Home  /  Arbitration and Conciliation Act, 1996  /  Section 40

Section 40: Arbitration agreement not to be discharged by death of party

Arbitration and Conciliation Act, 1996 • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1996
Section 39 All 87 Sections Schedules (4th, 5th, 7th) Section 41
Statutory Defined Terms in this Section: (Click any term for official legal definition)
Arbitration Sec 2(1)(a) Arbitration Agreement Sec 7

Legal Commentary & Landmark Judgments: Section 40

Section 40 of the Arbitration and Conciliation Act, 1996 provides that an arbitration agreement shall not be discharged by the death of any party thereto, but shall be enforceable by or against the legal representatives of the deceased.

  • Survival After Death: An arbitration agreement shall not be discharged by the death of any party thereto, either as respects the deceased or as respects any other party.
  • Enforceability by / against Legal Representatives: Shall be enforceable by or against the legal representative of the deceased party.
  • Mandate of Arbitrator Not Terminated: Section 40(2): The mandate of an arbitrator shall not be extinguished by the death of any party by whom they were appointed.
  • Exception for Personal Contracts: Section 40(3): Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person (actio personalis moritur cum persona).
Key Landmark Precedents:
  • Ravi Prakash Goel v. Chandra Prakash Goel, (2008) 13 SCC 667: The Supreme Court authoritatively held that under Section 40, an arbitration agreement survives the death of a party; legal representatives of a deceased partner have the statutory right to enforce the arbitration clause to recover their share.
  • Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619: Affirmed that arbitration proceedings do not abate upon the death of a party; legal representatives can be substituted directly before the arbitral tribunal.
Courtroom Practice & Strategic Litigation Guidance:

Upon the demise of a contracting party, file an application before the arbitral tribunal under Section 40 bringing the legal representatives on record with certified death and legal heir certificates; no fresh arbitration reference is required.

Section 39 All 87 Sections Schedules (4th, 5th, 7th) Section 41