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Q. Right to sue Legal Heir

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Anonymous

posted 5 days ago

In this case financial loss was caused to an organisation due to professional misconduct of an employee. Case was filed against him for recovery of losses (apart from the dismissal and adjustment of retiral dues done post internal enquiry as permitted under staff rules) over and above the action taken post internal enquiry. There is no trail of money to suggest that the employee got any financial benefit.

It is settled law that tort survives only (i) in case of a deceased plaintiff, if the estate has thereby suffered damage; and
(ii) in case of a deceased defendant, if there has thereby been benefit or accretion to the estate.

In this case does right to sue LR suvives?

Showing 3 of 3 Responses

A. Dear Client,

Please see the ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY OR PARTIES of
Code of Civil Procedure 1908 - Schedule I
Occasionally during a lawsuit, especially a personal injury lawsuit where a person's health is at issue, one of the parties to the lawsuit can pass away. This unfortunate and unusual situation raises the issue of what happens to a lawsuit when a party dies, as well as whether the lawsuit is automatically terminated. Because lawsuits customarily pass to the deceased person's estate, the lawsuit generally isn't automatically terminated.
If the Plaintiff Dies
In a civil lawsuit, if the plaintiff dies, the beneficiaries and heirs to the plaintiff's estate inherit the lawsuit. The person named in the deceased person's will as his executor, or the person named by the court as administrator of the estate if there is no will, can continue the lawsuit on behalf of the deceased person. If the case settles, the executor or administrator distributes the proceeds to the beneficiaries and heirs. To continue the lawsuit, most jurisdictions require that, within 90 days of death, a notice of death and a copy of the death certificate be filed with the court requesting that a successor to the lawsuit be appointed. A failure to do so could result in an automatic dismissal of the lawsuit. The executor or administrator appointed to handle the decedent's estate should consult with the beneficiaries and heirs of the estate before settling the lawsuit to ensure that there is no dispute regarding the resolution of the case.
If the Defendant Dies
Similarly, when a defendant dies during a civil lawsuit, the estate is substituted for the deceased person. Most states allow the executor or administrator of the deceased's estate to handle the lawsuit without any input from the heirs or beneficiaries of the estate. As with the death of a plaintiff, in the case of a deceased defendant, it is generally prudent that the executor or administrator consult with the beneficiaries and heirs before agreeing to a settlement in the event that they have any opposition. If the beneficiaries and heirs do agree, however, states generally provide that they cannot later change their minds and reopen the estate to dispute the settlement. Unlike plaintiffs, defendants do not have to file a notice of death since they are not the ones that stand to lose if the lawsuit is automatically dismissed. Regardless, in the case of both a plaintiff and a defendant, the continuation of a lawsuit can be difficult if the testimony of the deceased person is crucial to the case.
Shanti Ranjan Behera,
Advocate

Shanti Ranjan Behera

Experience: 22 Year(s)

Responded 4 days ago

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A. Legal heirs only liable when such amount being enjoyed by them

Kishan Dutt Kalaskar Retired Judge

Experience: 33 Year(s)

Responded 4 days ago

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A. NO, the right to sue a legal heir does not survive. Also it has been proved that the employee did not generate any profits or accretion out of the estate [which is the well settled law]. Not to forget that the misconduct was done by the employee and not by the Legal Heirs of the employee. The death of the employee also, does not invoke any sort of vicarious liability upon the heirs as there is no master servant relationship here.

The same can be explained by this simple example: Like a bank cannot sue the parents of a person say [X] who took an educational loan @x%P.A. deductible from his salary [Until Paid Off]. If in between the tenure the student dies and is unable to repay the loan, the bank in no way can make the parents liable to pay such loan amount. This amount is non recoverable as a dead person is now non existent and cannot be made liable for any profits or losses. The same case is applicable in your case.

Hope this helped

Shreyash Mohta.

Shreyash Mohta

Experience: 1 Year(s)

Responded 4 days ago

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