A personal right of action dies with the person.
According to the maxim, actions of tort or contract are destroyed by the death of either the injured or the injuring party. Some legal causes of action can no longer be brought after a person dies, in some cases, defamation. It has also been applied to actions arising out of contracts of a purely personal nature, e.g., promise to marry. In actions of tort, this was formerly a general rule, but recently its application has been so generally narrowed that it probably affects only actions for libel. However, besides the statutory exceptions mentioned, an action may be brought by the personal representatives of a deceased person for an injury done to his property in his lifetime. Compensation may, however, be recovered by the relatives of a person negligently killed and in some cases of trespass.
The general rule of the common law was, that if an injury were done either to the person or to the property of another, only the unliquidated damages only could be recovered in satisfaction. However, the action dies with the person to whom, or by whom, the wrong was done.
If Aman commits battery on Raman. However, during the incident, if either party dies, the right of action which was accrued to Raman by the reason of the battery is taken away. But if Aman commits a battery upon Raman, or do other injuries to him, any right of action which accrues to the third person will not be affected by the death of Raman, so far as the application of the maxim in question is concerned.
The Andhra High Court in Nurani Jamal And Others vs Naram Srinivasa Rao And Others, while discussing the applicability of the maxim actio personalis moritur cum persona to motor accident claims, the single judge bench held that in the present case, the claimant filed a claim petition for the injuries sustained by him in a motor accident. During the pendency of the said O.P., he met with another accident and died. The legal representatives of the deceased filed implead petition in the said O.P. and the same was dismissed by the trial Court. Against which, a C.R.P. was filed before this Court. The questions that fell for consideration before this Court were whether the claim for damages survives after the death of the injured in a motor accident? and whether the legal representatives can continue the action if there is a loss to the estate of the deceased? It was held by the court that the action for damages for personal injuries will not dies with the death of the injured and that the above maxim has no application where there is a loss to the estate of the deceased.
The Supreme Court of India in Girja Nandini And Ors vs Bijendra Narain Choudhury referred to the above maxim and held that a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for an account is not an action for damages ex delicto and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory.
The Bombay High Court in Khuzemabhai Syedna vs Mufaddal Burhanuddin Saifuddin, held that the maxim ‘actio personalis moritur cum persona’ though part of English Common Law has been subjected to criticism even in England. It has been dubbed as an unjust maxim, obscure in its origin, inaccurate in its expression and uncertain in its application. It has often caused grave injustice.
The Chief Court of Punjab and Lahore in Ishar Das v. Emperor, held that the maxim “actio personalis moritur cum persona (i.e. a personal right of action dies with the person) is applicable in the matter of prosecution for defamation since that is essentially a personal action and the institution of the proceedings depended on the temperament of the person defamed.