Holding

The appeal is dismissed; the suit does not abate merely on the plaintiff's death and must be decided on its substantive nature by the trial court.

Summary

The plaintiff, a tenant, engaged an advocate to file a Special Leave Petition in the Supreme Court against an eviction order. The petition was dismissed as withdrawn, and the plaintiff sued the advocate for negligence and misconduct, claiming damages. The plaintiff died during the suit, and his legal representatives sought to be impleaded under Order XXII Rule 3(1) of the CPC. The trial court held the suit abated, but the High Court allowed the representatives to continue. On special leave, the Supreme Court examined whether a damages suit against a counsel abates on the plaintiff's death, emphasizing that abatement depends on whether the cause of action is based on personal injury (tort) or on contract, and on the statutory provisions of Section 306 of the Indian Succession Act and Order XXII of the CPC. The Court found that the nature of the suit had not been determined and therefore could not be said to have abated; it dismissed the appeal and remitted the matter to the trial court to decide the substantive nature of the claim.

Issues considered

Does a suit for damages against a legal practitioner abate on the death of the plaintiff under the maxim actio personalis cum moritur persona?
Can the legal representatives of a deceased plaintiff continue the suit under Order XXII Rule 3(1) of the CPC and Section 306 of the Indian Succession Act?
Is the suit in question founded on tort (personal injury) or on contract, and how does that affect abatement?
Does the Legal Practitioners (Fees) Act, 1926, provide any immunity to a counsel from liability for professional negligence?

Legislation cited

Code of Civil Procedures. Order XXII Rule 1, s. Order XXII Rule 3(1)
Indian Succession Act, 1925s. 306
Legal Practitioners Act, 1879
Legal Practitioners (Fees) Act, 1926s. 2, s. 3, s. 4, s. 5
Probate and Administration Act, 1881s. 89

Subjects

actio personalis cum moritur personasuit abatementlegal representative substitutionIndian Succession Act 306CPC Order XXIILegal Practitioners (Fees) Act 1926professional negligencetort vs contractspecial leave petition

Judgment

A M. VEERAPPA
v.
EVELYN SEQUEIRA & ORS.

JANUARY 13, 1988

B [A.P. SEN AND S. NATARAJAN, JJ.]

Whether a suit for damages instituted against counsel abates on the
dedlh of the plaintiff-Determination of the question.

A tenant, Mr. Sequeira, wanted to prefer an appeal to the
c Supreme Court against an order of the High Court, confirming an
order of eviction passed against him in respect of his business premises,
and engaged the appellant, an Advocate of the Supreme Court, to file
the appeal. The Advocate/Appellant filed a petition for Special Leave in
the Supreme Court. The petition came up for hearing on 22.11.1971
and was dismissed as withdrawn. The tenant thereupon filed a suit in
D the Court of the District Munsiff against the appellant for damages and
compensation on the allegations that the appellant had been negligent in
rendering professional service and had misconducted himself by filing
the appeal after considerable delay, giving misleading information
about the filing of the appeal, and withdrawing the appeal instead of
canvassing for its admission, and that as a result of the withdrawal of
E the appeal, he was evicted from his business premises in consequence
whereof he had incurred loss of income and business, besides suffering
mental agony, worry and loss of reputation. The plaintiff claimed com-
pensation under various heads. The appellant filed a written statement,
refuting the charges levelled against him in the plaint and disputing the
plaintiff's right to seek damages.
F
During the pendency of the suit, the plaintiff died and his legal .~
representatives, the respondents in this appeal, filed a petition under
Order XXII Rule 3(1) of the Code of Civil Procedure for their substitu-
tion in the suit for prosecuting the suit further. The appellant opposed
the petition on the grounds inter alia that the suit abated on the death of
G the plaintiff as per ahe maxim Actio Persona/is cum moritur persona.
The Trial Court upheld the objection and dismissed the suit as having
abated, but the High Court held otherwise and declared the legal rep-
resentatives to be entitled to be impleaded and continue the suit. This
appeal was filed by special leave against the order of the High Court.

H Dismissing the appeal, the Court,
606
M. VEERAPPA v. EVELYN SEQUEIRA 607

i HELD: The High Court which, in deciding the Revision before it, A
followed Krishan Behari Sen v. Corporation of Calcutta, I.L.R. 31
Calcutta 993, had not followed the correct ratio. Section 306 of the
Indian Succession Act, 1925, which corresponded to section 89 of the
Probate and Administration Act, 1881, set out the rights of the
Executors and Administrators to continue actions of or against a
deceased person. Section 306 was almost a re-production of section 89. B
In so far as the rights of a legal representative to proceed with a suit
filed by a deceased plaintiff were concerned, Order XXII, Rules 1 and

- 3(1) governed the matter. 161 IC, FI

The maxim 'action persona/is cum moritur persona' had been
applied not only to those cases where a plaintiff died during the
pendency of a suit filed by him for damages for personal injuries
c
sustained by him bot also to cases where a plaintiff died during
the pendency of an appeal to the Appellate Court, be it the first
Appellate Court or the second Appellate Court against the dismissal
of the suit by the Trial Court and/or the first Appellate. Court, as
the case might be. This was on the footing that by reason of the D
dismissal of the suit by the Trial Court or the first Appellate Court,
as the case might be, the plaintiff stood relegated to his original
position before the Trial Court. 16 i4G-H; 6ISA]

Though section 306 spoke only of executors and administrators.
and Order XXII, Rule 3, Civil Procedure Code, set out the rights of the E
,... legal representatives to continue the proceedings instituted earlier hy a
" deceased plaintiff if the right to sue survived, the Courts had taken the
view that the legal representatives stood on par with the executors and
~. administrators regarding their right to seek impleadment to continue
\ , the suit. There was unanimity of view among many High Courts regard-
._t ing the interp.retation to be given to the words "other personal injuries F
P' not causing the death of the party", occurring in section 306 of the
Indian Succession Act. Preponderant view taken by several High Courts
found acceptance with this Court in Melepurath Sankumari Ezhu
Thassan v. Thekittl Geopalankutty Nair, A.I.R. 1986 S.C. 411. It was
.i on account of these factors, the Court expressed its disapproval of the
view taken by the High Court in this case. 16 lSE-F, H; 616A-B I G

What now fell for consideration in this case was whether the suit
filed by the plaintiff was founded on torts or contract. In view of the fact
that this aspect of the matter had not been considered by the Trial
Court, the Court did not think it proper to express any opinion one way
or the other as to whether the suit cause of action was founded on torts H
608 SUPREME COURT REPORTS I1988] 2 S.C.R.

A or contract. Having regard to the nature of the claim, the Court was not
able to comprehend how without any enquiry and recording of evidence
the Trial Court and the High Court had proceeded on the basis that the
suit claim was based only on tortious liability though the two courts had
reached different conclusions about abatment of the suit. Since no dis-
cussion had been made aud no finding, rendered on this question and
B since the Court could not render any finding on the basis of the mate-
rials on record whether the suit was based on the personal injuries
sustained by the plaintiff or upon the loss suffered by the estate, the
Court thought the proper course would be to allow the judgment under
appeal to stand even though the Court did not approve the reasoning of
the High Court. The matter was left upon for the trial Court to decide
-
c whether the suit was founded entirely on torts or on contract or partly
on torts and partly on contract and deal with the matter according to
law. If the entire suit claim was founded on torts, the suit would
undoubtedly abate. If the action was founded partly on torts and partly
on contract, then, such part of the claim as related to torts would stand
abated and the other part would survive. If the suit claim was founded
D entirely on contract, then, the suit had to proceed to trial in its entirety
and be adjudicated upon. [6i6C; 6J7G-H; 6188-D]

A legal practitioner could not claim exemption from liability to be
sued in respect of any loss or injury suffered by the client due to any
negligence in the conduct of his professional duties merely by reason of
E his being a legal practitioner. Whether section 2(b) of the Legal
Practitioners (Fees) Act, 1926, would afford protection to a legal
practitioner from being sued for negligence by a client if he only
pleaded or agreed to plead, was a matter for judicial determination in
an appropriate case. For the present, the Court did not express any 7
opinion on the matter except pointing out that there was a specific ,,
F provision in the Le~al Practitioners (Fees) Act, 1926, saying that the" t
legal practitioners would also be liable to be sued by their clients if they 1...
had been negligent in the performance of their professional duties. In ....
conclusion, since the Court found that the question whether the suit had
a bated or not could be answered only after the nature of the suit was
determined on the basis of the materials placed and the evidence
G adduced by the parties, the appeal had to be dismissed. The suit would
stand restored to the file of the trial Court for disposal in accordance
with law in the light of the guidelines given by the Court in this
Judgment. [621G-H; 622A-C]

Krishna Behari Sen v. Corporation of Calcutta, ILR. 31 Calcutta,
H 993; Rustomji Dorabji v. W.H. Nurse, ILR 44 Madras 357; Motilal
M. VEERAPPA v. EVELYN SEQUEIRA [NATARAJAN, J.] 609

Satyanarayan & Anr. v. Harnarain Premsukh & Anr, A.I.R. 1923 A
Born. 408; Palaniappa Chettiar v. Rajah of Ramnad, I.L.R. 49 Madras
208; Irulappa v. Madhava, A.I.R. 1951 Madras 733; Arnuchalam v.
Subramanian, A.I.R. 1958 Madras 142; Gopal v. Ram Chandra, ILR
XXVI Bombay 597; Maniramlala v. Mtz. Chalti Bai & Anr., I.L.R.
1938 Nagpur 280; Baboo v. Subanshi, I.L.R. 1942 Nagpur 650;
Baboolal v. Ram/al, A.I.R. 1952 Nagpur 408; Punjab Singh v. B
Ramautar Singh, A.I.R. 1920 Patna 841; Joginder Kaur v. JaJidish
Singh, A.I.R. 1964 Patna 548; Ratanlal v. Baboo la/, A.I.R. 1960
Madhya Pradesh 200; G. Jaya Prakash v. State, A.I.R. 1977 Andhra
Pradesh 20; D.K. Cassim & Sons v. Sara Bibi, I.L.R. XIII Rangoon
385; Melepurath Sankunni Ezhuthassan v. Thekittil Geopalakutty Nair,
A.I.R. 1986 S.C. 411; Hedley Byrne & Co. Ltd. v. Heller & Partners,
(1963] 2 All. E.R. 575; Ronde/ v. W, (1966) 3 All. E.R. 657; Rondel v. C
Worsley, [1967] 3 All. E.R. 993; Heywood v. Wellers, 11976] l All. E.R.
300; Midland Bank Trust Co. Ltd. & Anr v. Hett, Stubles & Kemp,
(1978) 3 All. E.R. 571 and Re Bell's Indenture Bell & Anr. v. Hickley &
Ors., (1980] 3 All. E.R. 425, referred to.
D
CIVIL APPELLATE mRISDICCTON: Civil Appeal No. 131
of 1988.

From the Judgment and order dated 13.3.1986 of the High Court
"' of Kamataka in C.R. P. No. 1821 of 1984.
E
A.S. Nambiar, R.C. Kaushik and A.K. Sharma for the Appel·
lant.

S.S. Khanduja and Y.P. Dhingra for the Respondents.
I

f'
The Judgment of the Court was delivered by F

NATARAJAN, J. Leave granted.

The limited question falling for our determination in this appeal
by special leave is whether a suit for damages already instituted against
a counsel has abated or not consequent on the death of the plaintiff. G

We may now scan the facts. Pursuant to the High Court of
Karnataka confirming an order of eviction passed against him in
respect of his business premises, a tenant by name Mr. Sequeira
wanted to prefer an appeal to the Supreme Court. For that purpose he
met the appellant, who is an advocate practising in the Supreme Court, , H
610 SUPREME COURT REPORTS [1988] 2 S.C.R.

A on 14.6. 1971 at Mangalore during the latter's visit to that place and
engaged him to file the appeal. The special leave petition came up for
hearing on 22. l I. 197 l and was "dismissed as withdrawn''. Mr.
Sequeira then filed a suit O.S. No. 255 of 1972 in the Court of the
District Munsif, Mangalore against the appellant for damages and
compensation. He alleged in the plaint that the appellant had been
B negligent in rendering professional services and had misconducted
himself by filing the appeal after considerable delay and giving mis-
leading information about the filing of the appeal and furthermore in 71
withdrawing the appeal instead of canvassing for its admission. He
further alleged that as a consequence of the appeal being dismissed, he
came to be evicted from his business premises and thereby he had
C incurred loss of income as he had been unable to secure an alternate
place for running his business besides suffering mental agony, worry
and loss of reputation. The plaintiff, therefore, claimed that the appel-
lant was liable to compensate him in a sum of Rs.20,000 towards the
loss sustained by him but he was however content to restrict the
amount to Rs.4,500. In addition he claimed a sum of Rs.! ,500 under
D three heads of Rs.500 each viz., ( 1) refund of Rs.500 paid towards
court fee and miscellaneous expenses, (2) reimbursement of Rs.500
expended for engaging another advocate to obtain a certified copy of
the order of the Supreme Court in the special leave petition and (3)
compensation towards wrongful retention of the case file by the appel-
lant and reimbursement of expenses incurred for telephone and postal
E charges. Thus in all the suit was laid against the appellant for a sum of
Rs.6,000 by way of damages and compensation besides costs etc.

The appellant entered appearance in the suit and filed a written
-
statement refuting the charges of negligence and mis-conduct levelled
against him by the plaintiff and also disputing the plaintiff's right to
F seek damages or reimbursement of amounts from him under any of the
,-i
I

heads set out in the plaint. ,

During the pendency of the suit the plaintiff died and his legal
representatives, who are the respondents herein, filed a petition under
Order XXII Rule 3( I) of the Code of Civil Procedure seeking their
G substitution in the suit for prosecuting the suit further. The appellant
opposed the application and contended that as the suit was one for
damages for personal injuries alleged to have been sustained by the
plaintiff, the suit abated on his death as per the maxim Actio
Persona/is cum moritur persona. The District Munsif upheld the
objection and dismissed the suit as having abated but the High Court
H held otherwise and declared the legal representatives to be entitled to
M. VEERAPPA v. EVELYN SEQUEIRA INATARAJAN, J.J 611
-t get impleaded and continue the suit. The learned single judge who A
allowed the Revision has taken the view that Krishna Behari Sen v.
~
11 Corporation of Calcutta, ILR 31 Calcutta, 993, sets out the correct
ratio and hence he was following it in preference to the ratio laid in
Rustomji Dorabji v. W.H. Nurse, ILR 44 Madras, 357 and Motilal
Satyanarayan and Anr. v. Harnarain Premsukh & Anr., AIR !923
Bombay 408. The said order of the learned single judge is under B
'r challenge in this appeal.

"
·._ "'
Even at the threshold of the judgment we may say that the ratio
followed by the High Court is not a correct one. Section 306 of the
'f· Indian Succession Act, 1925 which corresponds to Section 89 of the
Probate and Administration Act, 1881, sets out the rights of Executors
c
and Administrators to continue actions of or against a deceased
~ person. Section 306 which is almost a re-production of Section 89 in
the earlier Act reads as follows:

"306. Demands and rights of action of or against deceased
survive to and against executor or administrator. D

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 E

-" Penal Code, 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 if granted it would be nugatory."
f- In so far as the rights of a legal representative to proceed with a suit F
• filed by a deceased plaintiff is concerned, Order XXII Rules 1and3(1)
govern the matter. They read as under:

"1. The death of a plaintiff or defendant shall not cause
;.. the suit to abate if the right to sue survives.
G
'

• 3.(1) Where one of two or more plaintiffs dies and the
right to sue does not survive to the surviving plaintiff or
plaintiffs alone, or sole plaintiff or sole surviving plaintiff
dies and the right to sue survives, the Court on an applica-
tion made in that behalf, shall cause the legal representa-
tive of the deceased plaintiff to be made a party and snail H
proceed with the suit."
612 SUPREME COURT REPORTS [1988) 2 S.C.R.

A These provisions of law have come up for consideration in a number of
cases before several High Courts. The controversy in all the cases
either under Section 89 of the Probate and Administration Act 1881 or
under Section 306 of the Indian Succession Act 1925 centred round the
meaning to be given to the words "other personal injuries not causing
the death of the party". Barring the Calcutta High Court and that too
B in one reported case only and the Rangoon High Courl in one deci-
sion, other High Courts have uniformly taken the view that the words
"personal injuries" do not mean injuries to the body alone but all
injuries to a person other than those which cause death and that the
relevant words must be read ejusdem generis with the words "defama-
tion and assault" and not with the word "assault" alone. It would
C suffice for our purpose if we set out the reasons given in the Full Bench
decision of the Madras High Court in Rustomji Dorabji v. W.H. Nurse,
(supra) and merely give the citations of the other decisions where the
same view has been taken. In Rustomji Dorabji v. W.H. Nurse, Coutts
Trotter, J. speaking for himself and Ayling, J. set out the law as
follows.
D
"We are therefore driven to the conclusion that the Act •
must be supposed to have envisaged a logically coherent
class of causes of action, and that result can only be
achieved by construing "personal injuries" as meaning not
"injuries to the body" merely, but injuries to the person in
E Blackstone's sense, other than those which either cause
death or tangible affect the estate of the deceased injured
person or cause an accretion to the estate of the deceased
wrong doer. In effect, we think that the words which we
-
have to construe are ejusdem generis not merely with the last
preceding word "assault", but with the two preceding ,
F words "defamation" and "assault". (Emphasis supplied.)

Kumaraswamy Sastri, J., the third judge in the Full Bench, in his
concurring judgment gave his reasons as under:

"If the words were simply "all personal injuries not causing
G the death of the party" and omitted defamation or assault,
it may be argue<! that personal meant only physical and that
causes of action for defamation and other similar injuries
survived. The legislature took two types of personal
injuries, one physical and the other not, and used them by
":
way of illustration of what it meant to exclude. In this view,
H the words "other personal injuries not causing the death of
M. VEERAPPA v. EVELYN SEQUEIRA INATARAJAN, J.J 613

the party" must be read with "defamation" and "assault'.. A

There has been a conflict of authority on the question
referred. In Punjab Singh v. Ramautar Singh, (\)it was
held by the Patna High Court that the words "other
personal injuries not causing the death of the party" in
Section 89 of the Act are ejusdem generis not only with B
assault but also with defamation and include malicious pro-
secution. The same view has been held by the Madras High
Court in Gandhiji Mareppa v. Firm of Marwadi Vannajee,
(2) and Marwadi Mothiram v. Samnaji, (3) A contrary view
was taken in Krishna Behari Sen v. The Corporation of
Calcutta, (4) where the learned Judges differed from
Justice Henderson, the trial Judge, and held that to use the
c
words other personal injuries not resulting in death in con-
nexion with an action for defamation or malicious prosecu-
tion would be straining the language used by the legislature
and placing on it an unnatural and forced construction. In
Punjab Singh v. Ramautar Singh, (1) Das, J., who was a D
member of the Calcutta Bar for several years observes that
in his experience the case has never been followed subse-
quently in the Calcutta High Court.

I would follow Punjab Singh v. Ramautar Singh, (I) and
Marwadi Mothiram v. Samnaji, (2) and hold that a suit for E
damages for malicious prosecution abates."

Not only has this view been consistently followed by the Madras
High Court in subsequent decisions but the same view has been taken
·by several other High Courts as may be seen from the following
citations: F

Madras High Court, Palaniappa Chettiar v. Rajah of Ramnad,
ILR 49 Madras 208; Irulappa v. Madhava, AIR 1951 Madras
733; Arnuchalam v. Subramanian, AIR 1958 Madras 142;
Bombay High Court, Gopal v. Ram Chandra, ILR XXVI
Bombay 597; Motila/ v. Harnarayan, (supra) Nagpur High G
Court, Maniramlala v. Mt. Chalti Bai & Anr., ILR 1938 Nagpur
280; Baboo v. Subanshi, ILR 1942 Nagpur 650; Baboolal v.
Ram/al, AIR 1952 Nagpur 408; Patna High Court, Punjab Singh
v. Ramautar Singh, AIR 1920 Patna 841; Jogindra Kaur v.
Jagdish Singh, AIR 1964 Patna 548; Madhya Pradesh High
Court, Ratanlal v. Baboolal, AIR 1960 Madhya Pradesh 200; H
614 SUPREME COURT REPORTS I 1988] 2 S.C.R.

Andhra Pradesh High Court, G. Jayaprakash v. State, AIR 1977
A
Andhra Pradesh 20.

As against the preponderant view taken by several High Courts,
a Full Bench of the Calcutta High Court alone took a contrary view in
Krishna Behari Sen v. Corporation of Calcutta, (supra). Maclean, C.J.
B speaking for the Bench held that the words "personal in juries not
causing the death of the party" if accorded their natural and ordinary
meaning appear to refer to physical injuries to the person which do
not cause death. As has been pointed out by Das, J. in Punjab Singh
v. Ramautar Singh, (supra) the ratio in Krishna Behari Sen's, case
had not been followed subsequently by the Calcutta High Court itself
-
C in any other case. The view taken by the Calcutta High Court found
solitary acceptance only ip a decision of the Rangoon High Court in
D.K. Cassim & Sons. v. Sara Bibi, ILR XIII Rangoon 385. It is
therefore clear that the contrary view taken by the Calcutta High
Court is against the weight of judicial pronouncements by other High
Courts.
D
In a slightly different context the matter came to be considered
by this Court in Melepurath Sankunni Ezhuthassan v. Thekittil
Geopalankutty Nair, AIR 1986 SC 411. A plaintiff's suit for damages
for defamation was decreed by the Appellate Court but dismissed by
the High Court in Second Appeal. There was an appeal to this Court "f,
E by the plaintiff by special leave and during its pendency the plaintiff
died. This Court declined to allow the legal representatives of the •
plaintiff to come on record and prosecute the appeal on the ground ".
that by reason of the dismissal of the suit by the High Court, the +
plaintiff stood relegated to his original position and, therefore, the .
proceedings abated on his death. The decision pointed out that the·-<.
F position would have been different if the plaintiff bad a subsisting f
decree in his favour because then the cause of action would get merged
in the decree and the decree would form part of the estate of the
deceased which his legal representatives are entitled to uphold.

The maxim 'actio personalis cum moritur persona' has been ;.
G applied not only to those cases where a plaintiff dies during the
pendency of a suit filed by him for damages for personal injuries .,
sustained by him but also to cases where a plaintiff dies during the
pendency of an appeal to the Appellate Court, be it the First Appellate
Court or the Second Appellate Court against the dismissal of the suit
by the Trial Court and/or the First Appellate Court as the case may be.
H This is on the footing that by reason of the dismissal of the suit by the
M. VEERAPPA v. EVELYN SEQUEIRA [NATARAJAN, J.J 615
~ Trial Court or the First Appellate Court as the case may be, the A
plaintiff stands relegated to his original position before the Trial
i,;
Court. Vide the decisions in Punjab Singh v. Ramautar Singh, (supra),
Irulappa v. Madhva, (supra), Maniramlala v. Mt. Chalti Bai & Anr.
(supra), Baboolal v. Ram Lal, (supra) and Melepurath Sankunni
Ezhuthassan v. Thekittil Gopalankutty Nair, (supra). In Palaniappa
Chettiar v. Rajah of Ramnad (supra), and Motilal v. Harnarayan, B
~ (supra) it was held that a suit or an action which has abated cannot be
continued thereafter even for the limited purpose of recovering the
l costs suffered by the injured party. The maxim of actio persrmalis cum
"" moritur persona has been held inapplicable only in those cases where

t the in jury caused to the deceased person has tangibly affected his
estate or has caused an accretion to the estate of the wrong doer vide
y Rustomji Dorabji v. W.H. Nurse, (supra) and Ratanlal v. Baboolal,
(supra) as well as in those cases where a suit for damages for ~efama-
c
ton, assault or other personal injuries sustained by the plain iff had
resulted in a decree in favour of the plaintiff because in such a case the
cause of action becomes merged in the decree and the decretal debt
forms part of the plaintiff's estate and the appeal from the decree by D
" the defendant become a question of benefit or detriment to the estate
of the plaintiff which his legal representatives are entitled to uphold

..
~

~
and defend (vide Gopal v. Ramchandra, (supra) and Melepurath
Sankunni v, Thekittil, (supra) .

Though Section 306 speaks only of executors and administrators
and Order XXII Rule 3 Civil Procedure Code sets out the rights of
legal representatives to continue the proceedings instituted earlier by a
E

• deceased plaintiff if the right to sue survives, the courts have taken the

r
view that the legal representatives stand on par with executors and
· administrators regarding their right to seek impleadment in order to
continue the suit. We may in this connection only quote the following F
passage occurring in Melepurath Sankunni's case(supra).

"Section 306 further speaks only of executors and
administrators but on principle the same position must
necessarily prevail in the case of other legal representa-
tives, for such legal representatives cannot in law be in G
better or worse position than executors and administrators
and what applies to executors and administrators will apply
to other legal representatives also."

Thus it may be seen that there is unanimity of view among many
High Courts in the country regarding the interpretation to be given to H
616 SUPREME COURT REPORTS [1988] 2 S.C.R.

A the words "other personal injuries not causing the death of the party"
occurring in Section 306 of the Indian Succession Act and that the
contrary view taken by the Calcutta & Rangoon High Courts in the
solitary cases referred to above has not commended itself for accep-
tance to any of the other High Courts. The preponderant view taken
by several High Courts has found acceptance with this Court in its
B decision in Melepurath Sankunni Ezhuthassan's case. It is on account
of these factors we have expressed our disapproval at the outset itself
of the view taken by the High Court in this case.

What now falls for consideration is whether the suit filed by the
plaintiff was founded on torts or on contract. Mr. Kaushik, learned '
-
C counsel for the appellant, in all fairness, did not contend that the ·
words "other personal injuries" must be read narrowly-Le., ejusdem l.,._
generis only with assault and other physical injuries not resulting in the ,
death of the party. His argument however was that the plaintiff's suit is
wholly founded on torts because it related to the damages sought for
by the plaintiff for alleged loss of reputation, mental agony, worry etc.
D and hence the suit is based only on the personal injuries of the plaintiff
and it inevitably abated on his death. On the other hand, Mr.
Khanduja, counsel for the respondents, contended that the suit is not
really founded on torts but is founded on contract and there had been a
breach of the conditions of engagement by the appeal being withdrawn
contrary to instructions, not to speak of the delay in the filing of the
E appeal. By reason of the breach of the conditions of engagement, the
plaintiff had been evicted and put to loss and, therefore, the suit for
damages· really pertained to the loss suffered by the estate of the
plaintiff and the said loss could well be claimed by the legal representa-

F
tives after the death of the plaintiff. It was further urged by him that
the suit amount consisted of claims under different heads and that
while Rs.4,500 had been claimed by way of compensation for the
4"
monetary loss sustained by the plaintiff's estate, the claims relating to
Rs. 1,500 under three different heads were also amounts due to the
estate as expenditure suffered by it and hence it was not open to the
appellant to contend that the suit was only for personal injuries
sustained by the plaintiff and therefore it abated on his death.
G
In view of the fact that this aspect of the matter has not been
considered by the Trial Court or the High Court, we do not think it
proper to express any opinion one way or the other as to whether the
suit cause of action is founded on torts or on contract. Since a copy of
the plaint has not been furnished by either party we can only refer to
H the summary of the plaint contained in the order of the District
M. VEERAPPA v. EVELYN SEQUEIRA [NATARAJAN, J.J 617
·i
Munsif. The relevant portion reads as follows: A

"at a later stage, he filed the petition and withdrew it; the
Special Leave Petition was dismissed as withdrawn;
defendant did not inform the plaintiff well in time, plaintiff
got suspicion over the. attitude of the defendant, he
engaged another counsel in the Supreme Court and B
obtained certified copies of the petitioner's application and
order of the Supreme Court on the application filed by the
defendant; even after several requests, defendant has not
returned the file; defendant incurred Rs.500 to obtain
certified copies; on account of the misconduct of the de-
fendant, plaintiff has suffered untold mental worry, agony, C
and loss of reputation; plaintiff was evicted from the shop
premises situated at Hampankatta; he has not been able to
secure a similar place for continuing his business; the
defendant is liable to pay the plaintiff an amount of Rs.500
being the loss incurred by him to engage the service of
another advocate to obtain the certified copies of the petition D
and application filed by the defendant in the Supreme Court;
that apart the defendant is liable to compensate the plaintiff
to the extent of another sum of Rs.500 as the defendant has
not returned the records that were entrusted to the defendant
by the plaintiff and for the charges incurred by the plaintiff
in sending telegrams, or correspondences or for trunk phone E
calls; for want of suitable place for continuing the business
of the plaintiff, the plaintiff has suffered damage or loss of
over Rs.20,000 but the plaintiff restricts the claim to
Rs.4,500 in this behalf. The plaintiff is entitled to be com-
pensated by the defendant to the extent of Rs.6,000 as stated
above, viz. Rs.500, Rs.500, Rs.500, Rs.4,500 for loss of F
damage sustained by the plaintiff and the defendant is liable
to compensate the plaintiff in this respect as he has not done
his duty which he owed towards the plaintiff." (underlining
by us)

- Having regard to the nature of the claim we are not able to
comprehend how without any enquiry and recording of evidence the
Trial Court and the High Court have proceeded on the basis that the
suit claim is based only on tortious liability though the two Courts have
reached different conclusions about the abatement of the suit. The
G

learned counsel for the respondent placed reliance upon the summary
of the averments in the plaint set out above and argued that the H
618 SUPREME COURT REPORTS 11988] 2 S.C.R.

A plaintiff had suffered loss of over Rs.20,000 due to the closure of the
business and hence the restricted claim of Rs.4,500 is really towards
loss suffered by the estate and not a claim made on the basis of the loss
of reputation, mental agony, worry etc. suffered by the plaintiff. He
further stated that the claim of Rs. 1,500 under three heads of Rs.500
each also related to the loss suffered by the estate of the deceased and
B hence the suit has to proceed for the entire suit claim. Since no discus-
sion has been made and no finding has been rendered on this question
and since we can not render any finding on the basis of the materials on
1
record whether the suit is based on the personal in juries sustained by
the plaintiff or upon the loss suffered by the estate, we think the
proper course would be to allow the judgment under appeal to stand
C even though we do not approve the reasoning of the High Court and
-
dismiss the appeal. We leave the matter open for the Trial Court to
decide whether the suit is founded entirely on torts or on contract or
partly on torts and partly on contract and deal with the matter accord-
ing to law. If the entire suit claim is founded on torts the suit would
undoubtedly abate. If the action is founded partly on torts and partly
D on contract then such part of the claim as relates to torts would stand
abated and the other part would survive. If the suit claim is founded
entirely on contract then the suit has to proceed to trial in its entirety
and be adjudicated upon.

Before concluding the judgment, it would not be out of place for
E us to refer to some English decisions and to the relevant provisions in
the Legal Practitioners Act, 1879 and the Legal Practitioners (Fees)
Act, 1926 regarding the liability of counsel to pay damages to their
clients for breach of duty or negligence. In England a distinction was
made between barristers and other professional men and for a long '
time it was in usage that a barrister could not be sued by a client for, ·. 1
F negligence or breach of duty because a barrister's services were .&
deemed to be gratuitous and therefore he could not sue or even make a .""."'\
contract for his fees with a client or with a solicitor who represented
the client and correspondingly a barrister could not be sued by a client
for breach of duty or negligence. The position is summarised by Prof.
Winfield in all the editions of his book On Torts from 1937 onwards as
G under:

"The reason for this exemption is that in theory his services
are gratitous, and although that, by itself, is not a, sufficient
ground for preventing a legal duty from arising in other
circumstances, the rule with regard to a barrister is invet-
H erate, whatever be its jnstification."
M. VEERAPPA v. EVELYN SEQUEIRA !NATARAJAN, J.] 619
-j
The assumption, however, suffered a setback when the House of A
Lords enunciated a general principle in Hedley Byrne & Co. Ltd. v.
i,. Heller & Partners, [1963] 2 All E.R. 575. The principle has been enun-
ciated in the speech of Lord Morris of Borth-Y-Gest as under:

"If someone possessed of a special skill undertakes, quite
irrespective of contract, to apply that skill for the assistance B
y of another person who relies on such skill, a duty of care
will arise."
1.
By reason of this decision, the Court of Appeals in Rondelv. W.,
( [ 1966] 3 All E.R. 657 and the House of Lords in Randel v. Worsley,
[ 1967]3 All E.R. 993 had to rest the immunity of a barrister from being
c
sued for professional negligence in the conduct of a cause on grounds
--(
of public policy. The facts in Ronde/'s case were that he was charged
for having caused grievous bodily harm to one Manning. He was not
given legal aid but after the case had proceeded for sometime, he was
afforded the facility of a "Dock Brief" and he chose a barrister by
name Mr. Worsley to act for him. The case eventually ended in convic- D
tion and the conviction was confirmed by the Appellate Court and
Ronde! underwent the sentence. Nearly six years later he issued a writ
against Mr. Worsley claiming damages for alleged professional negli-
gence in the conduct of his duty. The writ was dismissed on the ground
'y that an action against a barrister cannot be maintained on grounds of
public policy for alleged negligence on his part in the conduct of the E

- •
~
case especially when the action would amount to seeking a review of
the correctness of the conviction awarded to Ronde! in the earlier
proceedings.

• In Heywood v. Wellers, [1976] 1 All E.R. 300 the plaintiff was
held entitled to recover damages from the defendant firm of solicitors F
for the mental distress which she had suffered as a result of the moles-
tation suffered by the plaintiff consequent on the solicitor's negligent
failure to enforce the injunction obtained against one Reginald Mar-
rion. In that case, the plaintiff instructed a firm of solicitors to apply
for an injunction to restrain one Reginald Marrion from molesting her.
(.. The solicitors obtained an interim injunction on 27th February but G
when the defendant again molested the plaintiff on 28th April in
I breach of the injunction, they failed to enforce the injunction by bring-
ing the defendant before the Court. As a result of the failure to
enforce the injunction, the plaintiff was again molested by Marrion on
25th May and on 8th November. She suffered mental distress in conse-
quence of the molestation committed on those dates. In an action H
620 SUPREME COURT REPORTS [1988] 2 S.C.R.

A brought by her against the firm of solicitors, it was held that she was
entitled to recover damages as well as the costs incurred by her from
the firm of solicitors.

In Midland Bank Trust Co. Ltd. & Anr. v. Hett, Stubbs & Kemp,
[ 1978] 3 All E.R. 571 a firm of solicitors was sued for damages for their
B failure to register a formal agreement as a consequence of which the
plaintiff could, not enforce his option under the agreement to purchase
the freehold reversion of a farm at a stated price within a period of ten
years as the estate had been conveyed to another. It was held that the
solicitors were liable to the plaintiff in tort as they had failed to exer-
cise due care and skill on which they knew the client would place
C reliance and because of the duty they owed to the client not to injure
~i
'
him by failing to do that which they had undertaken to do.
'y
Re Bell's Indenture Bell & Anr. v. Hickley & Ors., [1980] 3 All
E .R. 425 is yet another case where a solicitor was held liable to replace
the misappropriated money of his client as a constructive trustee.
D What happened in that case was that money was paid into the firm's
client account in the name of express trustees. The express trustees
misappropriated the money with the solicitors knowledge. It was held
that the solicitor was liable to replace the money as a constructive
trustee.

E In India, the matter is governed by the Legal Practitioners (Fees)
Act, 1926. In the Legal Practitioners Act, 1879 a legal practitioner has
been defined as "an advocate, vakil or attorney of any High Court, a
pleader, mukhtar or revenue agent." The preamble to the Legal
Practitioners (Fees) Act, 1926 reads as follows:
-
F "An Act to define in certain cases the rights of legal
practitioners to sue for their fees and their liability to be
sued in respect of negligence in the discharge of their pro-
fessional duties."

Section 2 to 5 are important and hence they are extracted below:
G
Section 2: For the purposes of this Act, unless there is
anything repugnant in the subject or context, r
(a) "legal practitioner" means a legal practitioner as
defined in section 3 of the Legal Practitioners Act, 1879;
H and
M. VEERAPPA v. EVELYN SEQUEIRA [NATARAJAN, J.] 621

(b) a legal practitioner shall not be deemed to "act" if he A
only pleads, orto "agree to act" if he agrees only to plead.

3. Any legal practitioner who acts or agrees to act for any
person may by private agreement settle with such person
the terms of his engagement and the fees to be paid for his
professional services. B

4. Any such legal practitioner shall be entitled to institute
and maintain legal proceedings for the recovery of any fee
due to him under the agreement, or, if no such fee has been
settled, a fee computed in accordance with the law for the
time being in force in regard to the computation of the C
costs to be awarded to a party in respect of the fee of his
legal practitioner.

5. No legal practitioner who has acted or agreed to act
shall, by reason only of being a legal practitioner, be
exempt from liability to be sued in respect of any loss or D
injury due to any negligence in the conduct of his profes-
sional duties."

A reading of these sections would go to show that any legal
practitioner who acts or agrees to act for any person may settle with
r the said person the terms of his engagement and the fee to be paid for E

-•.. his professional services; that the legal practitioner will be entitled
under law institute and maintain legal proceedings against his client for
the recovery of any fee due to him under the agreement or as per the
costs taxed by the Court where there has been no pre-settlement of the
fee; and that no legal practitioner who has acted or agreed to act shall
r
}
merely by reason of his status as a legal practitioner be exempt from F
liability to be sued in respect of any loss or injury due to any negli-
gence in the conduct of his professional duties.

Therefore, a legal practitioner cannot claim exemption from lia-
bility to be sued in respect of any loss or injury suffered by the client
due to any negligence in the conduct of his professional duties merely G
by rea~on of his being a legal practitioner. As to whether Section 2(8)
.·-y will afford protection to a legal practitioner from being sued for negli-
gence by a client if he only pleads or agrees to plead is a matter for
judicial determination in an appropriate caseif an occasion arises for
it. For the present we are not expressing any opinion on the matter
except to point out that there is a specific provision in the Legal H
622 SUPREME COURT REPORTS I1988] 2 S.C.R.

A Practitioner's (Fees) Act setting out that legal Practitioners would also
be liable for being sued by their clients if they have been negligent in
the performance of their professional duties. The nature of the con-
troversy in this appeal, as we have stated at the outset itself, does not
pertain to these questions.
B
In conclusion, since we find that the question whether the suit
has abated or not can be answered only after the nature of the suit is
determined on the basis of the materials placed and the evidence
adduced by the parties, the appeal has to be dismissed. The suit will
stand restored to the file of Trial Court for disposal in accordance with
law in the light of the guidelines given by us. Accordingly the appeal is
C dismissed.
y
In the circumstances of the case, the parties are directed to bear
their respective costs.

S.L. Appeal dismissed.

1
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