The doctrine of actio personalis moritur cum persona does not apply in India, and the cause of action against a deceased person's estate survives to and against his executors and administrators, as regulated by Section 89 of the Probate and Administration Act.

JUDGMENT

Page, J. - The suit out of which this appeal arises was brought to recover damages for negligence. The father of the first defendant, Maharaja Ranjit Sinha, was the executor of the estate of the plaintiff's husband and the certificated guardian of her property. During the period in which he bore this relationship towards the plaintiff he lent out of the estate of, the plaintiffs' husband a sum of Rs. 2,000 upon the security of a promissory note. In substitution of that note a new promissory note was executed by the parties to the previous note for Rs. 2,500 on the 14th March 1914. No steps were taken by the Maharaja to recover the amount of this promissory note which was payable on demand, the result being that on the 14th March 1917 the cause of action upon the promissory note became barred, by limitation. On the 3rd May 1918 the Maharaja died, and was succeeded by his son the first defendant. Between 1918 and 1920 when the plaintiff reached her majority the Defendant No. 1 was her certificated guardian. On the 3rd May 1921, the plaintiff instituted the present suit against the Maharaja's eldest son and his two brothers, as heirs of the Maharaja. The relief sought, however, was claimed against the first defendant as representing the estate of his father. The plaintiff in the suit claimed damages caused by the negligence of the Maharaja in permitting the cause of action upon the promissory note of 1914 to become time-barred. She also claimed interest. Under the promissory note interest was fixed at six per cent.

2. Both the lower Courts decreed the suit in favour of the plaintiff, but whereas the trial Court decreed the suit against the estate of the late Maharaja for the amount of the principal and proportionate costs and interest at the rate of 6 per cent, per annum up to the date of his death, the lower appellate Court varied the decree by allowing additional interest at the same rate from the death of the Maharaja until the majority of the plaintiff in 1920.

3. On farther appeal to the High Court the learned vakil on behalf of the 1st defendant contended that the doctrine of actio personalis moritur cum persona applied to this cause of action, and inasmuch as the Maharaja's estate admittedly has not been benefited as the result of the tort, the cause of action against the Maharaja did not survive against his executors and administrators.

4. In our opinion, this contention is misconceived. In India the doctrine of actio personalis moritur cum persona does not form part of the law. Claim by and against the representatives of a deceased person are regulated by Section 89 of the Probate and Administration Act (5 of 1881) and also by the Legal Representatives' Suits Act of 1855 so far as the latter enactment is not inconsistent with the former. It is, therefore, not necessary to refer to the English case law in connexion with the doctrine of actio personalis moritur cum persona. u/s 89 of the Probate and Administration Act of 1881 it is provided that

all demands whatsoever and all rights to prosecute or defend any suit or other proceedings existing in favour of or against a person, at the time of his decease survive to and against his executors and 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 where after the death of the party the relief sought could not be enjoyed or the granting of it would be nugatory.

5. In Krishna Behari Sen v. The Corporation of Calcutta [1901] 31 Cal. 993 the words

other personal injuries not causing the death of the party

were construed by Chief Justice Mac-lean, Mr. Justice Sale, and Mr. Justice Bodilly

to refer to physical injuries to the parson which do not cause death.

6. On the other hand, in Rustomji Dorabji Vs. W.H. Nurse and Parthasarathi Naidu, AIR 1921 Mad 1 , in Motilal Satyanarayan Vs. Harnarayan Premsukh, AIR 1923 Bom 408 , and in Punjab Singh v. Ramauta