Actio personalis moritur cum persona

Actio personalis moritur cum persona means that a personal action dies with the person. At common law, a cause of action in tort ended on the death of either the person wronged or the wrongdoer, so neither the estate of the deceased plaintiff nor the estate of the deceased defendant could continue it. The rule was much criticised as unjust and has been largely cut down by statute in England and in India.

In India the position is governed mainly by Section 306 of the Indian Succession Act, 1925. All demands 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 death survive to and against his executors or administrators. The exceptions are causes of action for defamation, assault, or other personal injuries not causing the death of the party, and cases where, after the death, the relief sought could not be enjoyed or granting it would be nugatory. Within those exceptions the maxim still applies. Claims affecting property, and contractual claims, generally survive.

In procedure the maxim is qualified by Order XXII Rule 1 of the Code of Civil Procedure, 1908, which provides that the death of a plaintiff or defendant does not cause the suit to abate if the right to sue survives. Whether the right survives is answered by substantive law such as Section 306. Where it survives, the legal representatives are brought on record under Order XXII. Where a wrongful act causes death, the dependants have an independent statutory claim, such as under the Fatal Accidents Act, 1855 or the claims provisions of the Motor Vehicles Act, 1988, so the maxim does not defeat them.

Examiners test the meaning, the exceptions in Section 306, and the link with Order XXII Rule 1.