RUSTOMJI DOREBJI Vs. WHNURSE AND PARTHASARATHY NAIDU

JUDGEMENT

(1.) The sole question we have to decide is what is the true construction of Section 89 of the Probate and Administration Act of 1881. Mr. Hakim at one time tried to argue that Act XII of 1855 must be deemed not only to give a fresh cause of action for and against representatives of those who had committed or suffered civil wrongs, but also by necessary implication to have prohibited the abatement of suits commenced by the wronged against the wrong-doer during the life-time of both by reason of the death of either party. It may have been an omission of the legislature but a close scrutiny of the text makes it reasonably clear that no provision was made in that enactment for the case of a suit already pending when one of the parties dies. We are thus left to the construction of Section 89 of the Act of 1881 which runs as follows: All demands whatsoever, and all rights to prosecute or defend any suit or any other proceeding, existing in favour of or against a person at the time of his decease, survive to and against his executors or 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 granting it would be nugatory.

(2.) There are two possible constructions, and each has commended itself to an Indian Bench. The Calcutta High Court has held that the words personal injuries not causing the death of the party should be taken to mean bodily injuries of a higher degree than assault. The Bombay Court, and more than one Judge of this Court, has interpreted personal injuries as meaning wrongs to the person which do not necessarily cause damage to the estate of the person wronged. In that case, the section would practically reproduce the maxim of the English Common Law-- actio personalis moriter cum persona--with its statutory modifications.

(3.) With great reluctance, we feel compelled to accede to the latter view. The principle that is involved in the maxim is one that obviously works great injustice and its adoption into the common law has been regretted by eminent English Judges. The draftsman of the statute of 1881 could easily have drafted a section which abolished the rule and all its consequences, and preserved causes of action in tort nowithstanding the death of either the wronged or the wrong-doer. That he certainly did not do, for in express terms he excludes from preservation causes of action for assault or defamation. If it was not intended to abolish the maxim, how much of it was intended to be preserved? On the appellant s construction, there was intended to be preserved a wholly arbitrary selection of the possible cases, guided by no logical principle whatever. It is impossible to see why defamation should be in one category and malicious prosecution and false imprisonment in the other.