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May 2T andJuly 8.
D. CjKigaUa, 39.
Civil Procedure Code, a. 534 (proviso)—Renewal of application, oncedismissed, for probate or letters of administration—Discretion ofDistrict Judge with reference thereto.
D, claiming to be the legitimate son of A, applied for letters ofadministration to the estate of A, naming in his petition A’sparents and two brothers as respondents. Respondents opposedthe petition on the ground that D was not the legitimate son of A.The District Judge tried the issue as to legitimacy, and being ofopinion that it was not satisfactorily proved that D was legitimate,dismissed his petition. D thereafter renewed his petition, namingin it as respondents the same persons as those named before, andhis own mother in addition—
Held, that under the proviso to section 534 of the Civil ProcedureCode it was within the power of the District Judge to receive thenew application, but he was not. obliged to do so.
The proviso to section 534 allowing the renewal of an application,once dismissed, for probate or letters of administration, wi'l receiveeffect in cases where there is a change of circumstances, or when theapplication can be supported by additional evidence, or on groundsdifferent from those considered^and adjudicated upon by the Court.
'J'HE facts of the case sufficiently appear in the judgment.
In the Matter of the Goods and Effects of AppuhamyArachchi, Deceased.
Between Dingibiappu, Petitioner, and Punchirala et al.,Respondents.
De Saram, for appellant.
Bawa, for respondent.
Cur. adv. vult.
8th July, 1896. Lawrie, J.—
In September, 1895, Dingiriappu applied for letters of adminis-tration to the estate of Appuhamy Arachchi, who died in November,1891. . He named as respondents the father and mother and thetwo brothers of the deceased.
He stated in his petition that he was the only son of the deceased.
The respondents opposed this application on the ground thatthe petitioner was the illegitimate son of the deceased Arachchi.
The issue as to legitimacy was tried on 15th January, 1896.The District Judge of K^galla discharged the rule nisi anddismissed the petition, holding that it had not been satisfactorilyproved that the petitioner was legitimate.
From that decision no appeal was taken. Administration wasnot granted to any one. On 14th February, 1896, the petitioner
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presented the present application for administration of the same 1890.
estate, again alleging that he was the only son, and naming the 8iay 21 and
same respondents, with the addition of his mother.
The District Judge refused to entertain the second application,observing that the petitioner’s proper course was to have appealedin the former case.
Against this refusal the applicant now appeals. He rests hisappeal on the proviso to the 534th section of the Code : “ Provided,
“ however, that the dismissal of the petition shall not be a bar to“ a renewal of the application by the petitioner as long as grant“ either of probate of the deceased’s will or of administration of“ his property shall not have been made, either on the occasion“ of this application or subsequently thereto, to some other person“ than the petitioner.” Under this section it certainly was withinthe power of the District Judge to have received this renewedapplication, but I am of opinion that he was not obliged to do so.
It would have been different had the petition set forth res noviterveniens ad notitiam—if he had stated that he could now adduceevidence which was beyond his power when the former applicationwas heard, but he does not say that he has any other evidenceavailable than he had at the last trial. Although the dismissalof the former petition is not res judicata either as to the petitioner’slegitimacy or as to his right to administer, it is right to preventrespondents from being harassed, and the time of the Court frombeing wasted in re-hearing the same witnesses on the same issue.
The proviso in the 534th section allowing a renewal will receiveeffect in cases where there is a change of circumstances, or whenthe application can be supported by additional evidence, or ondifferent grounds than the Court considered and adjudicated on.
I recommend that the order of the District Judge be affirmedwith costs.
The District Court is directed to take steps to appoint anadministrator under section 619. The present applicant’s rightsto claim as heir when administration is granted are expresslyreserved.
Bonseb, C.J.—I agree.
In the Matter of the Goods and Effects of APPUHAMY ARACHCHI, Deceased