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2010 DIGILAW 2339 (ALL)

Shanti Devi, In The Matter of: Late Bhai Lal v. .

2010-08-04

PANKAJ MITHAL

body2010
Hon'ble Pankaj Mithal,J. - Petitioner Smt. Shanti Devi, the daughter of the deceased Bhai Lal, has applied for grant of Letters of Administration to the limited estate of the deceased as mentioned in Annexure-1 to the petition. The petitioner had previously also applied for grant of Letters of Administration with regard to the estate of the aforesaid deceased being Testamentary Case No. 36 of 29. It was allowed vide judgment and order dated 15.2.2010 and Letters of Administration in respect of properties of the deceased as mentioned in the schedule of properties as per Annexure-1 to the earlier petition was issued. The properties mentioned in the schedule of property and enclosed with the present petition were not part of the earlier testamentary case. The aforesaid properties were left out from being mentioned while seeking Letters of Administration earlier. It is for this reason that the petitioner has applied for grant of another Letters of Administration. The present petition for grant of Letters of Administration in effect is a second petition for the same cause of action. Order II Rule 2 C.P.C. provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of particular cause of action and were the plaintiff omits to sue or intentionally relinquishes any portion of his claim he shall not afterwards be allowed to sue for such omitted or relinquished part of the claim. The words of Law above are clear and positive and includes accidental omission or voluntary relinquishment of part of the claim or relief, for which subsequent suit is barred. The above provision is based on the principle that no one should be vexed twice for one and the same cause. This principle also protects the courts being vexed again and again for the same cause of action. The cause of action for the petitioner in the previous testamentary case as well as in the present case is the death of the deceased Bhai Lal. Therefore, petitioner is not entitled in law to maintain this second petition even if there was any omission on her part to include a portion of the claim in her former case accidentally or due to any other reason. Therefore, petitioner is not entitled in law to maintain this second petition even if there was any omission on her part to include a portion of the claim in her former case accidentally or due to any other reason. Their Lordships of the Privy Council in the case of Naba Kumar Hazra and another vs. Radhyashyam Mahish and others AIR 1931 Privy Council 229 ruled that relief arising out of the same cause of action as in the previous suit cannot be granted in a subsequent suit In the case of Moonshee Buzloor Ruheem and Shumsoonnissa Begum and Jodonath Bose and Shumsoonnissa Begum reported in (1866-67) 11 Moore's Indian Appeals 551 the Privy Council went on to lay down that if the plaintiff was aware of his rights but failed to include any portion of the claim in the former suit accidentally or by oversight he will not be exempted from the bar placed by Order II Rule 2 C.P.C. The Supreme Court of India in a case reported in AIR 1970 Supreme Court 1059 Sidpamappa vs. Rajashetty & others held if the cause of action enables a party to seek a larger and wider relief but the said person instead seeks a limited relief, he cannot afterwards be permitted to seek the balance relief by independent suit or proceedings. In view of the above legal principle which is also enshrined in Order XXIII Rule 1 and Section 11 C.P.C. as well as on public policy, petitioner cannot be permitted to maintain the second petition for grant of Letters of Administration in respect of proprieties of the same deceased person. Section 257 of the Indian Succession Act permits grant of probate or Letters of Administration in respect of 'rest' of the estate of the deceased even where grant has been made earlier. Letters of Administration must as a general rule, relate to the entire estate of the deceased and it is only in exceptional cases administration limited to a fraction of a estate is granted. A close scrutiny of the aforesaid provision would reveal that the same would be applicable only where the earlier grant has been made with an exception. Letters of Administration must as a general rule, relate to the entire estate of the deceased and it is only in exceptional cases administration limited to a fraction of a estate is granted. A close scrutiny of the aforesaid provision would reveal that the same would be applicable only where the earlier grant has been made with an exception. In the present case while issuing Letters of Administration to the petitioner in the former case no such exception was made and as such the provisions of Section 257 of the Indian Succession Act would not be attracted so as to permit the petitioner to apply independently again for the grant of Letters of Administration for the rest of the estate of the deceased. In view of the above this petition for grant of Letters of Administration is dismissed as not maintainable with liberty to the petitioner to seek amendment/rectification in the earlier petition, if so advised.