Defamation of Deceased – Analysing the sustainability of action from Criminal and Civil Law Perspective (Part II)

This is the second part of the bi-partite article series. The first part can be found here. This part focuses on the situation when the plaintiff dies in a civil action for defamation. It also provides for the remedies that are available to the Legal Representatives of the Deceased Plaintiff.

Civil Suit for Defamation-Plaintiff died; Can his Legal Representatives continue the suit

When a party to a suit dies, the first question to be decided is whether the right to sue survives or not? If it does not, there is an end to the suit. If it does, the suit will not abate and can be continued by or against the Legal representatives. But what is right to sue?

Right to Sue?

The words “right to sue” ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.[i]

The expression is not really defined in CPC. Right to sue, simply put, is nothing but right to seek relief. The general rule is that all rights of action and all demands whatsoever, existing in favour of or against a person at the time of his death, survive to or against Legal Representatives[ii].

Exception-Personal Action dies with the Person concerned

In cases of personal actions or in other words actions where the relief sought is personal to the deceased or the rights intimately connected to the individuality of the deceased (Just like Defamation), the right to sue will not survive to or against Legal Representatives. In these cases, the maxim actio personalis moritur cum persona (a personal action dies with a person) applies.[iii]

In the case of Sh. Raghu Nath Pandey and Anr. v Sh. Bobby Bedi and Ors.[iv], the court held:

“No action for defamation can be taken in respect of a dead person since defamation is a personal wrong and the legal right does not survive and is not actionable after the death of the person in view of principle laid down in the maxim ‘actio personalist monitor cum persona’.

Hon’ble Delhi High Court in Mr. Saifuddin Choudhary v Bartaman Limited and Anr.[v], faced the issue that whether on the death of a plaintiff in a suit for recovery of damages alleged to have been caused on account of defamation, the suit survives i.e., whether the right to sue survives and the legal heirs can be brought on record and can they continue the suit for damages filed by the erstwhile plaintiff. It was held that in view of Supreme Court’s judgment in Melepurath Sankunni Ezhuthassan case leaves no manner of doubt on the issue in as much as it is clearly held in this line that where a plaintiff dies during the pendency of a suit, the suit will stand abated.

Hon’ble Rajasthan High Court in Gajanand v Vishnu and Ors[vi] when faced with the question whether cause of action in a Suit for Damages on account of malicious prosecution survives after the death of the plaintiff or not, while drawing an analogy of Section 306 of the Indian Succession Act, 1925  with Order 22 Rule I and II of the Code of Civil Procedure, 1908 held that Section 306 of ISA bars executors and administrators to pursue personal action of the deceased and on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in a better position than executors and administrators and what applies to executors and administrators will also apply to other legal representatives. So it is clear that a cause of action for defamation does not survive the death of the deceased.

Further in a suit for malicious prosecution, Defendant died before Judgment. Full Bench of the High Court held that the right to sue does not survive within the meaning of Order 22 Rule 1.[vii]

Exception to the Personal Action dies with the Person

Hon’ble Apex Court in the case of Melepurath Sankunni Ezhumassan v Thekitlil Geopalankutty Nair[viii] has clearly held that if a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking is to enforce his right to sue for damages for defamation in the appeal and as this right does not survive his death, his legal representatives have no right to be brought on the record of the appeal in his place. However, the position would be different if a suit for defamation has resulted in a decree in favour of the plaintiff/respondent because in such a case the cause of action has merged in the decree and the decretal amount forms part of his estate. The appeal from the decree by the defendant becomes a question of benefit to the estate of the plaintiff-respondent which his legal representatives, are entitled to upheld and defend. They are, therefore, entitled to be substituted in place of the deceased respondent-plaintiff.

In this judgment the Hon’ble Supreme Court has ruled that the suits which are filed for defamation can be divided in two categories.

  • In the first category are those class of suits where no decree has been passed decreeing the suit for damages.
  • The second class is of suits where decree of damages is passed but the other side/defendant against whom the decree has been passed has gone up in appeal.

The Supreme Court has held in the first class where in suits no decree has been passed, the right to sue does not survive and the suit abates in view of Section 306 of the Indian Succession Act, 1925[ix]. In the second class where a decree of damages is passed, the Supreme Court has observed that the decree becomes part of the estate of the deceased plaintiff and therefore death of the plaintiff during the pendency of an appeal filed by the defendant against whom the suit is decreed will not result in abatement.

In AIADMK, Madras v K. Govindan Kutty[x] it was held that, any false imputation amounts to defamation whether the concerned person is alive or dead. To defame a dead person is not a tort, but if such statement though expressly referring to the deceased reflects upon the persons who want to be plaintiff (legal representatives) and affects their reputation, then the legal representatives can maintain the suit.

Similarly in the case of These Applications Are Filed … v Thekittil Geopalankutty Nair[xi], it was held that any living person may be defamed but no action would lie by his family members or friends for defamatory statement made about a person who is dead. Had there been any explicit or implicit defamatory words against a relative or family members, only then the right to sue would survive. Defamation of a deceased person does not give rise to a civil right of action at common law in favour of surviving spouse, family or relatives, who are not themselves defamed. The maxim ‘actio personalis moritur cum persona’ embodies within it the English principle that a personal action dies with the Plaintiff.

In M. Veerappa v Evelyn Sequeira[xii], a client filed suit for damages and compensation against the advocate for negligence in performance of professional duties. During the pendency of the suit, Plaintiff died and his legal representatives filed petition under Order 22 Rule 3(1) CPC seeking their substitution in the suit for prosecuting the suit further. The Defendant opposed the Application and contended that the suit was one for damages for personal injuries alleged to have been sustained by the Plaintiff and the suit abated on his death as per the maxim “actio personalis cum moritur persona”. The District Munsif upheld the objection and dismissed the suit as having abated, but the High Court held otherwise. The Supreme Court held that if the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. The Supreme Court further held that the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon.

In Raju v Chacko[xiii] it was held that:

 “A claim for compensation for defamation under the civil law may not be maintainable in respect of defamation of a deceased person on the principle that a personal right of action dies with the person (Actio personalis moritor cum persona). But still the law makers felt that defamation of a deceased person can legitimately give rise to a criminal prosecution for the offence of defamation against a deceased person.”

So the court further added that:

“Any person may get triggered to commit offences and thus cause breach of the peace if a deceased member of his family or other near relative of his were defamed. Accepting this reality in life, Explanation-I has been added to Section 499 IPC to ensure that defamation of a deceased person is also culpable. The offending publication should not only be defamatory to the deceased. It must also be intended to be hurtful to the feelings of his family or other near relative, it is stipulated.

Conclusion- When the Right to Sue Survives even after the death of the Plaintiff

On the basis of above deliberation it is very much clear that the maxim of actio personalis cum moritur persona has been held inapplicable in the following cases and the right to continue action survives in favour of LR’s:

  • Where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong-doer[xiv];
  • As well as in those cases where a suit for damages for defamation, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff’s estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend;
  • Legal Representatives can get themselves impleaded as Party to the suit under Order I Rule 10 of CPC[xv] if the defamatory statement though expressly referring to the deceased reflects upon the persons who want to be plaintiff (legal representatives) and affects their reputation. In such cases Right to Sue will survive in favour of Deceased’s LR’s.
  • When the right to claim is based upon contractual breach. Meaning, base of the action was a contract.
  • The above maxim has no application on Criminal Case filed under Section 499 of Indian Penal Code.

[i] Mt. Bole v. Mt. Koklam and Ors, AIR 1930 PC 270; Gannon Dunkerley and Co. v. The Union of India, AIR 1970 SC 1433

[ii] Excerpts taken from Seminar Paper prepared by Mr. Vishal Vyas, Civil Judge cum JMFC, Rajasthan Judicial Services.

[iii] Puran Singh vs State of Punjab (1996) 2 SCC 205

[iv]  CS (OS) No.1212 of 2005 & IA No.6787 of 2005, Del HC

[v] CS (OS) No. 764/2006, I.A. No.148/2015 and I.A. No.12314/2015, Del HC

[vi] AIR 2006 Raj 178, RLW 2006 (3) Raj 2158, 2006 (2) WLC 687

[vii] RUSTOMAJI DORABJI VS. W.H.NURSE AND ANOTHER (AIR 1921 MADRAS 1)

[viii] 1986 AIR 411, 1985 SCR Supl. (3) 805

[ix] https://indiankanoon.org/doc/261549/

[x] (1996 (2) ALD 139)

[xi] APPLICATION NOS.4302 TO 4309 OF 2009 IN TR.C.S.NOS.931 TO 936 OF 2004, 515 AND 1038 OF 2005

[xii] (1988) 1 SCC 556

[xiii] 2005 (4) KLT 197

[xiv] Rustomji Dorabji v. W.H. Nurse (ILR 44 Mad 357) and Ratanlal v. Baboolal (AIR 1960 MP 200)

[xv] https://www.lawzonline.com/bareacts/civil-procedure-code/order1-rule10-code-of-civil-procedure.htm


ABOUT THE AUTHOR

Harshit Sharma

Harshit is a Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (Ph.D.) at NLU Jodhpur. He can be reached at harshitsharmanluj@gmail.com.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: