Author Name:   Bhagwati Dan Charan

it is all about“No abetment by parties death if right to sue survive”.it is abt abatement of the suit by the prties if any of them dies during the pandency of the suit...

“No abetment by parties death if right to sue survive”

In a civil suit, any of the party to the suit dies and if right to sue survive then the suit can be continued by the heirs or legal representative of the deceased party. If in any case where right to sue does not survive the suit will come to an end. The most essential element which affects the abetment of a suit after the death of party is the survival of right to sue; if that is there then the suit can be continued.

The general rule is that suits and actions must be prosecuted by and against living parties. If a person against whom a personal action may be brought dies before suit papers naming such person as defendant have been filed with the court, then such suit papers may be amended to substitute the decedent’s personal representative as party defendant.[1]

Enactments setting up procedure for revival seeks to prevent the arbitrary cessation of a proceeding where the cause of action survives and provide for substitution of the personal representative or other proper party and the continuation of the matter in that party’s name. Upon the death of an indispensable party, the action abates until the deceased party’s estate, or other appropriate legal representative, has been substituted.[2]

A deceased person cannot be a party to a legal proceeding and the effect of the death is to suspend the action as to the decedent until his or her legal representative is substituted as a party. A deceased person cannot be a party to 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.”[3]

Abetment:
Considering the matter of the abatement of an action by the death of a party, as well as the survival and revival of the action, there is a clear difference between the action and the cause of action; a cause of action may survive although a particular action based on it is abated by the death of a party.

Abatement, in law, means discontinuation, cessation, destruction, or elimination. The term is used in several different contexts.
Abatement of an action is the cessation of a particular judicial proceeding because of some fact not affecting the merits of the controversy. The commonest grounds for abatement are the pendency of another suit or the death of a party. To abate a later suit, the pending suit must be in the same jurisdiction, with the same parties and legal issues. At common law, death of a party abated an action but did not necessarily extinguish the legal right on which it depended.

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

There are two types of parties involved in a lawsuit: plaintiffs and defendants. The party who initiates a lawsuit is called the plaintiff. The party against whom an action is brought is the defendant. The plaintiff claims relief, usually monetary, or recovery against the defendant. Laws relating to abatement vary from state to state.

The premature ending of a suit before final adjudication is called abatement of an action. If reasons for abating a suit are not apparent on the pleading filed by the plaintiff, the defendant can move to abate the case. However, if the defendant fails to claim for abetment in his/her answer, the defence will be waived. Court considers a plea for abatement of an action before proclaiming a judgment as a judgment on the plea may affect the final decision in the case.

Right to sue:
A personal action dies with the person, is derivation and source of Latin maxim Actio personalis moritur cum persona Right to sue, other than closely connected with the individuality of the deceased, always survives to or against his legal representatives.

There is a simple experiment to check as to when and how a right to sues survives regardless of the death of a party. There are cases where the plaintiffs mostly sue with regard to some claim which is associated with or vests in their individuality. A suit for damages falls under that nature. If a plaintiff dies during the pendency of suit for damages, the right to sue, which can also be termed as a right to seek relief, would not survive but if he succeeds in getting, a decree for damages and dies during the pendency of his opponent’s appeal, the right would of course survive to his legal representatives. In case of the survival of right to sue the suits do not abate on death of a party but the impleadment or substitution of his legal heirs becomes incumbent within the period of 90 days. This is so because the surviving right has now become vested in the legal heirs. So long as a right is referable to the individuality of a person, it does not survive at the death of that person. The general rule is that all causes of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to or against his legal representatives. This principle is found enacted in the Succession Act as well, with the only exception that rights intimately connected with the individuality of the deceased will not survive based on the famous maxim actio personalis moritur cum personal–a personal right of action dies with the person. A right to sue, other than intimately connected with the individuality of the deceased, will always, survive to or against his legal representatives.

No abatement by the death of parties:
1. Death of plaintiff:
Where the sole plaintiff dies, the suit will not abate, if the right to sue survives. It can be continued by the heirs and the legal representatives of the deceased plaintiff. If the right to sue does not survive, the suit will come to an end.[4]

Where one of several plaintiffs dies and the right to sue survives to the surviving plaintiff or plaintiffs, the court will make an entry to that effect and proceed with the suit by the surviving plaintiff or plaintiffs.[5]

Where one of several plaintiff dies and right to sue does not survives to the survive to the surviving plaintiff or plaintiffs or where the sole plaintiff and the right to sue survives, the court on an application by the legal representative of the deceased plaintiff will make him a party and proceed with the suit.[6]

Where no such application is made in the period of limitation (ninety days), the suit shall abate so far as the deceased plaintiff is concerned. On an application by the defendant, the court may award costs, which might have been incurred by him in defending the suit from the estate f the deceased plaintiff.[7]

Where the plaintiff dies after hearing and before pronouncement of judgement, the suit shall not abate.[8]

The same principal will apply in case of death of the plaintiff after passing of preliminary decree and before final decree.[9]

2. Death of defendant:
Where the sole defendant dies, the suit shall not abate if the right to sue survives. It can be continued against the heirs and legal representatives of the deceased defendant.[10]

Where one of several defendants dies and the right to sue survives against the surviving defendant or defendants, or where the sole surviving defendant dies and the right to sue survives, the court on an application by the legal representative of the deceased defendant, will make him a party and proceed with the suit.[11]

Where no such application is made in the period of limitation (ninety days), the suit shall abate as against the deceased defendant.[12]

The court may, if it thinks fit, exempt the plaintiff from substituting the legal representative of a non-contesting or pro forma defendant and pronounce judgement notwithstanding the death of such defendant.[13]

Where the plaintiff is ignorant of the death of the defendant and the reason is unable to make the application for substitution of the legal representative of the deceased defendant within the period of limitation, and the suit stands abated, he may make an application for setting aside such abetment within the period of limitation , stating that due to ignorance of the death of the defendant he could not make application within time. The court shall consider the application, having due regard to the fact of such circumstances.[14]

In Elliott v. Cline, 184 Ga. 393 (Ga. 1937)[15], the court observed that a cause of action for an injunction survives the death of either party where it relates to property. Whereas, if the acts are of a purely personal character, the right of action abates on the death of the defendant. However, if a suit is for damages and injunction, then the right to damages ex contractu will survive the death of the defendant.

Where the defendant dies after hearing and before pronouncement of judgement, the suit shall not abate.[16] The suit also does not abate on account of the death of an unnecessary party.[17]

Conclusion:-
Generally under the common law, a lawsuit was thought to automatically abate on the death of a party. However, whether the cause of action abated depended on whether or not the lawsuit was considered personal to the parties. For example, contract and property cases were thought to involve issues separate from the parties themselves and did not necessarily abate on the death of a party. On the other hand, personal injury cases including injuries to the person as well as cases of libel, slander, and malicious prosecution were considered personal and did abate at death of the party.

Many states today have statutes that permit the revival of an action that was pending when a party died. In the usual course, an executor or administrator is substituted for the deceased party and the lawsuit continues. A lawsuit may not be revived unless the underlying cause of action continues to have a legal existence after the party’s death. Revival statutes vary from state to state, but today most lawsuits do not abate due to the death of the party.

If two or more persons bring an action to the court and if one of them dies while the action is pending, then the action will not abate if the cause of action survives. The action will continue in the name of a surviving party, or by the representatives of decedent.[18]

After the death of a party, if the right sought to be enforced survives only for or against the surviving plaintiffs or defendants, the action will not abate but will continue for and against the surviving parties. However, the death must be noted on the record.[19]

In common law, if one of the defendants dies, it will not abate an action against the other defendants entirely either in contract or in tort actions.[20]

If the rights of the deceased party, or his/her successors remain in the cause of action, then the matter is either abated or suspended until the action is properly revived and a successor named. A judgment is not entered against the decedent’s successors in interest or against his/her former rights until these steps are taken.[21]

If one of the two co-parties is a necessary party, and the judgment will not have any meaning without him/her as a party, then the action abates entirely upon the co-party’s death and cannot be revived. However, if a valid judgment can be given against the remaining defendants, the death of a party for whom no substitution can be made abates the action only as to the decedent, without possibility of reviver.

References:
Ferk v. County of Lake, 205 Cal. App. 3d 268 (Cal. App. 1st Dist. 1988)
Harbin v. O’Rear, 219 Ala. 173 (Ala. 1929)
Wanamaker v. Springstead, 274 A.D. 1008 (N.Y. App. Div. 1948)
Radha rani v. hanuman Prasad, AIR 1966 SC 216
Elliott v. Cline, 184 Ga. 393 (Ga. 1937)
Jitendra ballav v. dhirendranath, AIR 2004 Ori 148
Campbell v. Napoli, 786 So. 2d 1232 (Fla. Dist. Ct. App. 2d Dist. 2001)
Clark v. Masters, 297 Ga. App. 794 (Ga. Ct. App. 2009)
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[1] Estate of James v. Peyton, 277 Va. 443, 451 (Va. 2009)
[2] Campbell v. Napoli, 786 So. 2d 1232 (Fla. Dist. Ct. App. 2d Dist. 2001)
[3] Clark v. Masters, 297 Ga. App. 794 (Ga. Ct. App. 2009)
[4] R.1
[5] R.2
[6] R3(1)
[7] R 3(2)
[8] R 6
[9] Jitendra ballav v. dhirendranath, AIR 2004 Ori 148
[10] R 1
[11] R 2
[12] R 4(1)
[13] R 4 (4)
[14] R 4(5)
[15] 184 Ga. 393 (Ga. 1937)
[16] R 6.
[17] Radha rani v. hanuman Prasad, AIR 1966 SC 216
[18] Ferk v. County of Lake, 205 Cal. App. 3d 268 (Cal. App. 1st Dist. 1988)
[19] USCS Fed Rules Civ Proc R 25(a) (2)
[20] Harbin v. O’Rear, 219 Ala. 173 (Ala. 1929)
[21] Wanamaker v. Springstead, 274 A.D. 1008 (N.Y. App. Div. 1948)

The  author can be reached at: BhagwatiDanCharan@legalserviceindia.com

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