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GAHC030002302024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/2/2024
Sh. Dominic Lalfakawma
S/o Mr. Chawngchuailova (L) and Mrs. Lalnunhlui,
R/o Zemabawk, AIzawl
VERSUS
Sh. K. Lalduhzuala and 4 Ors.
S/o Mr. Lalremthanga Khiangte (L) and Mrs. Lalmawizuali,
R/o Ramhlun Sports Complex/Kulikawn, Tlangnuam, Aizawl 2:Smt.
Lalmawizuali
3:Smt. K. Lalnunthari
4:Smt. K. Vanlalruati
5:Sh. K. Vanlalchhuang
Advocate for the Petitioner : Mr. Joseph Mangsuanhau
Advocate for the Respondent : Mr. T Lalnunsiama for R1-R5
Linked Case : I.A.(Civil)/93/2024
Sh. Dominic Lalfakawma
S/o Mr. Chawngchuailova (L) and Mrs. Lalnunhlui
R/o Zemabawk
Aizawl
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VERSUS
Sh. K. Lalduhzuala and 4 Ors.
S/o Mr. Lalremthanga Khiangte (L) and Mrs. Lalmawizuali
R/o Ramhlun Sports Complex
Aizawl
2:Smt. Lalmawizuali
W/o Mr. Lalremthanga Khiangte (L)
R/o Ramhlun Sports Complex
Aizawl
3:Smt. K. Lalnunthari
D/o Mr. Lalremthanga Khiangte (L) and Mrs. Lalmawizuali
R/o Ramhlun Sports Complex
Aizawl
4:Smt. K. Vanlalruati
D/o Mr. Lalremthanga Khiangte (L) and Mrs. Lalmawizuali
R/o Ramhlun Sports Complex
Aizawl
5:Mr. K. Vanlalchhuanga
S/o Mr. Lalremthanga Khiangte (L) and Mrs. Lalmawizuali
R/o Ramhlun Sports Complex
Aizawl
Advocate for the Petitioner : Mr. Joseph Mangsuanhau
Advocate for the Respondent : Mr. T Lalnunsiama for R1-R5
BEFORE
HON’BLE MRS. JUSTICE MARLI VANKUNG
Date of hearing :09.08.2024
Date of judgment :20.09.2024
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JUDGMENT & ORDER (CAV)
Heard Mr. Joseph Mangsuanhau, learned counsel for the appellant along with
Mr. T. Lalnunsiama, learned counsel for the respondents.
[2] This is a Regular Second Appeal filed against the Judgment & Order of the Court
of Additional District Judge-I, District Court, Aizawl in RFA No.24 of 2022 dated
31.07.2023, wherein, the learned appellate court dismissed the regular first appeal
against the issuance of the Heirship Certificate No.857 of 2021 dated 20.09.2021 to
the present respondent No.1, by the learned Sr. Civil Judge-II, Aizawl District.
[3] The case of the appellant in a nutshell, is that the deceased Vanlaltanpuii and
the appellant had executed a Gift Deed (Ram in pekna) dated 04.03.2021, wherein the
deceased Smt. Vanlaltanpuii had given him the portion of the landed property covered
under the LSC No.470 of 1992 for the Rs. 1,00,000/-, which he had given to the
deceased Vanlaltanpuii to look after herself and for purchase of her medicines.
However the Gift deed was not registered due to the Covid-19 Pandemic and the weak
health condition of the deceased Vanlaltanpuii. That on the death of the deceased
Smt. Vanlatanpuii on 27.08.2022, the appellant was aware that the impugned Heirship
certificate No.857 of 2021 was issued to respondent No.1 in respect of the LSC No.470
of 1992, but he did not raise any objection immediately, because he was given the
impression that his portion of land, as per the Gift deed, would be mutated in his
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name. The appellant had even assisted the respondent no.2 to mutate the LSC No.470
of 1992 in the name of respondent No.1, who was the grandson of the deceased Smt.
Vanlaltanpuii. Instead, the respondents had filed an FIR against him, on the allegation
that he had forged the signature of the deceased Smt. Vanlaltanpuii on the said
Sale/Gift Deed “Ram in pekna”. As a result, the appellant challenged the Heirship
Certificate No.857 of 2021, issued to Respondent No.1, before the Learned Addl.
District Court Aizawl by filling a regular first appeal under Section 17 (2)(a) of the
Mizoram Civil Court (Amendment) Act, 2007 read with Section 96 and Order 41 of
CPC in RFA No.24 of 2022. The main grounds of appeal was that, public notice was
not issued before the issuance of the impugned Heirship Certificate No.857 of 2021,
inspite of the fact that the respondent no.1 and had knowledge of the Sale/gift deed,
executed between the deceased Smt. Vanlaltanpuii and the appellant and thus the
impugned Heirship certificate was obtained through fraud.That the learned Senior Civil
Judge was hastened to issue the impugned Heirship Certificate in favour of
Respondent No.1, based on the no objection certificate executed by the wife of the
late son of the deceased Smt. Vanlaltanpuii and the other surviving grandchildren of
the deceased, respondents No.3, No.4 and No. 5 respectively, respectively. The
appellant contended that he was an interested party in the issuance of the Heirship
certificate since he was also a related to the deceased Smt. Vanlaltanpuii being her
grandson/’tupa’. He had shown how he could be termed a grandson/’tupa’ by giving
the details of their family - tree.
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[4] The contention of the respondents was that the appellant was not a close
relative of the deceased Vanlaltanpuii, while the respondent no.1 was her grandson.
That the deceased had lived at Ramhlun Sports Complex with the respondents, who
are the wife and children of her son (late) and the deceased Vanlaltanpuii, sometimes
stayed at Zemabawk where she had lived with her husband (late). That the
respondents looked after the deceased Vanlaltanpuii and paid all her hospital bills.
That they met the appellant for the first time, only after the death of Pi Vanlaltanpuii.
That under the relevant laws in Mizoram, the appellant has no locus standi to inherit
the properties of the deceased Vanlaltanpuii and that the signature of the deceased
Vanlaltanpuii on the alleged sale/gift deed was very doubtful which led them to file
the FIR against the appellant for forgery and cheating.
[5] The learned First Appellate Court after hearing both the parties had dismissed
the appeal by observing that,
“The deceased Vanlaltanpui died interstate, and the alleged Deed in favour of
the appellant is admittedly unregistered.
From the above findings, it could be clearly seen that both parties have started
dealing with their issues between themselves not long after the death of
Mrs.Vanlaltanpui on 27.08.2021, and that the appellant was well aware of the
issuance of the impugned Heirship Certificate No.857 of 2021 and never disputed the
same until his demand for partition of his claimed portion of property was denied by
the respondents followed by filing of FIR against him. What is seen from the scenario
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is that the appellant would never have preferred the instant appeal had his claimed
portion be partitioned was excepted. It is true that rights of every citizen is protected
by law, however, none should take advantage of the protection given by the- law and
abuse it for harassing others in any way to gain unfair benefits for themselves or to
seek vengeance against another, and it should be taken note that the court of law is
not to be set in motion at the whims of one as it would jeopardize the sanctity of the
court. The appellant is also well aware of the fact that the deceased Vanlaltanpui died
intestate and his alleged Deed is unregistered and it has no legal sanctity in the eye of
law as section 17 of the Registration Act requires compulsory registration of a Gift
Deed in respect of immoveable property(s) and apart from which he has no other tool
for disputing or claiming the landed property of the deceased Vanlaltanpui, and that
he stand no chance in a court of law no matter how his witnesses testified in his
favour even if the case is tried de novo, hence , the appellant is in no way be
characterized as prejudiced by the impugned Heirship Certificate . Therefore, despite
the fact that the trial court committed procedural error in issuing the impugned
Heirship Certificate, it is the considered opinion of the court that the appellant has no
locus standi to file the instant appeal against the impugned Heirship Certificate No.
857 of 2021 in respect of a landed property coveted by LSC No. 470 of 1992 left
behind by Mrs.Vanlatanpuii issued to her grandson respondent No.1 by the court of
learned Senior Civil Judge-II, Aizawl District, Aizawl. Hence , the instant appeal is not
allowed and it is dismissed accordingly.”
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Aggrieved, the appellant had filed the present Regular Second Appeal.
[6] After hearing both the parties, the following substantial questions of law were
framed :
i) Whether the trial court had erred in fact and in law by issuing the
impugned Heirship Certificate to the respondent No.1 the very same day
without calling for claims from any interested parties and whether the
learned Appellate Court had erred in not setting aside the said Heirship
Certificate issued by the learned trial court.
ii) Whether the learned Appellate Court in passing the impugned
Judgment & Order dated 31.07.2023 had acted beyond its jurisdiction
under Section 151 CPC, in coming to its finding without giving an
opportunity to the parties to adduce evidence in the court.
[7] Mr. Joseph Mangsuanhau, learned counsel for the appellant, submits that the
appellant had filed the Regular First Appeal before the Court of Additional District
Judge, under Section 17 (2)(a) of the Mizoram Civil Court (Amendment) Act, 2007
read with Section 96 and Order 41 of CPC. The learned counsel submitted that
appellant had not filed his appeal against the impugned Heirship Certificate
immediately, because the appellant thought that public notice was issued by the court
of Sr. Civil Judge before the issuance of the impugned Heirship CertificateNo.857 of
2021 and therefore, he had even assisted the respondents during the mutation of the
property in the name of respondent No.1. The learned counsel submitted that
issuance of notice is mandatory as provided under Section 373 of The Indian
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Succession Act, 1925 and therefore, since this mandatory provision was not followed,
the Heirship Certificate is liable to be set aside.
[8] The learned counsel for the appellant further submitted that though the appeal
before the learned First Appellate Court was made under section 151 CPC for the court
to exercise its inherent power, so that the appellant would be given the chance to
adduce evidence, this chance to adduce his evidence was not given by the learned
First Appellate Court.The learned counsel submitted that the appellant and the
deceased Vanlaltanpuii, had executed a Gift Deed (Ram in pekna) dated 04.03.2021,
wherein the deceased had given him the portion of the landed property covered under
the LSC No.470 of 1992 for the Rs. 1,00,000/- which he had given to deceased
Vanlaltanpuii to look after herself and for purchase of her medicines. The learned
counsel submits that this “Ram in pekna”/Gift Deed” was duly witnessed by 2 (two)
witnesses and he/the counsel had drafted the said Gift Deed which was signed by the
deceased with the help of the instant appellant. However the Gift Deed was not
registered since Pi Vanlatanpuii was a frail and weak and also because of the Lock
Down imposed by the State Government due to Covid 19 Pandemic. However, the
learned court had dismissed the appeal without considering any of the points raised by
the appellant.
[9] The learned counsel thus submits that the instant appellant being the owner of
a portion of the said LSC No.470 of 1992, should have been given the opportunity of
being heard by the First Appellate Court. He submitted that the matter may be
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remanded back before the Sr. Civil Judge-II, so that the appellant may be given an
opportunity to adduce his evidence in the interest of justice and that, in not giving the
opportunity to adduce evidence, the appellant would be highly prejudiced in the case.
The learned counsel for the appellant relied on the decision of the Apex Court in
Govindaraju Vs. Mariamman, reported in Appl (Civil) 2292 of 1999.
[10] Mr. T. Lalnunsiama, learned counsel for the respondents on the other
hand submits that the impugned Heirship Certificate was issued under the Mizo
Marriage, Divorce and Inheritance of Property Act, 2014, where there is no mention
that public notice should be issued before consideration of an Heirship certificate. He
also submitted the Indian Succession Act would not be applicable in the present case
and therefore issue of public notice is not mandatory.
[11] The learned counsel for the respondents further submitted that the Pi
Vanlaltanpuii had died interstate, but was survived by her grand children and her
daughter-in-law since her only son had passed away. He further submits that the
appellant has no locus standi and has nothing to say in the matter since he is not a
direct descendant of the deceased Pi Vanlaltanpuii but a distant relative. The learned
rd
counsel submitted that the appellant and the father of the respondent, must be 3
cousins. He further submitted that the appellant cannot claim to be the legal heir of
the deceased as per chapter VIII of the Mizo Marriage, Divorce and Inheritance of
Property Act, 2014.
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[12] The learned counsel for the respondents further submitted that even
though the appellant is claiming that there is a Gift deed/Sale Deed (Ram in pekna),
however, this was not a registered deed and as rightly held by the learned First
Appellate Court, it is compulsory for a Gift Deed to be registered to be legally valid. He
further submitted that even if there was a Gift deed/Sale deed executed between the
deceased and the appellant, the appellant should have approached the Civil Court
claiming the portion of the landed property said to be given to him through the Give
Deed/Sale Deed (Ram in pekna) from the legal heirs of the deceased or, if the
appellant felt that he was not given a chance to adduce evidence to prove the
existence of the give deed/sale deed, the appellant should have approached the
learned First Appellate Court under Order 41 Rule 27 CPC, wherein he could have a
chance to adduce evidence to prove his case. The learned counsel also submitted that
the respondents had filed an FIR for forgery and cheating against the appellate, when
they saw the alleged Gift Deed, wherein, it was obvious that the signature on the
alleged Gift deed did not belong to the deceased Pi Vanlaltanpuii.
[13] The learned counsel thus submitted that there are no grounds to set
aside the judgment of the learned First Appellate Court, who has rightly dismissed the
Regular First Appeal, on the grounds that the appellant had no locus standi in the case
and had rightly observed that the alleged gift deed was not a registered deed and
therefore not legally valid.
The learned counsel has relied on the Judgment of the Apex Court in State
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Bank of India & Ors.vs. S.N. Goyal reported in (2008) 8 SCC 92 para 13.
[14] I have heard and considered the submissions made by the learned
counsels for both the parties and have also perused the documents on record.
This court, after giving due consideration to the facts and circumstances of the
case finds that the impugned the said Heirship Certificate No.857 of 2021 was issued
by the learned trial court under section 30(3) of Act, the Mizo Marriage, Divorce and
Inheritance of Property Act, 2014. On perusal of the Act, it is noted that there is no
specific mention under the said Act, that public notice is to be issued when an
application is made for issuance of Heirship Certificate, but it is a general practice to
issue public notices, for the court to be satisfied that an opportunity is given to all
those persons, who can claim to be the legal heirs of the deceased, as mentioned at
Chapter–VIII of the Mizo Marriage, Divorce and Inheritance of Property 2014.
[15] In the present case, it is an undisputed fact that the impugned Hership
Certificate was issued by the learned Sr. Civil Judge without the issuance of public
notice, wherein, that the learned first appellate court had observed that the appellant
belatedly raised objection after the relationship between the parties had gone sour
when appellant demanded the partition of his claimed portion by virtue of his give
Deed (Ram In pekna), and also due to the filing of the FIR against the appellant by
the respondent No.1. It is seen that though the appellant is related to the deceased Pi
Vanlaltanpuii, however it is also an admitted fact that the appellant is a distant
relative. The manner as to how the appellant is related to the deceased Vanlaltanpuii
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is seen in the ‘Family Tree’ which was produced in the court. From the perusal of the
‘Family Tree’, this court finds that the appellant cannot be termed a legal heir of the
deceased under Chapter –VIII of the Mizo Marriage, Divorce and Inheritance of
Property 2014. It is also noted that the application for issuance of Heirship certificate,
in respect of the property of the deceased Vanlaltanpuii, who died interstate, was
made by the her grandson, since her only son had passed away, and the application
was accompanied by a no objection certificate, executed in favour of respondent no.1,
by the daughter-in-law of the deceased and the other grandchildren of the deceased,
who are arrayed as respondents No.2, No.3, No.4 and No.5 respectively. Thus,
considering the facts and circumstances of the present case, this court finds that the
learned court of Sr. Civil Judge, Aizawl had not erred in issuing the Heirship Certificate
in favour of Respondent No.1, without notice. Accordingly, the first substantial
question of law is decided in favour of the respondents, on finding no grounds to set
aside or quash the Heirship Certificate No.857 of 2021, since it is clear that the
appellant cannot be considered a legal heir of the deceased Vanlatanpuii, in terms of
Chapter VIII of the Mizo Marriage, Divorce and Inheritance of Property Act,2014.
[16] It is however seen that the learned First Appellate court, on finding that
the alleged Deed was unregistered, held that the Gift Deed had no sanctity in the eye
of law, as section 17 of the Registration Act requires compulsory registration of a gift
deed in respect of immoveable properties. The learned First Appellate Court found
that ‘apart from the alleged gift deed, he has no tool for claiming the landed property
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of the deceased and thus will have no chance in the court of law, no matter how the
witnesses testify in his favour even if the case were to be remanded for de novo trial.’
Having given my anxious consideration to the above findings, this court is of the
view that though it is an admitted fact that the alleged Gift Deed was not registered,
however, the appellant had offered some explanation for the none registration of the
alleged Gift Deed. This court is therefore of the considered opinion that the appellant
deserves to be given a chance, of being heard, on the said issue in the court of law.
The principle of Audi Alteram Partem should be followed in all cases, no matter how
weak the case appear, prima facie.
Thus, this court finds that while upholding the findings of the learned Court of
Additional District Judge-I, District Court, Aizawl in RFA No.24 of 2022 dated
31.07.2023, that the appellant has no locus standi to file the appeal against the
Heirship Certificate No/857 of 2021, however, since section 151 provides that inherent
power can be exercised to secure the ends of justice, under the given facts and
circumstances of the case, it would be in the interest of justice to hold that the
appellant is not barred from approaching the appropriate authority under the
appropriate sections of law, and be given an opportunity of being heard, on the
validity of the alleged Gift Deed and claim relief, if any, from the legal heir of the
deceased Pi Vanlaltanpuii, if so advised.
[17] In view of the aforesaid reasoning, the instant Regular Second Appeal
stands dismissed and disposed of.
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JUDGE
Comparing Assistant