In a civil suit, any of the party to the suit dies and if right to sue survive then the suit

can be continued by the heirs or legal representative of the deceased party. If in any
case where right to sue does not survive the suit will come to an end. The most
essential element which affects the abetment of a suit after the death of party is the
survival of right to sue; if that is there then the suit can be continued.
The general rule is that suits and actions must be prosecuted by and against living
parties. If a person against whom a personal action may be brought dies before suit
papers naming such person as defendant have been filed with the court, then such suit
papers may be amended to substitute the decedents personal representative as party
defendant.[1]
Enactments setting up procedure for revival seeks to prevent the arbitrary cessation of
a proceeding where the cause of action survives and provide for substitution of the
personal representative or other proper party and the continuation of the matter in that
partys name. Upon the death of an indispensable party, the action abates until the
deceased partys estate, or other appropriate legal representative, has been
substituted.[2]
A deceased person cannot be a party to a legal proceeding and the effect of the death is
to suspend the action as to the decedent until his or her legal representative is
substituted as a party. A deceased person cannot be a party to legal proceedings.While
the death of a party does not abate a pending action where the cause of action
survives, nevertheless the effect of the death is to suspend the action as to the
decedent until someone is substituted for the decedent as a party to the proceedings.
Until someone is properly substituted as a party after the action is thus suspended,
further proceedings in the case are void as to the decedent.[3]
Abatement:
Considering the matter of the abatement of an action by the death of a party, as well as
the survival and revival of the action, there is a clear difference between the action and
the cause of action; a cause of action may survive although a particular action based on
it is abated by the death of a party.
Abatement, in law, means discontinuation, cessation, destruction, or elimination. The
term is used in several different contexts.
Abatement of an action is the cessation of a particular judicial proceeding because of
some fact not affecting the merits of the controversy. The commonest grounds for
abatement are the pendency of another suit or the death of a party. To abate a later
suit, the pending suit must be in the same jurisdiction, with the same parties and legal
issues. At common law, death of a party abated an action but did not necessarily
extinguish the legal right on which it depended.
Other grounds for abatement of actions are defects of the parties (such as misnomer or
incapacity); lack of jurisdiction of the court; dissolution of a corporation; premature
commencement of an action; and transfer of a party's interest in the lawsuit.

There are two types of parties involved in a lawsuit: plaintiffs and defendants. The party
who initiates a lawsuit is called the plaintiff. The party against whom an action is
brought is the defendant. The plaintiff claims relief, usually monetary, or recovery
against the defendant. Laws relating to abatement vary from state to state.
The premature ending of a suit before final adjudication is called abatement of an
action. If reasons for abating a suit are not apparent on the pleading filed by the
plaintiff, the defendant can move to abate the case. However, if the defendant fails to
claim for abetment in his/her answer, the defence will be waived. Court considers a plea
for abatement of an action before proclaiming a judgment as a judgment on the plea
may affect the final decision in the case.
Right to sue:
A personal action dies with the person, is derivation and source of Latin maxim Actio
personalis moritur cum persona Right to sue, other than closely connected with the
individuality of the deceased, always survives to or against his legal representatives.

There is a simple experiment to check as to when and how a right to sues survives regardless of
the death of a party. There are cases where the plaintiffs mostly sue with regard to some claim
which is associated with or vests in their individuality. A suit for damages falls under that nature.
If a plaintiff dies during the pendency of suit for damages, the right to sue, which can also be
termed as a right to seek relief, would not survive but if he succeeds in getting, a decree for
damages and dies during the pendency of his opponents appeal, the right would of course
survive to his legal representatives. In case of the survival of right to sue the suits do not abate on
death of a party but the impleadment or substitution of his legal heirs becomes incumbent within
the period of 90 days. This is so because the surviving right has now become vested in the legal
heirs. So long as a right is referable to the individuality of a person, it does not survive at the
death of that person. The general rule is that all causes of action and all demands whatsoever
existing in favour of or against a person at the time of his death survive to or against his legal
representatives. This principle is found enacted in the Succession Act as well, with the only
exception that rights intimately connected with the individuality of the deceased will not survive
based on the famous maxim actio personalis moritur cum personala personal right of action dies
with the person. A right to sue, other than intimately connected with the individuality of the
deceased, will always, survive to or against his legal representatives.
No abatement by the death of parties:
1. Death of plaintiff:
Where the sole plaintiff dies, the suit will not abate, if the right to sue survives. It can be
continued by the heirs and the legal representatives of the deceased plaintiff. If the
right to sue does not survive, the suit will come to an end.[4]
Where one of several plaintiffs dies and the right to sue survives to the surviving
plaintiff or plaintiffs, the court will make an entry to that effect and proceed with the suit

by the surviving plaintiff or plaintiffs.[5]

Where one of several plaintiff dies and right to sue does not survives to the survive to
the surviving plaintiff or plaintiffs or where the sole plaintiff and the right to sue
survives, the court on an application by the legal representative of the deceased
plaintiff will make him a party and proceed with the suit.[6]
Where no such application is made in the period of limitation (ninety days), the suit
shall abate so far as the deceased plaintiff is concerned. On an application by the
defendant, the court may award costs, which might have been incurred by him in
defending the suit from the estate f the deceased plaintiff.[7]
Where the plaintiff dies after hearing and before pronouncement of judgement, the suit
shall not abate.[8]
The same principal will apply in case of death of the plaintiff after passing of preliminary
decree and before final decree.[9]
2. Death of defendant:
Where the sole defendant dies, the suit shall not abate if the right to sue survives. It can
be continued against the heirs and legal representatives of the deceased defendant.[10]
Where one of several defendants dies and the right to sue survives against the
surviving defendant or defendants, or where the sole surviving defendant dies and the
right to sue survives, the court on an application by the legal representative of the
deceased defendant, will make him a party and proceed with the suit.[11]
Where no such application is made in the period of limitation (ninety days), the suit
shall abate as against the deceased defendant.[12]
The court may, if it thinks fit, exempt the plaintiff from substituting the legal
representative of a non-contesting or pro forma defendant and pronounce judgement
notwithstanding the death of such defendant.[13]
Where the plaintiff is ignorant of the death of the defendant and the reason is unable to
make the application for substitution of the legal representative of the deceased
defendant within the period of limitation, and the suit stands abated, he may make an
application for setting aside such abetment within the period of limitation , stating that
due to ignorance of the death of the defendant he could not make application within
time. The court shall consider the application, having due regard to the fact of such
circumstances.[14]
In Elliott v. Cline, 184 Ga. 393 (Ga. 1937)[15], the court observed that a cause of action
for an injunction survives the death of either party where it relates to property. Whereas,
if the acts are of a purely personal character, the right of action abates on the death of
the defendant. However, if a suit is for damages and injunction, then the right to

damages

ex

contractu

will

survive

the

death

of

the

defendant.

Where the defendant dies after hearing and before pronouncement of judgement, the
suit shall not abate.[16] The suit also does not abate on account of the death of an
unnecessary party.[17]
Conclusion:Generally under the common law, a lawsuit was thought to automatically abate on the
death of a party. However, whether the cause of action abated depended on whether or
not the lawsuit was considered personal to the parties. For example, contract and
property cases were thought to involve issues separate from the parties themselves and
did not necessarily abate on the death of a party. On the other hand, personal injury
cases including injuries to the person as well as cases of libel, slander, and malicious
prosecution were considered personal and did abate at death of the party.
Many states today have statutes that permit the revival of an action that was pending
when a party died. In the usual course, an executor or administrator is substituted for
the deceased party and the lawsuit continues. A lawsuit may not be revived unless the
underlying cause of action continues to have a legal existence after the partys death.
Revival statutes vary from state to state, but today most lawsuits do not abate due to
the
death
of
the
party.
If two or more persons bring an action to the court and if one of them dies while the
action is pending, then the action will not abate if the cause of action survives. The
action will continue in the name of a surviving party, or by the representatives of
decedent.[18]
After the death of a party, if the right sought to be enforced survives only for or against
the surviving plaintiffs or defendants, the action will not abate but will continue for and
against the surviving parties. However, the death must be noted on the record.[19]
In common law, if one of the defendants dies, it will not abate an action against the
other defendants entirely either in contract or in tort actions.[20]
If the rights of the deceased party, or his/her successors remain in the cause of action,
then the matter is either abated or suspended until the action is properly revived and a
successor named. A judgment is not entered against the decedents successors in
interest or against his/her former rights until these steps are taken.[21]
If one of the two co-parties is a necessary party, and the judgment will not have any
meaning without him/her as a party, then the action abates entirely upon the co-partys
death and cannot be revived. However, if a valid judgment can be given against the
remaining defendants, the death of a party for whom no substitution can be made
abates the action only as to the decedent, without possibility of reviver.
References:

Ferk v. County of Lake, 205 Cal. App. 3d 268 (Cal. App. 1st Dist. 1988)
Harbin v. ORear, 219 Ala. 173 (Ala. 1929)
Wanamaker v. Springstead, 274 A.D. 1008 (N.Y. App. Div. 1948)
Radha rani v. hanuman Prasad, AIR 1966 SC 216
Elliott v. Cline, 184 Ga. 393 (Ga. 1937)
Jitendra ballav v. dhirendranath, AIR 2004 Ori 148
Campbell v. Napoli, 786 So. 2d 1232 (Fla. Dist. Ct. App. 2d Dist. 2001)
Clark v. Masters, 297 Ga. App. 794 (Ga. Ct. App. 2009)
-------------------------------------------------------------------------------[1] Estate of James v. Peyton, 277 Va. 443, 451 (Va. 2009)
[2] Campbell v. Napoli, 786 So. 2d 1232 (Fla. Dist. Ct. App. 2d Dist. 2001)
[3] Clark v. Masters, 297 Ga. App. 794 (Ga. Ct. App. 2009)
[4] R.1
[5] R.2
[6] R3(1)
[7] R 3(2)
[8] R 6
[9] Jitendra ballav v. dhirendranath, AIR 2004 Ori 148
[10] R 1
[11] R 2
[12] R 4(1)
[13] R 4 (4)
[14] R 4(5)
[15] 184 Ga. 393 (Ga. 1937)
[16] R 6.
[17] Radha rani v. hanuman Prasad, AIR 1966 SC 216
[18] Ferk v. County of Lake, 205 Cal. App. 3d 268 (Cal. App. 1st Dist. 1988)
[19] USCS Fed Rules Civ Proc R 25(a) (2)
[20] Harbin v. ORear, 219 Ala. 173 (Ala. 1929)
[21] Wanamaker v. Springstead, 274 A.D. 1008 (N.Y. App. Div. 1948)