The central legal point established in the judgment is that the cause of action for defamation does not survive under Section 306, Succession Act.

Kuppuswami Ayyar, J.

1. The petitioners seek to be brought on record as the legal representatives of the appellant in S. A. No. 309 of 1943. The original appellant who was the plaintiff filed the suit to recover the expenses incurred by him in prosecuting the defendants for an offence punishable under Section 500, Penal Code. The defendants were said to have sent a petition to the President District Board of Chingleput imputing bad character and dishonesty to the plaintiff, and he claimed in the suit not general damages, but only the money said to have been expended in connexion with the criminal case. The first Court dismissed the suit on the ground that though it was maintainable, it was barred by limitation. On appeal the learned District Judge of Chingleput found that the suit was not maintainable and that if it was maintainable it was barred by limitation. After the second appeal was filed the appellant died and the petitioners file this petition to be brought on record as his legal representatives. The respondents oppose the application on the ground that the cause of action did not survive and therefore that the appeal abated and that consequently the legal representatives could not be brought on record. Therefore the only question for consideration is whether the cause of action survived. The cause of action for the suit is the alleged libel contained in the petition sent to the President of the District Board of Chingleput. It is true in the plaint it is definitely stated that the claim for general damages was reserved and that the suit was filed only for the actual expenses incurred in connexion with the prosecution of the offence punishable under Section 500, Penal Code. But that does not make the cause of action anything different, for it is the fact that they sent the petition that is put forth as the basis of the expenses incurred by the plaintiff.

2. Under Section 306, Succession Act, the cause of action for defamation does not survive. It is urged for the petitioners that the suit being one for special damages and not for general damages, the cause of action would survive to the heirs or the legal representatives inasmuch as the estate of the deceased had incurred the loss to the extent of the amount claimed by reason of the prosecution necessitated by the action of the defendants in having sent such a petition. The act of the plaintiff in launching the prosecution was a voluntary act, and so far as the defendants are concerned the cause of action against them was the sending of the petition and consequently the cause of action in this case was the defamation. In Palaniappa v. Rajah of Ramnad A.I.R l926 Mad. 243 the question had to be considered in connexion with a suit for damages for malicious prosecution. The damages in that suit were claimed under two heads : one was general damages and the other was by way of special damages under two heads, viz., vakils fees paid by him and the travelling and other incidental expenses for getting the witnesses for the purpose of defending the prosecution launched against him. It was contended that at least in respect of the special damages it would survive. The plaintiff died pending the litigation. It was pointed out that the cause of action in respect of both was the launching of the prosecution and that the legal representative can sue only for a tangible measurable pecuniary loss caused to the estate by reason of the tortious act, and that such expenses, viz., expenses incurred for paying the vakil and for travelling expenses cannot be said to be losses to the estate of the deceased and that it must be treated as merely incidents of the main cause of action and not as giving rise to a separate head of liability enuring after the death of the party to the legal representative. This is a decision of a Bench, and in the face of this decision, I do not think it could be said that when the claim is only for special damages the claim would survive to the legal representa