Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.71597160 OF 2008
SMT. KAITHUAMI [L] THROUGH L.RS. ...APPELLANT(S)
VERSUS
SMT. RALLIANI AND OTHERS ...RESPONDENT(S)
JUDGMENT
B.R. GAVAI, J.
Application for substitution to bring on record legal
1.
representatives of the deceased appellant No.3Thanzami is
allowed, subject to all just exceptions.
2. The present appeals challenge the common judgment and
th
order of the Gauhati High Court, Aizawl Bench, dated 7
November, 2007, passed in RSA No.12 of 2006 with Cross
Objection No.4 of 2006, vide which, the learned single judge of
the High Court has allowed the said Second Appeal filed by the
respondents herein and dismissed the crossobjection preferred
by the appellants herein.
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For appreciating the controversy in question, it will be
3.
appropriate to reproduce the family chart, which is as under:
一C 一 Dr.LalrinlianaSallo(p-1D)
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P.S. Dahrawka and Kaithuami, through whom the parties
4.
herein are claiming inheritance, were married to each other on
th
28 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
th
1945. P.S. Dahrawka died on 5 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
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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
th
certificate could be decided, Thanhnuna died on 28 April,
1996. After his death, his mother Kaithuami submitted an
st
objection on 31 May, 1996. The Subordinate District Council
Court, Aizawl dismissed the application of Thanhnuna for
th
heirship certificate on 11 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
rd
3 July, 1996.
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In the meantime, mother Kaithuami also filed an
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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
th
judgment and order dated 7 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.
The respondents herein filed an appeal being C.A. No. 12
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of 1997 before the District Council Court, Aizawl. The
th
Appellate Court vide order dated 9 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
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No.3 of 2001. The High Court vide judgment and order dated
th
13 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
th
the appeal vide judgment and order dated 10 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
th
High Court vide judgment and order dated 9 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
th
remand, vide judgment and order dated 28 February, 2006,
partly allowed the appeal in the following terms:
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“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
th
impugned judgment and order dated 7 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,
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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
th
Kaithuami had entered into an agreement dated 28 January,
1927 and agreed that they would inherit each other’s property,
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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
th
question was not covered by the agreement dated 28 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
th
herein) was divorced on 20 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
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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
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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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The Gauhati High Court, Aizawl Bench, speaking through
18.
Madan B. Lokur, C.J. (as he then was), in the case of
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has also held that the
Thansiami vs. Lalruatkima and ors.
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
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judgment and order passed by the District Council Court dated
th
28 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,
th
Aizawl Bench dated 7 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,
th
Aizawl dated 28 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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