up in appeal, here the supreme court has held that in the first instance wherein suits no decree has been passed, the right to sue does not survive and the suit abates in view of Section 306 of the Indian Succession Act, 1925. In the second class where a decree of damages is passed, the supreme court has observed that the decree becomes a part of the estate of the deceased plaintiff and therefore the death of the plaintiff during pendency of an appeal filed by the defendant against whom the suit is decreed will not result in abatement. This has been covered by the judgment of the Supreme Court in the case of MelepurathSankunniEzhuthassan Vs. ThekittilGeopalankuty Nair, (1986) 1 SCC 118.

In the same instance, where the plaintiff dies after hearing and before pronouncement of judgment, the suit shall not abate. The same principle will apply in case of death of the plaintiff after passing of preliminary decree and before final decree. 

BUT, it is important to note that, if an executor is appointed by the plaintiff/s before their death, to either execute the last Will of the deceased person/s or an administrator is appointed by a competent authority to administer the estate of the deceased person when there is no executor, by an application to the court made by the executor or the administrator, the suit shall proceed at the instance of the executor or the administrator.

According to the above paragraph and conferring with Section 306 of the Indian Succession Act, 1925, it is amply clear that the right to sue dies with the plaintiff in some special cases but since the Indian Succession Act, 1925 only applies to Hindus, Buddhists, Jains, and Sikhs, what happens to the others living in our country?

Well, the Civil Procedure Code, 1908, governs every Indian,so in the instance of the Plaintiff/s belonging to caste other than Hindus, Buddhists, Jains, and Sikhs, in case of their death during trial, they would be governed by the provisions of the Civil Procedure Code, 1908 and in cases for succession, by their respective laws, for example in Muslims, by the Muslim Personal Law (Shariat) Application Act, 1937.

Therefore, if all the plaintiffs to a suit die without leaving behind any legal representatives then the court depending on the type of cause of action has the powers to abate the suit in total and the court may award the defendant the costs which may have been incurred in defending the suit, to be recovered from the estate of the deceased plaintiff or if an administrator or an executor has been appointed before the death of the plaintiff then the suit shall continue at the instance of the administrators or the executor and or if the plaintiff dies leaving behind his legal representative then within the time period prescribed by the Limitation Act, 1963, the Legal Representatives may be brought on record and made a party to the suit for it to continue.

Now, in case where one of the several plaintiffs or a sole plaintiff has died during pendency of the suit, the court has to see whether or not the right to sue survives, except in the cases as mentioned above (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 also in cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory), if the right to sue survives then the suit can be continued by the heirs or legal representative of the deceased party.

The general rule is that since a deceased person cannot be a party to the legal proceedings, “while the death of a party does not abate a pending action where the cause of action survives, nevertheless the effect of the death is to suspend the action as to the decedent until someone is substituted for the decedent as a party to the proceedings. Until someone is properly substituted as a party after the action is thus suspended, further proceedings in the case are void as to the decedent” until his/her legal representative/s are substituted as party to the suit.

What is abatement and why does it happen

Abatement, in law, means the premature ending of a suit before final adjudication of an action. In other words, it means, discontinuation, cessation or elimination. The commonest grounds for abatement is the pendency of another suit or death of a party. 

Other grounds for abatement of action are defects of parties (such as misnomer or incapacity); lack of jurisdiction of the court; dissolution of a corporation; premature commencement of the action; and transfer of a party’s interest in the lawsuit.

Conclusion 

Generally, under the civil law or under the common law, a lawsuit was thought to abate automatically on the death of a party, However, it depends on the cause of action of the suit, whether the cause of action abated depending on whether or not the lawsuit was considered personal to parties. 

As mentioned above, in most cases an executor or an administrator is substituted in place of the deceased to continue the suits but a lawsuit may not be revived unless the underlying cause of action continues to have a legal existence after the party’s death. 

Today most cases do not abate due to the death of the party, there can be multiple reasons for abatement of a suit.