Death Of Litigant During Litigation

Death Of Litigant During Litigation

 

Introduction

Litigation is often a prolonged process, and it is not uncommon for a party to a legal proceeding to die before the final adjudication of the case. The death of a litigant during the pendency of litigation raises significant procedural and substantive legal questions, particularly concerning the survival of the cause of action and the continuation or termination of the suit. Courts are required to balance procedural fairness with the need to ensure that justice is not defeated by mere technicalities arising from the death of a party. The law generally recognizes that death does not automatically bring litigation to an end. Instead, the decisive factor is whether the right to sue survives after the death of the litigant. In cases where the cause of action is transmitted such as disputes relating to property, contracts, or monetary claims, the legal representatives of the deceased may be substituted and the proceedings may continue.

 

Conversely, where the cause of action is purely personal in nature, the suit may abate upon the death of the concerned party. Procedural laws across jurisdictions, including the Code of Civil Procedure, 1908, and comparable civil procedure rules in other legal systems, provide detailed mechanisms for substitution of legal representatives, abatement of suits, and setting aside abatement. These provisions aim to ensure continuity of justice while safeguarding the rights of both the deceased’s estate and the opposing party. Thus, the study of the death of a litigant during litigation is crucial for understanding how procedural law preserves substantive rights, prevents miscarriage of justice, and ensures that legal proceedings remain effective despite unforeseen personal contingencies.

 

Body

What happens when a litigant (party to a lawsuit) dies during ongoing litigation covering civil litigation generally, procedural responses, abatement vs continuation, and substitution of parties, with reference to both U.S. federal practice and Indian Civil Procedure which follows the Code of Civil Procedure, 1908

 

a)        Death of a Party Does Not Automatically End the Case

•           Most legal systems recognize that a civil lawsuit doesn’t end simply because a party dies. Instead, the claim itself survives if the underlying legal right or cause of action survives death.

•           A lawsuit based on rights that survive death (like property claims, contract claims, tort damages, etc.) can continue, because the estate or legal representative can step into the deceased’s shoes.

•           Rights that are purely personal (strictly tied to the deceased’s personal satisfaction and not transferable) sometimes cease upon death but many modern statutes allow survival actions or substitution to avoid this.

 

b)        U.S. Federal Civil Procedure (FRCP Rule 25)

•           When a party dies during litigation, Rule 25(a) allows the court to substitute the proper party if the claim itself has not been extinguished by death. Legal Information Institute.

•           A motion for substitution can be filed by any party or by the decedent’s legal representative. Legal Information Institute.

•           If no substitution motion is made within 90 days after death is noted on record, then the action “by or against the decedent” must be dismissed as to that party. Legal Information Institute.

•           The rule also provides that if death affects only one party, the action may continue among the remaining parties while the deceased’s part is handled through substitution.

 

c)         Indian Civil Procedure (Order XXII CPC)

•           Order XXII governs what happens when parties die, become insolvent, or have a change in interest during a case.

•           The central concept is that death alone does not cause the suit to abate if the “right to sue survives.”

•           To keep a suit alive, the legal representative or heir of the deceased party must be substituted on the record within the prescribed time, usually 90 days from the date of death.

•           If no substitution occurs within time, the suit automatically abates as to that deceased party. However, in some jurisdictions and cases, abatement can be set aside with timely application.

•           Any party (not only the plaintiff) can apply for substitution; the law does not strictly designate who must file.

•           Death of a co-plaintiff or co-defendant may not end the case if other living parties remain and the right survives.

 

d)        Abatement vs Continuation

•           Abatement means the lawsuit is suspended or terminated due to the death of a party, usually because proper substitution was not made in time or because the cause of action itself does not survive.

•           Under many procedural rules (e.g., Order XXII and FRCP), failure to substitute the deceased’s representative within the statutory period results in abatement as to that party.

•           If the cause of action is personal in nature and not surviving (e.g., certain personal torts without survival statutes), the claim itself may die with the person.

•           Most civil claims involving property, contracts, damages, or other transferable interests do survive and can continue once a legal representative is substituted.

•           Courts will proceed with litigation and eventual judgment, enforcing rights against the estate or legal heirs of the deceased.

 

e)        Special Procedural Notes

When substituted, the executor, administrator, or legal heir represents the deceased’s interests. If an estate has not yet been opened or a representative appointed, courts may stay proceedings until proper appointment. In criminal cases, if a defendant dies before conviction, the criminal prosecution is typically dismissed because there’s no longer a person to try (right to defend is personal). However, civil claims for damages against the estate can still proceed.

 

f)          Practical & Policy Considerations

•           The goal of substitution rules is to prevent justice from being defeated by mere death of a party.

•           They balance procedural efficiency with fairness to the deceased’s estate and to opposing parties, ensuring litigation can continue or conclude properly.

 

g)        Strategic Impacts

Death during litigation can affect:

•           Evidentiary strategy (loss of testimony)

•           Settlement dynamics

•           Valuation of damages

•           Probate and estate administration timeline

 

Scenario	Typical Rule (Civil)	Practical Outcome
Plaintiff dies	Claim may continue if rights survive; substitute legal rep required	Case continues through estate
Defendant dies	Substitute legal rep can be brought in	Lawsuit against deceased’s estate
No substitution	Abatement as to deceased	Claim dismissed against dead party
Right doesn’t survive	Suit ends	No continuation

 

Case laws

Indian Case Law

 

1.         Om Prakash Gupta alias Lalloowa (Now Deceased) v. Satish Chandra (Now Deceased) (Supreme Court of India, 2025)

•           This is a significant recent Supreme Court judgment on the procedure for substitution and abatement under Order XXII CPC when a party dies.

•           The Court clarified that filing an application for substitution under Order XXII Rule 4 CPC is sufficient a separate prayer to set aside abatement is not required if the substitution application inherently seeks restoration of the dead party’s legal heirs.

 

2.         Mithailal Dalsangar Singh v. Annabai Devram Kini (2003)

•           A Supreme Court decision often cited in cases on substitution of parties after death under Order XXII CPC.

•           It provides guidance on how courts interpret right to sue surviving death and the requirements for substitution.

 

3.         Mangluram Dewangan v. Surendra Singh (2011) 12 SCC 773

•           A Supreme Court preceding establishing that when the sole plaintiff dies and the right to sue survives, the legal representatives must be brought on record; otherwise, the suit may abate under Order XXII CPC.

 

4.         Rangubai Kom Shankar Jagtap v. Sunderabai Bharatar Sakharam Jedhe (AIR 1965 SC 1794) and Radhaballav Chaubey v. Mahadeve Chaubey (1972)

•           Earlier Supreme Court cases indicating how suits proceed or abate when parties die and emphasizing the requirement for substitution where the right to sue survives.

 

U.S. / Common Law Case Law (Rule 25 Federal Rules of Civil Procedure)

1.         Anderson v. Yungkau, 329 U.S. 482 (1947)

•           A key U.S. Supreme Court case interpreting Rule 25 (now Rule 25(a) FRCP) on substitution after death.

 •          It held that substitution of parties after a party’s death must be timely and that courts must enforce the procedural requirements strictly unless the Rules explicitly allow otherwise.

 

2.         Example Federal Case on Rule 25 Timeliness

In this federal appellate decision, the court dealt with Rule 25(a)(1) and how failing to substitute a deceased party within the prescribed 90-day period leads to dismissal of the action as to the deceased, emphasizing the rule’s procedural nature

 

Other Relevant Precedents

Earlier Common Law Doctrine — West v. Randall (1820)

Although not directly about Rule 25, this early U.S. case established the equity principle that all persons materially interested in the case should be made parties, a foundational doctrine for later substitution rules when a litigant dies.

 

Procedural Rules Behind These Cases

A)        Order XXII CPC (India)

Governs what happens when a party dies during a civil suit — substitution of legal representatives and abatement procedures.

B)        Federal Rule of Civil Procedure 25 (U.S.)

 

Provides for substitution of parties after death if the claim survives, with a 90-day time limit for substitution filed after a suggestion of death.

 

Conclusion

The death of a litigant during the pendency of litigation is a procedural contingency that tests the balance between technical rules of procedure and the substantive goal of justice. Modern legal systems have consistently recognized that justice should not be defeated merely because a party to a suit dies before its conclusion. Accordingly, procedural laws provide mechanisms for substitution of legal representatives and continuation of proceedings where the right to sue survives. Judicial pronouncements have clarified that abatement is not automatic upon death; rather, it arises only when statutory requirements particularly timely substitution are not complied with, or where the cause of action is purely personal and non-transferable. Courts have increasingly adopted a liberal and justice-oriented approach, emphasizing that procedural provisions such as those contained in Order XXII of the Code of Civil Procedure, 1908, are intended to advance, not obstruct, the cause of justice. At the same time, the law imposes reasonable time limits and procedural safeguards to protect the interests of the surviving parties and to ensure finality in litigation. The doctrine governing death during litigation thus reflects a careful equilibrium: it preserves the rights of the deceased through their legal representatives while maintaining procedural discipline and judicial efficiency. In conclusion, the legal framework and judicial interpretation surrounding the death of a litigant during litigation underscore a fundamental principle of civil justice that rights and liabilities do not perish with the individual, and that courts must strive to ensure continuity of legal proceedings in a manner that is fair, equitable, and consistent with the rule of law.

 

“JUSTICE DELAYED IS ALWAYAS JUSTICE DENIE

 

 

 

 

khushi Pugalia

Judiciary Regular Course JGP 3.0 Student