Sections 305-306 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
When a person dies, claims he could have made, and claims others could have made against him, do not all disappear. Sections 305 and 306 say which of them pass to and against the executor or administrator and which do not. This article explains both sections and the Act's two illustrations, as per the text of the Act consulted.
An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and the same power to recover debts as the deceased had when living (s.305). All demands and rights to prosecute or defend any action or special proceeding existing in favour of or against a person at his death survive to and against his executors or administrators (s.306). Two exceptions are printed: causes of action for defamation, assault, or other personal injuries not causing the death of the party; and cases where, after the death, the relief sought could not be enjoyed or granting it would be nugatory.
Section 305: power to sue
Section 305 is short. An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased. The executor or administrator also may exercise the same power for the recovery of debts as the deceased had when living.
Two things are said here. The power to sue covers causes of action "that survive the deceased", so the section depends on s.306 for the question of which ones survive. And the recovery of debts is put on the same footing: the executor or administrator can do what the deceased could have done.
A debt owed to the deceased is therefore not lost with him. For the reader who is an executor, this is where the duty to collect the estate (a duty discussed in later sections) finds its legal base. For a general view of the executor's role, see our guide on executor duties under a will.
Section 306: what survives and what does not
The first part of s.306 is broad: 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. Note both directions: the estate can sue, and the estate can be sued.
The two exceptions
| Exception | Words of the text |
|---|---|
| Personal wrongs | Causes of action for defamation, assault, as defined in the Indian Penal Code (45 of 1860), or other personal injuries not causing the death of the party |
| Relief that cannot be enjoyed | Cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory |
The Act refers to the Indian Penal Code (45 of 1860) for the meaning of assault; the reader should check the current law for the corresponding provision. The text consulted does not say what "other personal injuries" means beyond the phrase "not causing the death of the party".
If you are weighing whether a pending suit or claim can be continued by or against an estate, you can talk to us about estate claims and disputes.
The Act's illustrations
The Act gives two illustrations, which are old and are retold here only as the Act's own:
- A railway collision. A collision takes place on a railway because of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.
- A suit for divorce. A sues for divorce. A dies. The cause of action does not survive to his representative.
The first illustration fits the "personal injuries not causing the death of the party" exception. The second fits the exception about relief that cannot be enjoyed after death.
A fresh example
Mr. Qureshi is owed a sum by a customer, and has already sued for recovery when he dies. The right to prosecute an existing action in his favour is within the first part of s.306, and under s.305 his executor has the same power for the recovery of debts as he had. Compare a different case: Mr. Qureshi had been hurt in a road accident, not so as to cause his death, and had not brought any action before he died. On the printed words of the personal-injury exception, that cause of action does not survive.
Points to remember
- Both directions. Section 306 speaks of rights "in favour of or against" a person.
- The exceptions are narrow words. The text names defamation, assault as defined in the Indian Penal Code, and other personal injuries not causing death, plus relief that would be nugatory.
- Time limits are separate. The sections say nothing about limitation periods. For the effect of a death before the right to sue accrues, see our post on section 16 of the Limitation Act, 1963, which is a different Act with its own rules.
- Capacity of the executor. An executor's power to sue depends on being the executor or administrator; see our article on the earlier section about the executor of his own wrong for the position of a person who is not.
Later amendments are not shown in the text consulted and the current law on survival of actions should be checked.
Need help with a claim by or against an estate?
If you are an executor or administrator deciding whether to carry on a claim, or a person who has a claim against a deceased's estate, we can explain how the Act treats it and help you plan the next step. Start with our legal dispute resolution service.
Key takeaways
- An executor or administrator may sue on surviving causes of action and recover debts as the deceased could have (s.305).
- Demands and rights to prosecute or defend actions survive to and against executors and administrators (s.306).
- Exceptions: defamation, assault as defined in the Indian Penal Code, other personal injuries not causing death, and cases where the relief would be nugatory.
- The Act's illustrations: a passenger injured but not killed who dies without suing, and a divorce petitioner who dies.
Read next
- Sections 303-304: executor of his own wrong and his liability
- Section 307: power of an executor or administrator to dispose of property
- Sections 308-315: expenditure, commission, purchase by executor and several executors
- Limitation period for filing suits and appeals
Disclaimer: Based on an unofficial print of the Indian Succession Act, 1925 showing amendments up to the Indian Succession (Amendment) Act, 2002 (26 of 2002), as consulted on 2 October 2026. It explains the words of the statute only; later amendments, State amendments and rules, court fees and the way courts apply these sections should be checked. This article is general information, not legal advice; check the official text before acting.