(1.) The plaintiff Satyanarayan Dhanajishet brought a suit against the defendants to recover damages for malicious prosecution. Before the suit came on for hearing the plaintiff died and his heirs sought to continue the action. Their application to be placed on the record as heirs of the original plaintiff was dismissed by the Subordinate Judge; and the appellants in their arguments before us rely mainly on the decision in Krishna Behari Sen V/s. The Corporation of Calcutta (1904) I.L.R. 31 Cal. 993, F.B. where it was held by a Full Bench that a suit for malicious prosecution falls within the general words of Section 89 of the Probate and Administration Act, and not within any of the exceptions.
(2.) In Rustomji Dorabji V/s. Nurse (1920) I.L.R. 44 Mad. 357, F.B. the learned Judges dissented from the decision in Krishna Behari Sen V/s. The Corporation of Calcutta holding that "the expression personal injuries not causing the death of the party- in Section 89 of the Probate and Administration Act does not mean injuries to the body merely, but all injuries which do not necessarily cause damage to the estate of the person wronged.
(3.) We prefer to agree with that decision, as otherwise we would have to read into the section the words "physical" or "to the body." It has been argued that the expression "other personal injuries" must refer to injuries ejusdem generis as the injuries referred to in the preceding sentence, namely, "assault" as defined in the Indian Penal Code, When we refer to Section 351 for the definition of the word "assault" in the Indian Penal Code, we find that the offence of assault does not involve physical injury, but merely a threat to cause physical injury. Therefore the exception includes causes of action for defamation and assault neither of which causes physical injury; and then includes "all other personal injuries" except those which cause the death of the party. We think the intention of the section was to express in a statutory form the maxim actio personalis moritur cum persona. Accordingly an action for malicious prosecution does not survive beyond the life- time of the plaintiff.