Death, Marriage and Insolvency of Parties
Chapter Thirteen
Syllabus topic 2.1, "Parties to a suit (Order I to Order III). Death, marriage and insolvency of parties (Order XXII)"
Pages 72 to 77 of 365
In one line
A suit does not die because a party does. It abates only where nobody applies in time to bring the dead party's representative on the record.
Why the Code deals with this
Litigation takes years and people die in the middle of it. If a suit ended whenever a party died, a defendant could simply wait, and a plaintiff's family would lose a claim that was nearly won. If it carried on regardless, a decree would be passed against somebody who was not there to defend it.
So the Code asks one question first, and everything follows from the answer: does the right to sue survive? If it does, the suit continues, with the estate represented. If it does not, the suit is at an end because there is nothing left to litigate.
The governing rule: Rule 1
Rule 1: the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
That is the principle, and it is what makes abatement the exception rather than the rule. A right to sue survives in most civil matters: a debt, a claim to property, a contract. What does not survive is a purely personal action, on the old maxim actio personalis moritur cum persona, an action which is personal dies with the person, of which defamation and personal injury claims are the classic examples.
One of several parties dies: Rule 2
Rule 2: where there are more plaintiffs or defendants than one and any of them dies, and the right to sue survives to the surviving plaintiffs alone, or against the surviving defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of, or against, the survivors.
Note that no application is needed and there is no question of abatement. The Court simply records the death and the suit goes on. Rule 2 applies only where the right to sue survives to or against the survivors alone, which is the case with joint rights.
A sole party dies, or the right does not survive to the survivors: Rules 3 and 4
Rule 3(1): where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone, or where a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court shall, on an application made in that behalf, cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
Rule 3(2): where within the time limited by law no such application is made, the suit shall abate so far as the deceased plaintiff is concerned; and on the defendant's application the Court may award him the costs he incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
Death, Marriage and Insolvency of Parties
Rule 4(1) does the same for a defendant: where one of several defendants dies and the right to sue does not survive against the survivors alone, or a sole or sole surviving defendant dies and the right to sue survives, the Court shall, on an application, cause the legal representative to be made a party and proceed with the suit.
Rule 4(2): a person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
Rule 4(3): where no application is made within the time limited by law, the suit shall abate as against the deceased defendant.
Rule 4(4) is a useful discretion: the Court may, whenever it thinks fit, exempt the plaintiff from substituting the legal representatives of a defendant who failed to file a written statement, or who filed one and then failed to appear and contest at the hearing; and judgment may be pronounced against that defendant notwithstanding his death, with the same force as if it had been pronounced before he died.
So the whole architecture is: the right survives, somebody must apply in time, and if nobody does, the suit abates as to that party.
Marriage and insolvency
Rule 7: the marriage of a female plaintiff or defendant shall not cause the suit to abate, and the suit may notwithstanding be proceeded with to judgment. Where the decree is against a female defendant, it may be executed against her alone. Where the husband is by law liable for the debts of his wife, the decree may, with the leave of the Court, be executed against him also.
Rule 8: the insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors shall not cause the suit to abate, unless the assignee or receiver declines to continue the suit or, where required by the Court, to give security for the costs within the time the Court directs. Where the assignee or receiver neglects or refuses to continue and give security, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency, and the Court may make an order dismissing the suit and awarding the defendant the costs he incurred in defending it, to be proved as a debt against the plaintiff's estate.
The pattern is the same in all three. Death, marriage and insolvency do not by themselves end a suit. Something further has to happen, or fail to happen, before it does.
Death, Marriage and Insolvency of Parties
Assignment, and the pleader's duty
Rule 10 deals with assignment, creation or devolution of an interest during the pendency of a suit. In such a case the suit may, by leave of the Court, be continued by or against the person to or upon whom that interest has come or devolved.
Rule 10A places a duty on the lawyer: where a pleader appearing for a party comes to know of that party's death, he shall inform the Court, and the Court shall thereupon give notice of the death to the other party. This exists because the opposite side often has no way of knowing, and the clock for substitution is running.
The consequence of abatement: Rule 9
Rule 9(1): where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
Rule 9(2): the plaintiff, or the person claiming to be the legal representative of a deceased plaintiff, or the assignee or receiver of an insolvent plaintiff, may apply to set aside the abatement or dismissal; and if it is proved that he was prevented by sufficient cause from continuing the suit, the Court shall set it aside on such terms as to costs as it thinks fit.
Rule 9(3): section 5 of the Limitation Act applies to such applications, so delay in making the application can itself be condoned on sufficient cause.
The Explanation preserves something important: nothing in the rule bars, in any later suit, a defence based on the facts which constituted the cause of action in the suit that abated. So abatement bars a fresh suit, but the same facts may still be pleaded defensively.
Compare this with Order IX Rule 9, where a dismissal for the plaintiff's non-appearance likewise bars a fresh suit and likewise has an application to set aside as its only remedy. The Code uses the same device in both places. See [Appearance and Consequences of Non-appearance].
A worked example
Ishaan sues Jyoti and Kabir jointly for possession of land. Two years in, Jyoti dies.
First question: does the right to sue survive? A claim to land plainly survives. Rule 1 therefore means the suit does not abate merely because Jyoti died.
Second question: does it survive against Kabir alone? If the liability was joint and the whole claim can be pursued against Kabir, Rule 2 applies: the Court records the death and the suit proceeds against Kabir. Nothing further is needed.
If it does not survive against Kabir alone, Rule 4(1) applies: on an application, Jyoti's legal representative is brought on the record. Under Rule 4(2) that representative may make any defence appropriate to his character as legal representative, which includes saying the estate has no assets.
Death, Marriage and Insolvency of Parties
Nobody applies within the time limited by law. Rule 4(3): the suit abates as against Jyoti. And under Rule 9(1) no fresh suit may be brought on the same cause of action.
Ishaan says he did not know she had died. Two things help him. Rule 10A obliged Jyoti's pleader, on learning of her death, to inform the Court, which was then to notify the other side. And Rule 9(2) allows him to apply to set aside the abatement on proof that he was prevented by sufficient cause from continuing, with section 5 of the Limitation Act available under Rule 9(3) for delay in making even that application.
Change one fact. Suppose Jyoti had never filed a written statement and had never appeared. Rule 4(4) allows the Court to exempt Ishaan from substituting her representatives altogether, and judgment may be pronounced against her notwithstanding her death.
Change another. Suppose instead of dying Jyoti marries. Rule 7: marriage does not cause the suit to abate, and it proceeds to judgment; a decree against her may be executed against her alone, and against her husband only with the leave of the Court where he is by law liable for her debts.
And another. Suppose Ishaan is adjudged insolvent. Rule 8: the suit does not abate unless the assignee or receiver declines to continue it, or fails to give security for costs when required. Only then may Jyoti and Kabir apply to have it dismissed.
Finally. Suppose Kabir sells his interest in the land during the suit. Rule 10: the suit may, by leave of the Court, be continued against the purchaser to whom the interest has devolved.
What it does not mean
Death does not end a suit. Rule 1: not if the right to sue survives.
Rule 2 requires no application. The Court simply records the death where the right survives to or against the survivors alone.
Abatement is not automatic in the sense of being unavoidable. It follows only from a failure to apply within the time limited by law, and Rule 9(2) allows it to be set aside for sufficient cause.
Abatement does not bar a defence. The Explanation to Rule 9 preserves the same facts as a defence in a later suit; it bars only a fresh suit.
Marriage and insolvency do not abate a suit either, unless the further conditions in Rules 7 and 8 are met.
Quick revision
Rule 1: death does not abate a suit if the right to sue survives. What does not survive is a purely personal action.
Death, Marriage and Insolvency of Parties
Rule 2: where one of several parties dies and the right survives to or against the survivors alone, the Court records the death and the suit proceeds. No application needed.
Rules 3 and 4: where a sole party dies, or the right does not survive to the survivors alone, the legal representative is brought on the record on an application; if none is made within the time limited by law, the suit abates. Rule 4(2): the representative may make any defence appropriate to that character. Rule 4(4): the Court may exempt the plaintiff from substituting the representatives of a defendant who never filed a written statement or never contested.
Rule 7: marriage does not abate a suit. Rule 8: insolvency of a plaintiff does not abate it unless the assignee or receiver declines to continue or to give security.
Rule 10: on assignment or devolution of an interest, the suit may be continued by leave of the Court. Rule 10A: a pleader must inform the Court of his client's death.
Rule 9: abatement or dismissal bars a fresh suit on the same cause of action; it may be set aside on proof that the applicant was prevented by sufficient cause; section 5 of the Limitation Act applies; and the Explanation preserves the same facts as a defence in a later suit.
Test yourself
1. Does a suit abate on the death of a party? Not if the right to sue survives. Order XXII Rule 1 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives, and abatement follows only where no application to bring the legal representative on the record is made within the time limited by law.
2. One of several defendants dies and the right to sue survives against the others alone. What happens? Under Rule 2 the Court causes an entry to that effect to be made on the record, and the suit proceeds against the surviving defendants. No application for substitution is required.
3. What is the effect of abatement? Under Rule 9(1) no fresh suit may be brought on the same cause of action. The remedy is an application under Rule 9(2) to set aside the abatement, which the Court shall grant if it is proved that the applicant was prevented by sufficient cause from continuing the suit, and section 5 of the Limitation Act applies to such applications.
4. Does abatement prevent the same facts being used later? Not as a defence. The Explanation to Rule 9 provides that nothing in the rule bars, in any later suit, a defence based on the facts which constituted the cause of action in the suit which abated.
Death, Marriage and Insolvency of Parties
5. What is the effect of the marriage of a female party? Under Rule 7 the marriage does not cause the suit to abate and it may be proceeded with to judgment. A decree against a female defendant may be executed against her alone, and where her husband is by law liable for her debts, it may with the leave of the Court be executed against him also.
6. What duty does a pleader have when his client dies? Under Rule 10A, where a pleader appearing for a party comes to know of that party's death he shall inform the Court, and the Court shall give notice of the death to the other party.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.