Do Tort Claims Survive a Person's Death in India?

If a person who sued someone for compensation, or who could have sued, dies before the case ends, can their legal heirs carry the claim forward? In Indian law the answer is "it depends on the kind of wrong." Claims that touch the deceased's estate almost always survive. Claims that are purely personal to the deceased usually die with them. The governing provision is Section 306 of the Indian Succession Act, 1925, and in 2026 the Supreme Court examined that section at length and laid down a six-point summary of how it works alongside Order XXII of the Code of Civil Procedure, 1908.

This guide sets out what actually survives, what does not, the procedure and limitation periods that decide most of these disputes in practice, what it costs, and the errors that cause perfectly good claims to be lost for reasons that have nothing to do with their merits.

The old rule: actio personalis moritur cum persona

Indian law inherited an old common law maxim, actio personalis moritur cum persona, meaning a personal action dies with the person. The logic was that if a wrong was so personal to an individual that only they could feel its loss, the right to sue, and the liability to be sued, ended at death. Damages for hurt feelings cannot be enjoyed by an estate, and punishing a dead wrongdoer's children serves no purpose.

That maxim was never adopted in India in its full common law severity. As the Supreme Court recorded in 2026, the maxim in India "has been statutorily modified by various statutory instruments such as Fatal Accidents' Act of 1855, Legal representatives' Suits Act of 1855, Indian Succession Act of 1925." The rule you actually apply in an Indian court is therefore the statutory rule, not the Latin one. The Latin tag only explains why the statutory exceptions look the way they do.

It is also worth knowing that Section 306 is not a modern provision. The Court traced it back at least to 1865, through Section 268 of the Indian Succession Act, 1865 and later Section 89 of the Probate and Administration Act, 1881. Its exception list is Victorian in origin, which is precisely why it is now being questioned.

What Section 306 of the Indian Succession Act actually says

The section is short, and it repays reading in full rather than in paraphrase:

"306. Demands and rights of action of or against deceased survive to and against executor or administrator. All demands whatsoever and all rights to prosecute or defend any action or special 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, 1860 (45 of 1860) 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."

The section carries two illustrations, and they are more useful than most commentary. The first: a railway collision caused by an official's neglect severely hurts a passenger, but not fatally; he dies later without having sued; the cause of action does not survive. The second: A sues for divorce and dies; the cause of action does not survive to his representative.

So the structure is a general rule plus two categories of exception:

• The general rule. All demands and all rights to prosecute or defend, existing for or against the person at the moment of death, pass to the executors or administrators.
• First exception. Defamation, assault as defined in the Penal Code, and other personal injuries not causing the death of the party.
• Second exception. Cases where, after death, the relief sought could not be enjoyed or granting it would be nugatory. That is the exception that kills a divorce petition, a claim for a personal licence, or a mandatory injunction that only the deceased could have benefited from.

Note the words "existing at the time of his decease." The right to sue is tested as it stood on the date of death, not on the date the application for substitution is heard. That single point disposes of a surprising number of arguments.

Section 306 is a general rule, two exceptions and one timing point.

Currency note. Section 306 borrows the definition of "assault" from the Indian Penal Code, 1860, where it sat in section 351. The Penal Code has since been replaced by the Bharatiya Nyaya Sanhita, 2023, which carries the same definition of assault in section 130, with punishment under section 131. In the same reform, the Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Indian Evidence Act, 1872 by the Bharatiya Sakshya Adhiniyam, 2023. Section 306 of the Succession Act is itself untouched by those changes, and the civil procedure in Order XXII is unaffected, but if you are drafting today, cite both the old and the new provision.

How the Supreme Court read Section 306 in 2026

In Kumud Lall v. Suresh Chandra Roy (Dead) Thr. Lrs., decided on 4 May 2026, the Supreme Court dealt with a medical negligence consumer complaint in which the doctor complained against had died while the matter was pending in revision. The question was whether his legal heirs could be brought on record at all, or whether the claim simply died with him.

The Court's conclusions, set out in paragraph 64 of the judgment, are the clearest modern statement of this area of law. In substance they are:

1. The maxim actio personalis moritur cum persona has been statutorily modified in India by instruments including the Fatal Accidents Act, 1855, the Legal Representatives' Suits Act, 1855 and the Indian Succession Act, 1925.
2. The legal representative of a deceased person can institute a fresh suit, or be sued afresh, under the Legal Representatives' Suits Act, 1855 or under Section 306 of the Indian Succession Act, 1925.
3. Continuation of a suit by or against the legal representative has to be in terms of Section 306, which is the substantive law.
4. The procedural prescription in Order XXII of the Code of Civil Procedure, 1908 on substitution of legal representatives must be harmoniously construed with Section 306.
5. Whether the "right to sue" continues, under Order XXII Rule 2 read with Rule 4, is to be seen as on the date of death.
6. Generally all rights and liabilities to maintain a suit pass to the legal representative under Section 306; but within the first exception, personal injury claims abate, while claims for or against the estate of the deceased survive.

That last proposition is the practical heart of it. The Court went on to hold that on the death of the doctor his legal heirs could be impleaded and brought on record, with the extent of liability to be determined on the pleadings and evidence, and it remitted the matter so that the consumer forum could decide the negligence question and then work out which claims were genuinely recoverable against the estate. It also cautioned the forum below not to confuse the two, saying the court has to look only at claims maintainable against the estate rather than adjudicating personal claims that have elapsed with the death.

The Court squarely addressed the argument that the exception list is outdated. It noted the 178th Report of the Law Commission of India, the 8th Report of the Haryana Law Commission, and the Kerala Torts (Miscellaneous Provisions) Act, 1976, which allows all causes of action to continue except defamation, seduction and adultery. But it declined to rewrite the section, observing that it was answering a question of interpretation and not expounding on whether the policy is correct, and that it was appropriate to engage policy experts and leave the question to the Law Commission to consider whether the scope of Section 306 needs a re-look.

Read that carefully before you rely on it. A judicial suggestion that Parliament or the Law Commission should widen a provision is not the same as a widening of the provision. Until Section 306 is amended, the exceptions stand as written.

Survives or does not survive: a working table

The line that runs through the whole table is the estate. Ask one question: did this wrong reduce the value of what the deceased left behind, or increase the value of what the wrongdoer holds? If yes, the claim is very likely to survive. If the only loss was to the person's body, feelings or reputation, it very likely does not.

Where the wrong caused the death: a different remedy

People routinely confuse two entirely separate things. "Survival" is the deceased's own claim continuing in the hands of the estate. A fatal accident claim is a fresh right belonging to the dependants themselves. The rules, the claimants and the heads of damages are all different.

• Fatal Accidents Act, 1855. Where a wrongful act, neglect or default causes death, this Act gives a remedy to the family for the loss suffered by them. It is not the deceased's cause of action, so Section 306 does not cut it off.
• Legal Representatives' Suits Act, 1855. Referred to by the Supreme Court in Kumud Lall, this permits a legal representative to institute a fresh suit in the situations it covers.
• Motor Vehicles Act, 1988, Section 166. Where the death arises from a motor accident, the legal representatives apply to the Motor Accidents Claims Tribunal in their own right. This is the route most Indian families actually use, and it is far more generous and far quicker than a civil suit.
• Consumer Protection Act, 2019. Section 2(5)(vi) recognises the legal heir or legal representative of a deceased consumer as a complainant, and Section 38(12) applies Order XXII of the Code of Civil Procedure where a complainant or an opposite party dies during the complaint.

The bare texts are on the India Code portal: the Indian Succession Act, 1925, the Code of Civil Procedure, 1908, the Fatal Accidents Act, 1855 and the Motor Vehicles Act, 1988. Section 130 of the Bharatiya Nyaya Sanhita, 2023 can be read on the India Code page for that Sanhita.

Order XXII CPC: the procedure that decides most cases

Substantive law tells you whether the right survives. Order XXII of the Code of Civil Procedure, 1908 tells you what you must do about it, and in real litigation the procedure is what usually goes wrong. The relevant rules are these.

• Rule 1. "The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives." The suit does not automatically end.
• Rule 2. Where there are several plaintiffs or defendants and the right to sue survives to or against the survivors alone, the court records an entry to that effect and the suit simply proceeds. No substitution is needed.
• Rule 3. Where a sole plaintiff, or one of several plaintiffs, dies and the right to sue survives, the court shall on an application bring the legal representative on record. Sub-rule (2) is the sting: if no application is made within the time limited by law, the suit abates so far as the deceased plaintiff is concerned, and the court may award the defendant his costs out of the deceased's estate.
• Rule 4. The mirror provision for a deceased defendant. Sub-rule (3) provides that if no application is made in time, the suit abates as against the deceased defendant. Sub-rule (4) lets the court exempt the plaintiff from substituting a defendant who never filed a written statement or never contested, and pronounce judgment as if the death had not occurred. Sub-rule (5) deals with the plaintiff who was genuinely ignorant of the death.
• Rule 4A. Procedure where there is no legal representative at all.
• Rule 6. There is no abatement, whether or not the cause of action survives, if the death occurs between the conclusion of the hearing and the pronouncement of judgment. Judgment may be pronounced as if the party were alive.
• Rule 9. Where a suit abates, no fresh suit shall be brought on the same cause of action. But sub-rule (2) allows an application to set aside the abatement, and the court shall set it aside if the applicant proves he was prevented by sufficient cause from continuing the suit. Sub-rule (3) applies the delay-condonation provision of the Limitation Act to such applications.
• Rule 10A. A duty that is widely ignored. Wherever a pleader appearing for a party comes to know of that party's death, he shall inform the court, and the court shall give notice of the death to the other side. For this purpose, the contract between the pleader and the deceased party is deemed to subsist.
• Rule 11. The whole Order applies to appeals, reading "plaintiff" as appellant, "defendant" as respondent and "suit" as appeal.

The limitation clock: Articles 120 and 121

The two periods that decide whether a family keeps its case are in the Schedule to the Limitation Act, 1963. Article 120 gives ninety days to apply under the Code of Civil Procedure to have the legal representative made a party, running from the date of death, not from the date you learned of it. Article 121 gives sixty days to apply to set aside an abatement, running from the date of the abatement. Section 5 of the Limitation Act allows condonation of delay on sufficient cause.

The Delhi High Court set this out plainly in Deepak Verma v. Daya Nand, decided on 1 July 2019: knowledge of the death is not relevant for the ninety-day period, the suit abates once that period expires, but the plaintiff can still apply to set aside the abatement, and ignorance of the death together with non-compliance with Order XXII Rule 10A are relevant factors when the court considers condoning the delay. That is why Rule 10A matters so much. If the deceased party's own advocate failed to inform the court, that failure is a powerful ground for condonation.

Two limitation articles and one procedural duty decide most of these disputes.

Step by step if a litigant in your family dies mid-case

1. Record the exact date of death and obtain the death certificate. The ninety-day clock under Article 120 runs from this date. Everything else is built on it.
2. Tell the advocate on record the same week. If the deceased was your side's party, your advocate has a duty under Order XXII Rule 10A to inform the court. If the deceased was the opposite party, ask the court to put the opposing counsel's Rule 10A obligation on record.
3. Decide whether the right to sue survives at all. Apply the Section 306 test as on the date of death. If the claim is purely for defamation, assault or personal injury not causing death, the pleading strategy must shift to whatever part of the claim attaches to the estate.
4. Check whether substitution is even necessary. Under Rule 2, where the right survives to or against the surviving parties alone, all that is needed is an entry on the record. Filing an unnecessary substitution application wastes months.
5. Identify the legal representatives properly. Use the succession certificate, legal heirship certificate, will or family pedigree as appropriate. Section 2(11) of the Code of Civil Procedure defines a legal representative as a person who in law represents the estate of the deceased, which is wider than "heir" and can include an intermeddler with the estate.
6. File the substitution application within ninety days. Support it with the death certificate, the list of legal representatives with addresses, and an affidavit. If the ninety days have already gone, file three applications together: to set aside the abatement, to condone the delay under Section 5, and to substitute.
7. Plead the reason for delay concretely. "The family was in mourning" is not enough. Set out when you learned of the death, from whom, and why you could not have learned earlier, and point to any failure by the other side to comply with Rule 10A.
8. Serve the legal representatives. They are entitled under Rule 4(2) to raise any defence appropriate to their character as legal representatives, including that the claim is one that does not survive, and that liability is limited to the estate that has come to their hands.
9. Amend the claim to fit the estate. Following Kumud Lall, separate the heads that are recoverable against the estate from the purely personal heads that have lapsed. Courts are increasingly asking for this breakdown, and a claim that does not offer one invites a wholesale dismissal.
10. Continue the suit. Once substituted, the legal representatives step into the proceedings at the stage they had reached. Evidence already recorded does not have to be led again.

What it costs and how long it takes

These figures are indicative and drawn from how such applications typically run in Karnataka trial courts. Court fees on applications are nominal and fixed by state rules; the real cost is professional time and the delay caused by a contested abatement. Confirm current figures locally before budgeting.

Mistakes people actually make

• Counting the ninety days from the date of knowledge. Article 120 runs from the date of death. This is the single most common and most expensive error in the whole area.
• Filing only a substitution application after abatement. Once the suit has abated you need three prayers, not one: set aside the abatement, condone the delay, and substitute. A bare substitution application filed on day 150 is liable to be dismissed on the short ground that there is nothing left to substitute into.
• Assuming a fresh suit can be filed. Order XXII Rule 9(1) bars a fresh suit on the same cause of action once a suit has abated. The set-aside route is not one option among several; it is the only route.
• Overlooking Rule 6. Where the death occurs after the hearing has concluded but before judgment, there is no abatement at all and no substitution is needed for the judgment to be delivered. Families sometimes panic and file applications that were never required.
• Leaving out a legal representative. A partial substitution can leave the estate unrepresented for part of the claim and invites an objection at the appellate stage, years later.
• Treating a survival claim as a fatal accident claim. If the wrong caused the death, the dependants' claim under the Fatal Accidents Act, 1855 or Section 166 of the Motor Vehicles Act, 1988 is a separate and usually far better remedy. Pleading it as a survival claim under Section 306 gives away the stronger case.
• Keeping purely personal heads of damage in the amended claim. After Kumud Lall, a claim that lumps pain and suffering together with quantifiable pecuniary loss to the estate invites the court to reject the whole. Separate them.
• Forgetting Order XXII Rule 10A when the other side's party dies. If opposing counsel knew of the death and did not inform the court, say so on affidavit. It materially strengthens a condonation application.
• Believing a court's suggestion has changed the law. The 2026 judgment expressly left the widening of Section 306 to policy makers. Advise clients on the section as it stands.

From our practice

The commercial reality is that abatement is frequently a defence strategy rather than an accident. Where a defendant is facing an elderly or seriously ill plaintiff, quiet delay costs nothing and may end the case altogether, and the ninety-day rule running from the date of death rather than the date of knowledge makes that strategy viable. The defence to it is administrative, not clever. In every long-running matter involving an elderly party we keep the contact details of at least two family members other than the party, note the Rule 10A obligation in the file so that it is raised the moment a death is mentioned in court, and treat any adjournment sought on vague health grounds as a trigger to verify the position rather than as a routine indulgence. It is unglamorous work, but the difference between a suit that continues and a suit that has abated is very often nothing more than who was paying attention in the ninety days after a funeral.

Frequently Asked Questions

Related guides and where to get help

If this is a live problem rather than background reading, our civil litigation practice handles these matters from Bengaluru, including for clients who cannot attend court in person. These guides go deeper on the neighbouring questions:

• Motor Accident Compensation Claim: Who Can Claim and How Much
• Fake AI Citations in Indian Courts: What the Supreme Court's 2026 Ruling Means for Lawyers
• Execution of Decree in India: How to Actually Recover Money After Winning (2026)