• Sat. Jun 10th, 2023

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Individual Incapability in Law of Torts- Who can sue and can be sued

Individual Incapability in Law of Torts

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General defences

In case of torts,  Generally, every person has a capacity to sue, liability to be sued but there are some exceptions to the rule.

Following persons are unable to sue or liability to be sued due to incapability.

  • Convict
  • Alien enemy
  • Married woman or husband and wife
  • Corporation
  • Infant
  • Insolvent person
  •  Foreign State and Ambassadors
  •  Lunatics
  • Government
  • Trade Union

Convict – Primitively, a person, a convict, whose sentence was in force, could not sue anyone for damage to his property but later in 1948 the criminal justice act, 1948 was passed and this difficulty was removed. Now, a convict can sue for damage to his property.

Alien enemy –

A foreign (Alien) enemy is a person of hostile nationality or a person from enemy territory of any nationality. A foreign enemy cannot sue in his own right.

In India, an alien enemy can sue only after acquiring permission from the central government under Sec. 83 of the civil procedure code. The alien enemy who livees out of india, can sue in indian courts.

Any firm whose some partners live in hostile nation, can’t sue in indian courts. Where any foreigner who is living in india without permission of indian government, he can’t sue for any damages. But any foreigner of allies living in india can sue in indian courts for damages. Any foreigner of allies has capacity to sue.

Married woman

Initially, under English law, both husband and wife were formed as a single legal entity, So the wife had no right to sue her husband earlier for any wrongdoing. Even she could not sue or be sued unless her husband joined her as a party to the suit. But The Married Women Property Act 1882 and the Reform Act (Husband and Wife) Act 1962 which changed the whole situation. Now a married woman can sue her husband. She can sue a person without her husband joining as party. In India, today wife and husband are considered as separate entities and so they can sue each other independently.


  A corporation is a legal/juridical person. Therefore it can sue another person.  It may bring action for those civil wrongs which affect its property but a corporation cannot sue for those wrongs which do not affect its property.

A corporation is a legal / judicial person. So it can sue another person. It can sue a citizen for civil wrongd that affect its property but a corporation can’t sue for those wrongs that don’t affect its  property.

But an unincorporated association hasn’t any legal personality and so, law provides `such associations no right to sue anybody.

 In case of Manchester Vs Williams

It washeld that a corporation has the right to sue, not only for the property, but also for its individual fame.


In India, minors are considered incapable of suing anyone because they no longer have the right to sue, but at the same time the minor can sue another person through a parent or friend (who is an adult). In the absence of such a person, the court may appoint a legal guardian for the child so that he can fight for his rights.

In walker Vs Great Northern Railways, In this case, a pregnant woman was injured in a train accident, which resulted in the birth of her child being deformed. The court ruled that the minor could not recover the injuries he suffered while in his mother’s womb. But in a case with similar facts the Supreme Court of Canada granted the minor remedy.

Now An amendment in done in sec. 1 of katjenital disabilities ( civil liability ) Act, 1976. According to it, Any person who is liable for the incident which has affected the parents of child so that the child born disabled, would be liable to the child if he was liable to the tort towards parents.


An insolvent person is considered incapable in law to be prosecuted for damages for an act done to his property. The reason is clear that the insolvent person ceases to be the owner of his property. All his property remains vested in the trustee according to the English law. According to Indian law, the property of the insolvent vests in the official assignee or official receiver. Therefore, the official assignee or receiver has the right to sue for the act done against that property.

 But if the insolvent person has committed an unfair act against himself such as assault, defamation, etc., then he has the right to sue. If the damage is caused to both the person and the property at the same time, then the right of litigation against the personal injury rests with the insolvent and the right to sue the property rests with the official assignee or official receiver. In such cases, both the insolvent person and the official assignee or official receiver can file suit jointly. The insolvent person can bring after damages for the property which is vested in the official assignee or official receiver. And a suit can be filed against him.

Foreign State and Ambassadors-

Under the law of tort, no foreign state can sue for damages in any court in India unless the Government of India recognizes such state.

 It is provided in 84 of Civil Procedure Code.—Any foreign State may file suit in a competent court if the object of such suit is to enforce the authority vested in the ruler of that State or in any office of such State.

Foreign Sovereign – English courts have no right to take proceedings against any independent foreign monarch or authority unless he himself considers himself subordinate to the court.

According to Indian Law Code of Civil Procedure 86 – Cases against ambassadors and diplomatic agents can be tried only with the permission of the central government.

As per sec. 87 of  CPC

It is mandatory to obtain prior permission of the Central Government for suing foreign rulers, ambassadors, envoys and high commissioners of any nation.


Emperor or Sovereign – According to constitutional law, legal proceedings against a sovereign king or emperor cannot be done in any court. There is a saying in the English language that “the king can do no wrong”.

 According to Article 361 of the Constitution of India, the President of India and the Governor of a State shall not be bound to answer in any court.

According to Article 300 of the Indian Constitution, the Government of India can sue in the name of the Union of India or a civil suit can be brought against it in the name of the Union of India.


When any action is committed by a lunatic person (mad) who is not in his stable state of mind then such person can’t be sued. But if such person commits a wrong when he is in a stable situation of mind and can interpret the meaning or consequences of his actions then he can be sued.

Trade Union – According to section 18 of the Indian Trade Union Act 1926, a registered trade union cannot be prosecuted or its members for any labor dispute. If the officer or employee of the union has caused any kind of damage to the plaintiff by taking action to settle labor disputes, even then legal action cannot be taken against his worker or against the union fund.

A trade union may or may not be registered under the Indian Trade Union Act. If registered, it can be sued in its individual name; if not registered, one or more members of the registered association can be prosecuted as representatives of all the members.