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, Indian 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/s. Rajah of Ramnad ( 26) 13 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., vakil's 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 representative. In a similar case in Subramania v. Venkatramier ( 16) 3 A.I.R. 1910 Mad. 1068 it was pointed out that the cause of action was a single indivisible one and it was a personal transaction.
(3.)A number of English authorities were cited for the petitioners for their contention that in cases of special damages the right of action would survive because the injury was by the dimunition of the personal estate of the deceased. But all of them have no application to the facts of this case. Bradshaw V/s. Lancashire & Yorkshire Ry. (1875) 10 C.P. 189 is a case of an action for breach of contract and the damage complained of was a damage to the personal estate arising in the lifetime of the testator for medical expenses, the loss occasioned by his inability to attend to his business. The breach of the contract in this case was on the part of the defendant railway company to take due care in carrying the testator while he was a passenger in the train. The facts of this case relating to the breach of contract have no application to the facts of this case, which is one in tort. The decision in Finley V/s. Chirrey (1888) 20 Q.B.D. 494 also relates to an action for breach of promise to marry, and the question there was with regard to the special damages. Hatchard V/s. Mage (1887) 18 Q.B.D. 771 related to an action for defamation in which there were two claims, one for libel and the other was in the nature of slander of title. It was held that the claim for libel did not survive, while the claim in respect of slander of title survived and could be continued by his personal representatives. That was a case of causing direct injury to the property, and therefore survived. Consequently that decision has no application to the facts of this case, for in this case the act complained of, viz., the defamation, did not directly cause injury to the estate of the plaintiff. Twycross V/s. Grant (1879) 4 C.P. 40 also was a case of injury directly caused to the personal estate, and at p. 47 this is what Cotton L. J. observes: It has been argued that this is an action to recover damages; in one sense that is true; but it is an action for wrong done, not to the intestate himself, but to his property; therefore the right to sue after his death was transmitted to his personal representative." Reliance was placed on the following observations in Phillips V/s. Homfrey (1883) 24 Ch. D. 439 at p. 466 for the contention that where the claim is for liquidated damages it would survive but not when it is for an unliquidated damages: "It is of the essence of the rule that claims which are indeterminate in their character shall not be pursued against the estate of a person after his death. If the claim is one for unliquidated damages, and has not been perfected by judgment at the time of the death of the defendant the rule applies : Smith V/s. Eyles (1742) 2 Atk. 385." These observations were made with regard to a plea set up by the legal representative that in respect of the enquiries in respect of which the claim was said to have abated, "his liability must be taken to have been pronounced, and that what remained to be done in the action was of a ministerial character only, and would not be affected by the maxim actio personalis moritur cum persona." Therefore these observations have no application to the contention in this appeal. I therefore find that the cause of action in the appeal did not survive and that consequently the appeal abated and the petitioners are not entitled to be brought on record as the legal representatives in the second appeal. The petition is accordingly dismissed with costs. Leave refused.