# Pradeep Mohan Chaudhary & Ors v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1037
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-03
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-mohan-chaudhary-ors-v-state-of-u-p-ors-49256
- **Pages:** 11

## Headnote

A. Civil Law-Constitution of India,1950Article 227 - Indian Succession Act,1925Section 278-maintainability of -no bar
under succession act for filing of a single
application
for
grant
of
letters
of
administration in respect of two different
Wills-as per provisions of Order 2 Rule 3
of CPC petitioners in the same suit may
unite several cause of action against the
defendents, therefore, applying for Letter
of Administration by the petitioners with
two wills annexed would be permissibleBoth, in instances where estates of the
deceased persons mentioned in their
respective Wills are separate, or not
clearly demarcated, it would be for the
courts to see that separate applications
for letters of administration, each with a
single Will annexed, are filed for obviating
any confusion with regard to the rights,
duties and liabilities of the administrator
in respect of the respective estates of the
deceased persons under the respective
Wills. (Para 4, 5)

B. Accrual of cause of action is a sine qua
non for a suit to be filed. Cause of action is
a bundle of facts which is required to be
proved to grant relief to the plaintiff.
Cause of action not only refers to the
infringement but also the material facts
on which right is founded. Section 20 CPC
recognizes the territorial jurisdiction of
the courts inter alia where cause of action
wholly or in part arises.(Para 33)

The writ petition is dismissed. (E-6)

List of cases cited:

## Text

10 All. Pradeep Mohan Chaudhary & Ors. Vs. State of U.P. & Ors.
1037
draft within three weeks. In case of failure
to do so, the Registry shall issue a recovery
certificate to District Magistrate concerned,
who shall take steps for recovery of the
same, as arrears of land revenue. When the
amount is deposited or recovered, the same
shall be transferred in favour of State.

11. With the aforesaid direction, the
present habeas corpus writ petition is
dismissed.
----------
(2023) 10 ILRA 1037
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2023

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Matters Under Article 227 No. 7271 of
2023(Civil)

Pradeep Mohan Chaudhary & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Praveen Kumar

Counsel for the Respondents:
G.A.

A. Civil Law-Constitution of India,1950Article 227 - Indian Succession Act,1925Section 278-maintainability of -no bar
under succession act for filing of a single
application
for
grant
of
letters
of
administration in respect of two different
Wills-as per provisions of Order 2 Rule 3
of CPC petitioners in the same suit may
unite several cause of action against the
defendents, therefore, applying for Letter
of Administration by the petitioners with
two wills annexed would be permissibleBoth, in instances where estates of the
deceased persons mentioned in their
respective Wills are separate, or not
clearly demarcated, it would be for the
courts to see that separate applications
for letters of administration, each with a
single Will annexed, are filed for obviating
any confusion with regard to the rights,
duties and liabilities of the administrator
in respect of the respective estates of the
deceased persons under the respective
Wills. (Para 4, 5)

B. Accrual of cause of action is a sine qua
non for a suit to be filed. Cause of action is
a bundle of facts which is required to be
proved to grant relief to the plaintiff.
Cause of action not only refers to the
infringement but also the material facts
on which right is founded. Section 20 CPC
recognizes the territorial jurisdiction of
the courts inter alia where cause of action
wholly or in part arises.(Para 33)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Shivnarayan Vs Maniklal & ors. (2020) 11 SCC
629

2. Adminr. Gen. Vs Dharamvir (1997) AIR All
158

3. Illachi Devi Vs Jain Sty. (2003) 8 SCC 413

4. Raj. HC Adv. Assn. Vs U.O.I. (2001) 2 SCC
294

5. Indian Performing Rights Sty Ltd. Vs Sanjay
Dalia (2015) 10 SCC 161

(Delivered by Hon'ble Jayant Banerji, J.)

1. The aforesaid petition has been
filed with the following prayer:-

"i) issue any order or direction to
the Court of Addl. District Judge-16,
Kanpur Nagar to decide the letter of
Administration Case No.154/70/2013 (Dr.
A.M. Chaudhary & Ors. vs. State of UP &
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
Ors.) finally, within the time fixed by this
Hon'ble Court.

ii) issue any other suitable order
or direction which the Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case.

Iii) to award costs of the petition
to the petitioners."

2. Annexure-3 to the petition is a
certified copy of a petition for letters of
administration under Section 278 of the
Indian Succession Act, 19251 filed by the
three petitioners seeking grant of letters of
administration of a Will dated 13.12.1997
executed
by
Shri
Rajendra
Shankar
Chaudhary and the Will dated 08.04.1999
of Smt. Sarla Chaudhary, which Wills are
stated to be attached to that petition. That
petition came to be numbered as Letter of
Administration Case No.154/70 of 2013.

3. It is contended by the learned
counsel for the petitioners that the
aforestated petition for grant of letters of
administration is pending in the district
court since a long time but is not being
decided.

4. While exercising jurisdiction under
Article 227 of the Constitution of India,
before considering the prayer for grant of
such direction as sought for in this petition,
it is required to be seen whether (a) a letters
of administration with Will annexed can be
granted
to
several
individuals
for
administering the estate of a deceased
person,
and,
whether
(b)
a
single
application
for
grant
of
letters
of
administration with two Wills annexed
executed by two testators, respectively,
would be maintainable in view of the
provisions of the Succession Act.

5. In this regard, the learned counsel
for the petitioners has submitted that there
is no bar under the Succession Act for
filing of a single application for grant of
letters of administration in respect of two
different Wills. He also referred to the
provisions of Order 2 Rule 3 of the CPC to
contend that the petitioners in the same suit
may unite several causes of action against
the defendants. It is contented that
therefore,
applying
for
Letter
of
Administration by the petitioners with two
wills annexed would be permissible.
Learned counsel has relied upon paragraph
nos. 36 and 37 of the judgment in
Shivnarayan Vs. Maniklal and others2.

However, before adverting to the
contentions raised by the learned counsel
for the petitioners, it would be appropriate
to refer to the certain provisions of the
Succession Act and definitions of certain
terms.

6. The term "letters of administration"
is not defined under the Succession Act.
However,
in
Section
2,
the
terms
"administrator", "executor" and "probate"
are defined in clauses (a), (c) and (f)
thereof respectively, which are as follows:-

"(a) "administrator" means a
person appointed by competent authority to
administer the estate of a deceased person
when there is no executor;

(c) "executor" means a person to
whom the execution of the last Will of a
deceased person is, by the testator's
appointment, confided;

(f) "probate" means the copy of
a will certified under the seal of a court of
competent jurisdiction with a grant of
administration to the estate of the testator;".
10 All. Pradeep Mohan Chaudhary & Ors. Vs. State of U.P. & Ors.
1039

7. The Black's Law Dictionary (Ninth
Edition) defines the following terms as
under :-

"estate." The property that one
leaves after death; the collective assets and
liabilities of a dead person.

"legatee". One who is named in a
will to take personal property; one who has
received a legacy or bequest.

"residuary legatee." A person
designated to receive the residue of a
decedent's estate.

"universal legatee." A residuary
legatee that receives the entire residuary
estate.

"letters." Wills & Estates. A
court order giving official authority to a
fiduciary to conduct appointed tasks.

"letters of administration." A
formal document issued by a probate court
to appoint the administrator of an estate.

"letters
testamentary."
A
probate-court
order
approving
the
appointment of an executor under a will
and authorizing the executor to administer
the estate.

8. In the case of Administrator
General v. Dharamvir3, it was defined that
a testamentary disposition by which the
testator gives all his properties to one or
more persons is known as universal legacy
and the recipients of such a legacy as
universal legatees.

9. Part VIII of the Succession Act
deals
with
'Representative
Title
To
Property Of Deceased On Succession'. Subsection (1) of Section 211 provides that the
executor or administrator, as the case may
be, of a deceased person is his legal
representative for all purposes, and all the
property of the deceased person vests in
him as such. Under sub-section (1) of
Section 213, no right as executor or legatee
can be established in any Court of Justice,
unless a Court of competent jurisdiction
has granted probate of the Will under
which the right is claimed, or has granted
letters of administration with the Will or
with a copy of an authenticated copy of the
Will annexed.

10. All grants of probate, letters of
administration and administration of assets
of deceased are governed by Part IX of the
Succession Act. Section 218 provides to
whom administration may be granted
where
the
deceased
is
a
Hindu,
Muhammadan, Buddhist, Sikh, Jaina or
exempted person. It reads as follows:

"(1) If the deceased has died
intestate and was a Hindu, Muhammadan,
Buddhist, Sikh or Jaina or an exempted
person, administration of his estate may be
granted to any person who, according to the
rules for the distribution of the estate
applicable in the case of such deceased,
would be entitled to the whole or any part
of such deceased's estate.

(2) When several such persons
apply for such administration, it shall be in
the discretion of the Court to grant it to any
one or more of them.

(3) When no such person applies,
it may be granted to a creditor of the
deceased."

11. Under Sections 220 and 221 of the
Succession Act, it is provided that letters of
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
administration entitle the administrator to
all rights belonging to the intestate as
effectually as if the administration had been
granted at the moment after his death, and,
letters of administration do not render valid
any intermediate acts of the administrator
tending to the diminution or damage of the
intestate's estate. Section 222 provides that
probate shall be granted only to an executor
appointed by the will, which appointment may
be expressed or by necessary implication.
Sections 223 and 224 read as follows:-

"223. Persons to whom probate
cannot be granted. - Probate cannot be granted
to any person who is a minor or is of unsound
mind nor to any association of individuals
unless it is a company which satisfies the
conditions prescribed by rules to be made, by
notification in the Official Gazette, by the State
Government in this behalf.

224. Grant of probate to several
executors simultaneously or at different
times.- When several executors are appointed,
probate may be granted to them all simultaneously
or at different times.

Illustrations

A is an executor of B's will by express
appointment and C an executor of it by
implication. Probate may be granted to A and C at
the same time or to A first and then to C, or to C
first and then to A."

12. Sections 232 to 236 of the Succession
Act read as follows:-

"232. Grant of administration to
universal or residuary legatees.-When-

(a) the deceased has made a will,
but has not appointed an executor, or

(b) the deceased has appointed an
executor who is legally incapable or refuses
to act, or who has died before the testator
or before he has proved the will, or

(c) the executor dies after having
proved the will, but before he has
administered all the estate of the deceased,

an universal or a residuary
legatee may be admitted to prove the will,
and letters of administration with the will
annexed may be granted to him of the
whole estate, or of so much thereof as may
be unadministered.

233. Right to administration of
representative
of
deceased
residuary
legatee.-When a residuary legatee who
has a beneficial interest survives the
testator, but dies before the estate has been
fully administered, his representative has
the same right to administration with the
will annexed as such residuary legatee.

234. Grant of administration
where no executor, nor residuary legatee
nor representative of such legatee.-
When there is no executor and no residuary
legatee or representative of a residuary
legatee, or he declines or is incapable to
act, or cannot be found, the person or
persons who would be entitled to the
administration of the estate of the deceased
if he had died intestate, or any other legatee
having a beneficial interest, or a creditor,
may be admitted to prove the will, and
letters of administration may be granted to
him or them accordingly.

235. Citation before grant of
administration to legatee other than
universal
or
residuary.-Letters
of
administration with the will annexed shall
not be granted to any legatee other than an
10 All. Pradeep Mohan Chaudhary & Ors. Vs. State of U.P. & Ors.
1041
universal or a residuary legatee, until a
citation has been issued and published in
the manner hereinafter mentioned, calling
on the next-of-kin to accept or refuse letters
of administration.

236. To whom administration
may
not
be
granted.-Letters
of
administration cannot be granted to any
person who is a minor or is of unsound
mind, nor to any association of individuals
unless it is a company which satisfies the
conditions prescribed by rules to be made
by notification in the Official Gazette, by
the State Government in this behalf."

13. Annexure-1 to the petition is a
certified copy of the Will dated 13.12.1997
stated to be executed by the father of the
petitioners,
late
Rajendra
Shankar
Chaudhary. Annexure-2 to the petition is a
photocopy of a Will dated 08.04.1999
stated to be executed by Smt. Sarla
Chaudhary. By the Will dated 13.12.1997,
late Rajendra Shankar Chaudhary is stated
to have bequeathed his property to the
petitioners. The estate of the deceased
Rajendra Shankar Chaudhary appears to
include various immovable properties. On
the other hand, by the Will dated
08.04.1999 stated to be executed by Smt.
Sarla Chaudhary, immovable property
along with other movable properties and
bank accounts have been bequeathed to the
petitioners. Some parts of the estate of the
deceased Sarla Chaudhary are also stated to
be bequeathed to her daughters-in-law. The
estate of the deceased Rajendra Shankar
Chaudhary, that is stated to be bequeathed
by means of the Will dated 13.12.1997,
appears to be different and distinct from the
estate of the deceased Sarla Chaudhary that
is stated to be bequeathed by means of a
Will dated 08.04.1999. The petitioners
have filed the petition before the Court of
the District Judge, claiming to be the
universal/residuary legatees of the deceased
namely, Rajendra Shankar Chaudhary and
Sarla Chaudhary, under the aforesaid two
Wills dated 13.12.1997 and 08.04.1999.

14. For grant of administration to
universal or residuary legatees, in the case
where the deceased has made a Will, but
has not appointed an executor, then under
Section 232 of the Succession Act, he may
be admitted to prove the Will, and letters of
administration with the Will annexed may
be granted to him of the whole estate, or of
so much thereof as may be unadministered.
It is pertinent to note that in the body of
Section 232, universal and residuary
legatee are referred in the singular, as those
who may be admitted to prove the Will and
who
may
be
granted
letters
of
administration with the Will annexed.

15. However, under Section 234,
where there is no executor and no residuary
legatee or representative of a residuary
legatee, or he declines or is incapable to
act, or cannot be found, the person or
persons who would be entitled to the
administration of the estate of the deceased
if he had died intestate, or any other legatee
having a beneficial interest, or a creditor,
may be admitted to prove the Will, and
letters of administration may be granted to
him or them accordingly.

16. As mentioned above, where the
deceased,
who
was
a
Hindu,
Muhammadan, Buddhist, Sikh, Jaina or
exempted person, has died intestate, in that
case the provisions of Section 218 would
apply for grant of letters of administration.

17. It is pertinent to mention here that
under Section 236 of the Succession Act,
there is a bar for grant of letters of
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
administration to any person who is a
minor or is of unsound mind. It also cannot
be granted to any association of individuals
unless it is a company which satisfies the
conditions prescribed by rules to be made
by notification in the Official Gazette, by
the State Government, in this behalf. Prima
facie, the petitioners do not appear to be
associated as an association of individuals.

18. Where the deceased dies intestate,
in that case any person, who would be
entitled to the whole or any part of the
deceased's estate according to the rules for
the distribution of the estate applicable in
the case of such deceased, apply for such
administration, and then, under Section
218, it is left to the discretion of the Court
to grant it to any or more of them.

19. At first blush, a distinction
appears to have been drawn between a
person who may be entitled to apply for
administration in the case of a deceased,
who has made a Will but the eventualities
envisaged in clause (a), (b) or (c) of
Section 232 exist, and, between any or
more persons so entitled as envisaged in
Section 234. However, it is pertinent to
refer to the provision of Section 311 of
the Succession Act, which is as follows:

"311.
Powers
of
several
executors or administrators exercisable
by one. -When there are several
executors or administrators, the powers of
all may, in the absence of any direction to
the contrary, be exercised by any one of
them who has proved the Will or taken
out administration."

Therefore, under the provision
of Section 311, in the absence of any
direction to the contrary by the probatecourt, any one of the several administrators
can exercise the powers of all.

20. Under the provisions of Sections
232 and 234 of the Succession Act before
Letters of Administration can be granted,
the probate Court has to see whether the
applicant/s is/are universal or residuary
legatee/s. In the present case, each of the
three petitioners have apparently been
bequeathed with the estates, respectively,
of each of the two deceased. The
petitioners have filed the petition for grant
of letters of administration with Wills
annexed which Wills do not specify or
imply the appointment of an executor. In
my view, letters of administration with Will
annexed can be granted to any person or
persons for administering the estate of a
deceased person even if they are universal
or residuary legatees as there is no such bar
under the Succession Act. The bar under
Section 236 for grant of letters of
administration extends only to any person
who is a minor or is of unsound mind or
any association of individuals. However,
such bar does not extend to a company
which satisfies the conditions prescribed by
rules. Thus, subject to the provisions of the
Succession Act, a letters of administration
with Will annexed can be granted to one or
several individuals for administering the
estate of a deceased person.

21. There are other kinds of limited
grants of letters of administration under
Chapter II of Part IX of the Succession Act.
Alteration and revocation of grants are
covered by Chapter III of Part IX.
However, in the facts and circumstances of
the present case, no discussion on them is
required.

22. The other aspect of the matter is
that whether a single application for grant
10 All. Pradeep Mohan Chaudhary & Ors. Vs. State of U.P. & Ors.
1043
of letters of administration with two Wills
annexed
executed
by
two
testators
respectively, would be maintainable in
view of the provisions of the Succession
Act. As noted above, separate estates of the
two deceased namely, Rajendra Shankar
Chaudhary and Sarla Chaudhary, have been
stated to be bequeathed, respectively, by
means of Wills dated 13.12.1997 and
08.04.1999. Under Section 291, every
person to whom any grant of letters of
administration, other than a grant under
section 241, is committed, he is mandated
to give a bond to the District Judge with
one or more surety or sureties, engaging for
the
due
collection,
getting
in,
and
administering the estate of the deceased,
which bond shall be in such form as the
Judge may, by general or special order,
direct. However, where the deceased was a
Hindu, Muhammadan, Buddhist, Sikh,
Jaina or an exempted person, the exception
made in respect of a grant under Section
241 shall not operate.

23. In case, on an application moved
by petitioner, the Court may, on being
satisfied that the engagement of any such
bond has not been kept, the aforesaid
administration bond can also be assigned
by the Court to some person, his executors
or administrators, and upon such terms as
the Court may think fit, who shall
thereupon be entitled to sue on the said
bond in the manner and in terms provided
in Section 292.

24. Where a grant of probate or letters
of administration is revoked or annulled
under the Act, the person to whom the
grant was made shall forthwith deliver the
probate or letters of administration to the
court which made the grant as provided in
Section 296. Under Section 301, a private
executor or administrator can be removed,
suspended or discharged and the High
Court may provide for succession of
another person to such office and the
vesting in such successor of any property
belonging to the estate. Where a grant of
probate or letters of administration has
been made under the Succession Act, the
High Court may, on an application made to
it, give to the executor or administrator any
general or special directions in regard to the
estate or in regard to the administration
thereof under Section 302. Powers and
duties of an administrator or executor are
provided in Chapter VI and VII of Part IX
of the Succession Act.

25. Under Section 332, in Chapter
VIII of Part IX, the assent of the executor
or administrator is necessary to complete a
legatee's title to his legacy. Under Section
335, when an executor or administrator is a
legatee, his assent to his own legacy is
necessary to complete his title to it and his
assent may be expressed or implied. The
duties and liabilities of executor or
administrator pertaining to payment and
apportionment of annuities, investment of
funds, produce and interest of legacies,
refunding of legacies, devastation, are
provided in Chapter IX, X, XI, XII and
XIII of Part IX of the Succession Act.

26.

The
grant
of
letters
of
administration with Wills annexed in
respect of estates of deceased persons has
to be viewed in the light of the several
provisions of the Succession Act which
have been briefly referred to above. They
provide
for,
inter
alia,
giving
of
Administration
Bonds,
revocation
or
annulment of letters along with its
conditions and consequences, the power to
sue in respect of all causes of action that
survive the deceased including power for
recovery of debts, power to dispose of the
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
property of the deceased, duty to pay
expenses, duty to exhibit in the court an
inventory of all the property in possession
and account of all the credits and also all
the debts owing by any person. It is not
only a matter of the duty in a fiduciary
capacity that an administrator owes under
the Will to the estate of the deceased, but
also the solemn duty the administrator
owes to the court that grants such letters.

27. In the case of Illachi Devi v. Jain
Society4, while referring to the provisions
of Sections 223 and 236 of the Succession
Act and observing that no letters of
administration can be granted in favour of a
society which is but an association of
persons, although it could be a beneficiary
under a Will, the Supreme Court opined:-

"12. The object and purpose of
the said provisions is to enable the court to
give full effect to be given to the Will of
the testator, such that the administrator
would avoid the occurrence of any personal
considerations
in
the
matter
of
administration and would perform his
various duties and functions with all
efficiency, integrity and honesty. The
nature of this tremendous responsibility
may be seen from the fact that an
administrator is entrusted to act in a
fiduciary capacity, and not liable to be
discharged until the testament is fulfilled in
its entirety.

...........................................

39. We have delineated above the
requisite
fiduciary
character
of
an
administrator of the estate of the deceased,
who must be accountable not only to the
directions of the testator, as expressed in
the testament, but also to the interests of the
beneficiaries
and
the
court.
........................
...................................................
..."

28. There may occur instances which
may give rise to an anomaly. To illustrate,
in the background of similar facts and
circumstances that exist in the instant
petition, in case a letters of administration
with two Wills annexed is granted by the
court, and for some reason the court finds
that in respect of an estate corresponding to
one of the Wills the letters have to be
annulled or revoked under Chapter III of
Part IX of the Succession Act, then the
effect of such annulment or revocation
would be that each of the two estates
respective to the two Wills become
unadministered. Similarly, there could arise
another such instance relating to grant of
letters of administration with two Wills
annexed, where an administration bond
pertaining to one of the two estates of the
deceased is assigned under Section 292 by
the Court.

Such eventualities would give
rise to a practical difficulty which is not
contemplated by the Succession Act. It is
pertinent to note that under Section 290, the
form for grant of letters of administration is
prescribed
in
Schedule
VII
of
the
Succession Act, which is as follows:-

"FORM OF LETTERS OF
ADMINISTRATION

I, .........., Judge of the District
of............ [or Delegate appointed for
granting probate or letters of administration
in (here insert the limits of the Delegate's
jurisdiction)], hereby make known that on
the.... day of..... letters of administration
(with or without the Will annexed, as the
case may be), of the property and credits
10 All. Pradeep Mohan Chaudhary & Ors. Vs. State of U.P. & Ors.
1045
of........., late of........, deceased, were
granted to...... the father (or as the case may
be) of the deceased, he having undertaken
to administer the same and to make a full
and true inventory of the said property and
credits and exhibit the same in this Court,
within six months from the date of this
grant or within such further time as the
Court may, from time to time, appoint, and
also to render to this Court a true account
of the said property and credits within one
year from the same date, or within such
further time as the Court may, from time to
time, appoint."

29. Therefore, in case a letters of
administration with two wills annexed is
granted by the Court, such letters would not
be severable.

30. In view of the aforesaid, in my
view, a single application for grant of
letters of administration with two Wills
annexed
executed
by
two
testators,
respectively, would not be maintainable in
view of the provisions of the Succession
Act. Both, in instances where estates of the
deceased persons mentioned in their
respective Wills are separate, or, not clearly
demarcated, it would be for the courts to
see that separate applications for letters of
administration, each with a single Will
annexed,
are
filed.
This
would
be
necessary, given the scheme of the
Succession Act and for obviating any
confusion with regard to the rights, duties
and liabilities of the administrator/s in
respect of the respective estates of the
deceased persons under the respective
Wills.

31. Therefore, the contention of the
learned counsel for the petitioners that
since there is no bar in the Succession Act
in filing an application for Letter of
Administration with two wills annexed,
therefore, the petition before the District
Court would be maintainable, does not
appear to be correct in view of the facts and
circumstances of the case.

32. So far as the submission of the
learned
counsel
for
the
petitioners
regarding joinder of causes of action is
concerned, the same is not correct and is
not applicable in the present case. In the
case of Rajasthan High Court Advocates'
Assn. v. Union of India5, it is observed as
follows:-

"17. The expression "cause of
action" has acquired a judicially-settled
meaning. In the restricted sense cause of
action means the circumstances forming the
infraction of the right or the immediate
occasion for the action. In the wider sense,
it means the necessary conditions for the
maintenance of the suit, including not only
the infraction of the right, but the infraction
coupled
with
the
right
itself.
Compendiously
the
expression
means
every fact which it would be necessary for
the plaintiff to prove, if traversed, in order
to support his right to the judgment of the
Court. Every fact which is necessary to be
proved, as distinguished from every piece
of evidence which is necessary to prove
each fact, comprises in "cause of action". It
has to be left to be determined in each
individual case as to where the cause of
action arises. .............................."

33. In the case of Indian Performing
Rights Society Ltd. v. Sanjay Dalia6, it
has been observed as follows:-

"17. Accrual of cause of action
is a sine qua non for a suit to be filed.
Cause of action is a bundle of facts which
is required to be proved to grant relief to
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaintiff. Cause of action not only
refers to the infringement but also the
material facts on which right is founded.
Section 20 CPC recognises the territorial
jurisdiction of the courts inter alia where
the cause of action wholly or in part arises.
It has to be decided in each case whether
cause of action wholly or in part arises at a
particular place, as held by this Court in
Rajasthan High Court Advocates' Assn. v.
Union of India. Thus, a plaintiff can also
file a suit where the cause of action wholly
or in part arises."

(emphasis supplied)

34. In the aforesaid application /
petition filed under the Succession Act for
grant of Letter of Administration with wills
annexed of the estate of the deceased, the
petitioners seek an order of the Court to
administer the estates of the deceased by
moving a petition to the Court for grant of
letters of administration under Section 278
of the Succession Act on the premise that
they are eligible for grant of letters of
administration and that they would be
willing to discharge their duty in fiduciary
capacity consequent to such grant. The
decision is of the Court whether or not to
grant letters of administration to the
petitioners given the scheme of the
Succession Act. It is only where a caveat
is
lodged
against
grant
of
administration under Section 284 and
after it has been entered under Section
285, that no proceeding can be taken on
such petition until after such notice to
the person by whom the same has been
entered
as
the
Court
may
think
reasonable.

35. There may, however, be
instances where a legatee or any person
may apply for letters of administration
for any of the limited purposes which
are referred to in Chapter II of Part IX
of the Succession Act on the occurrence
of any eventuality which may be an
infringement or an infraction of the
right of a legatee, or the estate of the
deceased is likely to be affected, etc.
Those instances may be construed to be
causes of action in view of the facts
giving rise to them. Those causes of
action may be joined in a petition for
letters. However, joinder of such causes
of action are very different from saying
that a letters of administration with two
Wills annexed would be maintainable.
Letters
of
administration
may
be
granted by the court by an order as a
result of consideration of a cause or
causes of action that may arise in a
given set of facts and circumstances.
The judgment relied upon by the
learned counsel for the petitioners in
support of his submission is of no
assistance to the petitioners. In the facts
and circumstances of the case, there is
no merit in the contentions advanced by
the learned counsel for the petitioners.

36.

Under
the
facts
and
circumstances of the case, no relief as
prayed for can be granted. Further, in
view of the opinion expressed above,
the aforementioned petition bearing
Letters of Administration Case No.154
of 2013 of the petitioners for grant of
letters of Administration with two Wills
annexed is not maintainable. It is left
open to the petitioner to move an
application
for
withdrawal
of
the
aforesaid
petition
for
letters
of
administration with liberty to file two
separate petitions. If such an application
is moved, the District Judge is requested
to pass appropriate orders accordingly,
while
preserving
the
right
of
the
10 All. Sunil Kumar Vs. State of U.P. & Anr.
1047
petitioners to file appropriate petitions
afresh. It is made clear that no opinion
expressed herein shall be construed to be
on merits of the case of the petitioners.

37.

Subject
to
the
aforesaid
observation, this petition is dismissed.

----------
(2023) 10 ILRA 1047
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 9902 of
2022(Criminal)

Sunil Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Narendra Singh Chahar, Sri Girish Kishor
Sharma

Counsel for the Respondents:
G.A., Sri Mohit Kumar

A.
Criminal
Law-Constitution
of
India,1950-Article 227 - Indian Penal
Code, 1860-Sections 420, 467, 468 & 471
-
Negotiable
Instrument
Act,1881
-
Section 138 -Challlenge to-summoning
order-In the statement given by the
complainant under section 200 Cr.PC that
complainant and accused persons were
engaged
in
buying
and
selling
of
buffaloes-a cheque of Rs. 13,50,000/- was
given for certain buffaloes purchased by
the accused-the cheque was dishonoured
because there was no such bank accountIn reply accused said nothing about the
bank account number rather he said that
some cheques were missing of his cheque
book-he is taking a defence that cheque in
question, somehow fell in the hands of
complainant and he misused it-Thus, the
summoning order is against the provisions
of law on two grounds-First, that the
cheque was dishonoured for the reasons
which are not covered under section 138
N.I. Act-Secondly, the complaint is premature, in asmuch as it was filed before
the cause of action arose-Hence, no
offence under section 138 of N.I. Act is
made
out-Hence,
the
impugned
summoning order is set aside-learned trial
court is directed to give an opportunity of
hearing to the complainant and pass a
fresh order according to law.(Para 1 to 20)

B. The provision of section 138, including
Clause (c) to the Proviso, being penal,
have to be strictly construed. In short,
there can be no valid complaint, before
the expiry of the period of 15 days from
the date of service of notice of demand,
upon
the
payee
by
the
drawer.
Proceedings taken on the basis of a
complaint brought earlier, would not at all
be maintainable.(Para 15)

The writ petition is disposed of. (E-6)

List of cases cited:

1. Rajeshwar Prasad Bhardwaj Vs St. of U.P. &
ors. (2019) 107 ACC 79

2. Yogendra Pratap Singh Vs Savitri Pandey &
anr. (2014) 87 ACC 602 SC

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Narendra Singh Chahar,
learned counsel for the petitioner, Sri Mohit
Kumar, learned counsel for the respondent
no.2 and learned A.G.A. for the State.

2. This petition has been filed by the
petitioner- Sunil Kumar with a prayer that
the summoning order dated 20.12.2018
passed by the trial court and the order of
the revisional court affirming the same,
passed on 24.09.2022, be set-aside.