Smt. Kaithuami(L) Tr.Lrs.. vs Smt. Ralliani

一 C 一 Dr.LalrinlianaSallo(p-1D)

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4. P.S. Dahrawka and Kaithuami, through whom the parties

herein are claiming inheritance, were married to each other on

28th January, 1927. Ten children were born out of the said

wedlock, i.e., two sons and eight daughters. Out of the said ten

children, one son died at the age of one and half year in the

year 1940 and one daughter died a week after her birth.

5. Though in the judgment, the High Court has referred that

the property in dispute was purchased by P.S. Dahrawka in the

year 1972 by virtue of LSC No. AZL 56 of 1972, it is the

contention of the appellants herein that the said property was

jointly purchased by P.S. Dahrawka and Kaithuami in the year

1945. P.S. Dahrawka died on 5 th March, 1978. At the time of

his death, he was survived by his wife Kaithuami, only son

Thanhnuna and seven daughters. All the daughters were

married and living with their respective families. After his

death, his youngest daughter, Thansangi Huha (appellant No.4

herein), was divorced and came to live with her mother

Kaithuami in January, 1997. The son Thanhnuna, who died in

the year 1996, was survived by his widow Ralliani and two

3 daughters, namely, Laldinpuii and Lalmuanpuii, who are the

respondents herein.

6. After the death of P.S. Dahrawka, the son Thanhnuna

applied for the heirship certificate in his name in respect of the

properties covered by LSC No. AZL 56 of 1972 left by his father,

i.e., P.S. Dahrawka. His claim was based on the Mizo

Customary Law of Inheritance, which provides that a son shall

inherit the properties of a Mizo and if the deceased is survived

by more than one son, the youngest son shall inherit the

property. However, before his application for heirship

certificate could be decided, Thanhnuna died on 28 th April,

1996. After his death, his mother Kaithuami submitted an

objection on 31st May, 1996. The Subordinate District Council

Court, Aizawl dismissed the application of Thanhnuna for

heirship certificate on 11th June, 1996 due to his death. His

widow Ralliani (respondent No.1 herein) filed an application for

restoration of application for heirship certificate filed by her

husband­deceased Thanhnuna. The same was dismissed by

the Subordinate District Council Court, Aizawl vide order dated

3rd July, 1996.

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7. In the meantime, mother Kaithuami also filed an

application being H.C. No.1275 of 1996 claiming heirship

certificate in respect of the properties of her husband deceased

P.S. Dahrawka. The said application was objected to by

Ralliani and her two daughters. As such, the dispute came to

be converted into a civil suit being Civil Suit No.13 of 1996 in

the Court of Subordinate District Council Court, Aizawl. Vide

judgment and order dated 7th August, 1997, the said suit came

to be decreed in favour of the mother Kaithuami and she was

declared the legal heir of her deceased husband P.S. Dahrawka

in respect of the disputed properties.

8. The respondents herein filed an appeal being C.A. No. 12

of 1997 before the District Council Court, Aizawl. The

Appellate Court vide order dated 9 th July, 2001 directed that

the disputed property to be divided between four daughters of

Kaithuami, i.e., respondents therein (i.e. appellants herein) on

one hand and three appellants therein (i.e. respondents herein)

being legal heirs of Thanhnuna on the other hand.

9. The said judgment and order of the Appellate Court was

assailed by the appellants herein before the High Court in RSA 5 No.3 of 2001. The High Court vide judgment and order dated

13th May, 2003, observed that there was no meaningful

discussion on the legal entitlements of either of the parties in

the changed situation following the death of the predecessors­

in­interest of both the parties, and as such, remitted the matter

to the First Appellate Court, Aizawl, i.e., District Council Court,

Aizawl for deciding the appeal afresh.

10. On remand, the District Council Court, Aizawl disposed of

the appeal vide judgment and order dated 10 th July, 2003. As

per the said judgment, only the appellants herein were held to

be entitled to the property of deceased P.S. Dahrawka to the

exclusion of the widow and daughters of deceased Thanhnuna

(respondents herein). Being aggrieved thereby, the respondents

herein preferred RSA No. 9 of 2003 before the High Court. The

High Court vide judgment and order dated 9 th March, 2005

again remanded the case to the First Appellate Court, i.e.,

District Council Court, Aizawl to decide the matter afresh upon

hearing the parties. The District Council Court, Aizawl, on

remand, vide judgment and order dated 28 th February, 2006,

partly allowed the appeal in the following terms: 6

“1) That Respondent No. (d) namely Smt. Thansangi Huha shall inherit.

(a) The main house named “AHIMSA” and

(b) the Assam type building on the roadside above ‘AHIMSA’ adjacent in the south to RCC building on the roadside including the land they are standing on covered by LSC AZL No.54/72.

2. The Appellant No.3 namely Smt. Lalmuanpuii Huha shall inherit:­

(a) RCC building on the roadside adjacent in the north to the Assam type building stated at (I)

(b) above and

(b) Assam type building on the roadside adjacent in the north to the building stated at 2(a) above including the land they are standing on covered by LSC AZL No.54/72.”

11. Being aggrieved, the respondents herein preferred Second

Appeal being RSA No.12 of 2006 before the High Court and the

appellants herein preferred Cross­Objection No. 4 of 2006. By the

impugned judgment and order dated 7th November, 2007, the

High Court has allowed the said Second Appeal and dismissed

the Cross­Objection, thereby holding that it is only the

respondent Nos. 2 and 3 herein being legal heirs of Thanhnuna,

7 who were entitled to the rights in the property to the exclusion of

the appellants herein. Being aggrieved, the present appeals by

way of special leave.

12. We have heard Mr. Robin Ratnakar David, learned counsel

appearing on behalf of the appellants and Mr. Pragyan Pradeep

Sharma, learned counsel appearing on behalf of the respondents.

13. Mr. Robin Ratnakar David, learned counsel appearing on

behalf of the appellants, would submit that the High Court failed

to take into consideration that under the Mizo Customary Law it

is not only the rights which are inherited, but it is also the

responsibilities which are inherited. It is submitted that the

inheritance depends upon the responsibilities discharged by a

legal heir towards his/her parents in their old age. It is

submitted that the deceased Thanhnuna was residing separately

and it was only the appellant No.4­Thansangi Huha, the

youngest daughter of the deceased P.S. Dahrawka and

Kaithuami, who was taking care of her aged mother Kaithuami.

It is further submitted that the deceased P.S. Dahrawka and

Kaithuami had entered into an agreement dated 28 th January,

1927 and agreed that they would inherit each other’s property, 8 and as such, on the death of her husband P.S. Dahrawka, his

property was inherited by Kaithuami, and on her death, by their

daughters. It is submitted that since Thanhnuna had not looked

after his mother or the family members, he or his legal heirs were

not entitled to any rights in the property. As such, the High

Court had grossly erred in allowing the Second Appeal and

dismissing the Cross­Objection.

14. Shri Pragyan Pradeep Sharma, learned counsel appearing

on behalf of the respondents, on the contrary, would submit that

the High Court has rightly allowed the Second Appeal filed by the

respondents herein and dismissed the Cross­Objection filed by

the appellants herein. It is submitted that the property in

question was not covered by the agreement dated 28 th January,

1927 and is guided by the Mizo Customary Law. It is submitted

that the suit property being LSC No. AZL 56 of 1972 was

purchased only by P.S. Dahrawka and deceased Kaithuami had

no contribution in the purchase of the said property. It is

submitted that according to Mizo Customary Law, Thanhnuna

being the only son was the only legal heir of his late father P.S.

Dahrawka. It is submitted that Thansangi Huha (appellant No.4 9 herein) was divorced on 20th June, 1980. She however chose not

to stay with her mother for 17 long years. It is submitted that

she came to live with her mother Kaithuami only after the death

of Thanhnuna. It is therefore submitted that the present appeals

deserve to be dismissed.

15. We have considered the rival submissions. We find that the

District Council Court, Aizawl, on second remand, upon

considering the factual matrix, particularly Section 109(3) and

Section 109(10) of the Mizo Customary Law, observed that

though as per the Mizo Customary Law, it is the youngest son,

who would be entitled to inherit the property of his father; there

is an ample scope for distribution of the property in a fair and

reasonable manner. The District Council Court, Aizawl has found

that in case of a rich father, the property can be divided

proportionately amongst the sons.

16. The District Council Court further found that insofar as the

female members of the family, who are already married and

living in separate households are concerned, they are not

entitled to any share. The District Council Court further found

that under the Mizo Customary Law, inheritance also depends 10 upon the responsibilities carried out by the legal heir. It has

been found that till his death, Thanhnuna was looking after his

mother. However, after his death, Thansangi Huha (appellant

No.4 herein) came back to her original home to look after her

aged mother Kaithuami. It was found that the provision of Mizo

Customary Law relating to ‘divorced’ (Hringkir) in the matter of

inheritance would apply to her and her right to inheritance of

her father’s properties subsists by virtue of her being divorced

(Hringkir) and coming back to the original family for looking after

the mother. The District Council Court found that Thansangi

Huha looked after her mother till her death and also discharged

the responsibility of erecting ceremonial tombstone for her

mother. The District Council Court also found that after

exclusion of the daughters of deceased P.S. Dahrawka and

Kaithuami, who were married and living in separate households

and one daughter of Thanhnuna, i.e., Laldinpuii, who was also

married into a different clan, the contest was between Thansangi

Huha (appellant No.4 herein), the youngest daughter of deceased

P.S. Dahrawka and Kaithuami, who after divorce came back to

her house and was looking after her mother on one hand and

11 Lalmuanpuii (respondent No.3 herein), the other daughter of

deceased Thanhnuna.

17. The District Council Court found that since Thansangi

Huha (appellant No.4 herein) had discharged her responsibility

of looking after her mother till her death and was occupying the

main bed and reassuming her father’s clan title ‘Hahu’, her right

to inherit her father’s properties could not be defeated. It further

found that on the other hand Lalmuanpuii (respondent No.3

herein), though a female, was grand­daughter from the male

lineal descent of deceased P.S. Dahrawka. She was unmarried

and purely a ‘Hahu’ in the line of P.S. Dahrawka. It found that

her right to inheritance in the instant dispute was safeguarded

by the Customary Law in the absence of descendants having a

better right for the purpose. The District Council Court therefore

found that taking into consideration the principle of Mizo

Customary Law of Inheritance and the spirit of equity, which is

paramount to Mizo Customary Law, it was appropriate that the

property be divided between Thansangi Huha (appellant No.4

herein) and Lalmuanpuii (respondent No.3 herein).

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18. The Gauhati High Court, Aizawl Bench, speaking through

Madan B. Lokur, C.J. (as he then was), in the case of

Thansiami vs. Lalruatkima and ors.1 has also held that the

inheritance depends upon the question as to whether a person

supports the deceased in his old age or not. It has been held

that even if a natural heir does not support his parents, he

would not be entitled to inheritance. It has further been held

that even if there is a natural heir, a person who supports the

person until his death could inherit the properties of that

person.

19. We therefore find that the view taken by the District

Council Court, Aizawl, on second remand, is based on the

consideration of equity and the responsibility of a legal heir to

look after the elders in the family. The said view is also

supported by the judgment of the Gauhati High Court, Aizawl

Bench in the case of Thansiami vs. Lalruatkima and ors.

(supra). We respectfully agree with the said view.

20. We are therefore of the considered view that the High Court

was not justified in reversing the well­reasoned and equitable

1 (2012) 2 Gauhati Law Reports 309 13 judgment and order passed by the District Council Court dated

28th February, 2006 in C.A. No.12 of 1997.

21. In the result, we pass the following order:

A. The appeals are allowed.

B. The judgment and order of the Gauhati High Court,

Aizawl Bench dated 7th November, 2007 in RSA No.12 of

2006 and Cross Objection No.4 of 2006, is quashed and

set aside.

C. The judgment and order of the District Council Court,

Aizawl dated 28th February, 2006 in C.A. No.12 of 1997,

is affirmed.

22. Pending application(s), if any, shall stand disposed of.

There shall be no order as to costs.

…..….......................J. [L. NAGESWARA RAO]

…….........................J. [B.R. GAVAI] NEW DELHI;

APRIL 26, 2022.

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