Survival Of 'Right To Sue' On Legal Representatives Of Deceased Litigant : Supreme Court Explains Principles

In a recent judgment, the Supreme Court has summarised the principles regarding the continuation of the right to sue to the legal representatives, following the death of a party.The Court clarified that traditional maxim actio personalis moritur cum persona (a personal action dies with the person) is not absolute in India and has been modified by statutes such as the Fatal Accidents Act, 1855, Legal Representatives' Suits Act, 1855, and the Indian Succession Act, 1925.Legal representatives of a deceased person may institute fresh proceedings or be proceeded against, subject to statutory limitations under succession law. Whether a proceeding survives is determined by Section 306 of the Indian Succession Act, not merely procedural provisions.Order XXII of the Code of Civil Procedure, which enables substitution of parties, must be harmoniously construed with Section 306, and cannot expand the scope of survivable claims.The question whether the “right to sue” survives must be assessed as on the date of death of the party. While personal injury claims (such as pain, suffering, defamation) abate, claims relating to pecuniary loss or estate survive and can be pursued against legal representatives.A bench comprising Justice JK Maheshwari and Justice AS Chandurkar summarised these principles, while holding that the legal heirs of a deceased doctor can be proceeded against under the Consumer Protection Act, in respect of a claim of medical negligence.The bench summarised the following principles :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.; 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 1st 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.Also read - Doctor's Legal Heirs Liable For Medical Negligence Under Consumer Protection Act : Supreme CourtCause Title: Kumud Lall VERSUS Suresh Chandra Roy (Dead) Through LRs and Others (with connected matter)Citation : 2026 LiveLaw (SC) 454Click here to download judgmentAppearance:For Petitioner(s) : Mr. Raghenth Basant, Sr. Adv. (AC) Mr. Akshay Sahay, AOR Ms. Bagavathy Vennimalai, Adv. Ms. Kaushitak Sharma, Adv. Ms. Hima Bhardwaj, Adv. Ms. Sarvshree, AOR Ms. Somyashree, Adv. For Respondent(s) : Mr. Umesh Sinha, Adv. Mr. Gunnam Venkateswara Rao, AOR 2 Ms. Shefali, Adv. Mr. Anil Kumar Singh, Adv. Ms. Himani Chhabra, Adv. Ms. Devyani Mahra, Adv. Mr. Shyam Padman,Sr. Adv. Mr. Jaimon Andrews, Adv. Ms. Piyo Harold Jaimon, Adv. Ms. Asitwathi Shyam, Adv. Ms. Firdousecp, Adv. Mr. Naresh Kumar, AOR Petitioner-in-person, AOR

Survival Of 'Right To Sue' On Legal Representatives Of Deceased Litigant : Supreme Court Explains Principles

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