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1
PERSONAL CAPACITY
PERSONS WHO CAN BE SUEd
2
INTRODUCTION
All persons have capacity to sue in tort
All Persons have the capacity to sue
and be sued in tort
Subject to modification in respect
of certain categories of persons
Exceptional Rule
General Rule
© AIR Law Academy & Research Centre
3
INTRODUCTION
PERSONAL CAPACITY
Who cannot be sued
© AIR Law Academy & Research Centre
Who cannot sue
All persons have capacity to sue in tort
4
PERSONS WHO CANNOT SUE IN TORT
Husband and Wife
Alien Enemy
A Child in the Mother’s Womb
Insolvent
Convicts and Person in Custody
Corporation
Foreign State
© AIR Law Academy & Research Centre
5
Action between husband and wife
Under the Indian law, personal
capacity between husband and
wife to sue and be sued in torts
is governed by their personal
laws
Earlier at common law,
husband and wife could not
sue each other for any tort
committed against each other
© AIR Law Academy & Research Centre
However, this rule was
abolished by the Law
Reforms
(Husband and Wife)
Act, 1962
The Indian Constitution furthermore removes all anomalies present in common law
regarding the marital status and their personal capacity. Article 14 embodies a
guarantee against arbitrariness and unreasonableness, considering the case of
Ajay Hasia v. Khalid Murjib (1983)
6
ALIEN ENEMY
Alien enemies who are residing in India with the permission of
Central Government may sue in any Court. But an enemy who is
without any such permission or residing in a foreign country cannot
sue in any Court, as per Section 83 of Code of Civil Procedure
© AIR Law Academy & Research Centre
7
A CHILD IN THE MOTHER’ WOMB
CASE : Walker v. Great Northern
Railway of Ireland, (1890) 28 LR IR 69
FACTS: A women was with child, was
injured in a railway accident, and the child
when born was found to be deformed.
The infant claimed 1,030 as damages
from the railway company
HELD: Infant child cannot maintain an
action
A child cannot sue
for injuries caused
when in it’s mother’s
womb
© AIR Law Academy & Research Centre
8
CORPORATIONS
A corporation can bring suits for civil
wrongs which affect its existence e.g.
defamation
It cannot sue for torts like assault,
battery, false imprisonment etc.
because these are wrongs against a
person
Suits by Corporations
A corporation is liable for torts
committed by its agents or servants in
course of doing an act which is within
the scope of the corporation
Suits against Corporation
© AIR Law Academy & Research Centre
9
PERSONS IN CUSTODY
A person who is sentenced to death
or penal servitude cannot sue for
wrongs to his property
In England
A person can sue for both wrong
done to his person and property.
However he cannot sue when his
property has been lawfully fortified
under sec. 126, 127 and 196 of IPC
In India
© AIR Law Academy & Research Centre
10
INSOLVENT
Cannot sue for wrongs in respect of his property
because all his property vests in the official assignee
When a tort causes injury to both his person and
property the action will spilt
© AIR Law Academy & Research Centre
Property Person
Will pass to the trustee Will remain with the bankrupt
11
Must be Real and not Illusory
As per Section 84, CPC a foreign
state may sue in any competent Court:
provided that the object of the suit is to
enforce a private right vested in the
ruler or such state or in any officer of
such State in his public capacity
Cannot sue in any Court of India
unless such State has been
recognised by the Government of
India
© AIR Law Academy & Research Centre
12
Reference Book
D.D. Basu, The Law Of Torts ,Kamal , Calcutta
Ratanlal And Dhirajlal, The Law of Tort, Universal ,Delhi
J.N Boriwala, Commentary on Consumer Protection
Act,1986,Universal ,Delhi
Salmond and Heuston –On the Law of Torts
(2000)Universal, Delhi
D. M. Gandhi , Law Of Tort, Eastern Lucknow
P.K Majumdar, The Law of Consumer Protection In India
(1998),Orient Publishing Co., New Delhi
R. M Vats, Consumer and The law(1994),Universal ,Delhi
© AIR Law Academy & Research Centre
13
© AIR Law Academy & Research Centre

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Personal Capacity- Persons who can be sued

  • 2. 2 INTRODUCTION All persons have capacity to sue in tort All Persons have the capacity to sue and be sued in tort Subject to modification in respect of certain categories of persons Exceptional Rule General Rule © AIR Law Academy & Research Centre
  • 3. 3 INTRODUCTION PERSONAL CAPACITY Who cannot be sued © AIR Law Academy & Research Centre Who cannot sue All persons have capacity to sue in tort
  • 4. 4 PERSONS WHO CANNOT SUE IN TORT Husband and Wife Alien Enemy A Child in the Mother’s Womb Insolvent Convicts and Person in Custody Corporation Foreign State © AIR Law Academy & Research Centre
  • 5. 5 Action between husband and wife Under the Indian law, personal capacity between husband and wife to sue and be sued in torts is governed by their personal laws Earlier at common law, husband and wife could not sue each other for any tort committed against each other © AIR Law Academy & Research Centre However, this rule was abolished by the Law Reforms (Husband and Wife) Act, 1962 The Indian Constitution furthermore removes all anomalies present in common law regarding the marital status and their personal capacity. Article 14 embodies a guarantee against arbitrariness and unreasonableness, considering the case of Ajay Hasia v. Khalid Murjib (1983)
  • 6. 6 ALIEN ENEMY Alien enemies who are residing in India with the permission of Central Government may sue in any Court. But an enemy who is without any such permission or residing in a foreign country cannot sue in any Court, as per Section 83 of Code of Civil Procedure © AIR Law Academy & Research Centre
  • 7. 7 A CHILD IN THE MOTHER’ WOMB CASE : Walker v. Great Northern Railway of Ireland, (1890) 28 LR IR 69 FACTS: A women was with child, was injured in a railway accident, and the child when born was found to be deformed. The infant claimed 1,030 as damages from the railway company HELD: Infant child cannot maintain an action A child cannot sue for injuries caused when in it’s mother’s womb © AIR Law Academy & Research Centre
  • 8. 8 CORPORATIONS A corporation can bring suits for civil wrongs which affect its existence e.g. defamation It cannot sue for torts like assault, battery, false imprisonment etc. because these are wrongs against a person Suits by Corporations A corporation is liable for torts committed by its agents or servants in course of doing an act which is within the scope of the corporation Suits against Corporation © AIR Law Academy & Research Centre
  • 9. 9 PERSONS IN CUSTODY A person who is sentenced to death or penal servitude cannot sue for wrongs to his property In England A person can sue for both wrong done to his person and property. However he cannot sue when his property has been lawfully fortified under sec. 126, 127 and 196 of IPC In India © AIR Law Academy & Research Centre
  • 10. 10 INSOLVENT Cannot sue for wrongs in respect of his property because all his property vests in the official assignee When a tort causes injury to both his person and property the action will spilt © AIR Law Academy & Research Centre Property Person Will pass to the trustee Will remain with the bankrupt
  • 11. 11 Must be Real and not Illusory As per Section 84, CPC a foreign state may sue in any competent Court: provided that the object of the suit is to enforce a private right vested in the ruler or such state or in any officer of such State in his public capacity Cannot sue in any Court of India unless such State has been recognised by the Government of India © AIR Law Academy & Research Centre
  • 12. 12 Reference Book D.D. Basu, The Law Of Torts ,Kamal , Calcutta Ratanlal And Dhirajlal, The Law of Tort, Universal ,Delhi J.N Boriwala, Commentary on Consumer Protection Act,1986,Universal ,Delhi Salmond and Heuston –On the Law of Torts (2000)Universal, Delhi D. M. Gandhi , Law Of Tort, Eastern Lucknow P.K Majumdar, The Law of Consumer Protection In India (1998),Orient Publishing Co., New Delhi R. M Vats, Consumer and The law(1994),Universal ,Delhi © AIR Law Academy & Research Centre
  • 13. 13 © AIR Law Academy & Research Centre