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GAUHATI HIGH COURT
S.Talapatra, J.
Lalhuzauva -Appellant
Versus
Ngurkhumi & Ors. -Resopndent
RFA No. 11 of 2012
Decided On : 31-08-2012
Code of Civil Procedure, 1908 – Order 7 Rule 10 – Mizo District (Inheritance of Property) Act, 1956 – Sections 7, 8, 11, 12 – Indian Succession Act, 1925 – Constitution of India, 1950 – Articles 50, 371 – Mizoram Civil Courts Act, 2005 – Sections 10, 31 – Execution Of The ‘Wills’ – Probate – Proceeding was initiated by the appellant for grant of probate of the ‘Will’ as executed by Rohnuni, W/o Lalmangteka Sailo (1), Sihphir, Vengthar, being Probate Case No. 1/2012 in the court of the Senior Civil Judge, Aizawl, Mizoram. – Held, Impugned judgment and order is set aside and the Probate Case is remitted back for re-adjudication. – Since, this Court has categorically held that for purpose of grant of the letters of administration the Indian Succession Act, 1925 will be applicable in the State of Mizoram, the Senior Civil Judge, Aizawl shall return the plaint to the appellant in exercise of powers as provided under Order VII, Rule 10 of the CPC with a direction to the plaintiff (the appellant herein) to file the same before the Court of the District Judge, Aizawl for adjudication within a time frame as would be stipulated. – The plaintiff may make necessary amendments in the pleadings, if so required in view of the observations made by this Court. It is needless to say that the adjudication on grant of the letters of administration would be carried out as per the provisions of the Indian Succession Act, 1925 and the Code of Civil Procedure, wherever the provisions of that Code are applicable. – Appeal Allowed
2. It appears from the pleadings that the proceeding was initiated in the Court of the District Judge, being Probate Case No. 2/2011, which was subsequently transferred to the court of the Addl. District Judge for trial and disposal. The respondents herein, by filing the written statement in the said probate case, stated that the testator ‘was from the Mizo tribe and the plaintiff and the defendants are also governed by the Mizo Hnam Dan and execution of the ‘Wills’ and probate of the ‘Wills’ are only governed by the Mizo District (Inheritance of Property) Act, 1956.
3. As per Section 11 of the Mizo District (Inheritance of Property) Act, 1956, the Subordinate District Council Courts have jurisdiction to grant or revoke probate in all cases. The provisions of Sections 12, 13, 14, 15, 16, 17 and 18 of the said Act provide about how the Subordinate District Council Courts shall probate the Will. Section 11 of the Mizo District (Inheritance of Property) Act, 1956 is gainfully reproduced hereunder:
“11. Jurisdiction of Subordinate District Council Court in granting and revoking probates, etc.- The Subordinate District Council Court shall have jurisdiction in granting and revoking probates’ in all cases within its territorial jurisdiction.”
It has been further laid in the Pleadings that after the Mizoram Civil Courts Act, 2005 came into force, by operation of Section 10 of the said Act, the Court of the Court of the Addl. District Magistrate (Judicial) the District Council) Court and Sub-District Council Courts and Addl. Sub-District Council Courts have been converted to the Civil Courts. For reference, Section 10 of the Mizoram Civil Courts Act, 2005 is extracted hereunder:
“10. Existing courts, their location and seal to be deemed to be established fixed and determined under this Act.
(1) The courts of Additional District Magistrate(Judicial) existing immediately prior to the appointed date shall, with effect from the appointed date, be converted to be Courts of District Judges established under this Act until they are reconstituted in accordance with this Act.
(2) The District Council Court existing immediately prior to the appointed date shall, with effect from the appointed date be deemed to be court of Senior Civil Judges under this Act until they are constituted in accordance with this Act.
(3) Sub-District Council Courts and Additional Sub-District Council Courts at Aizawl, Kolasib, Champhai and Lunglei existing immediately prior to the appointed date shall with effect from the appointed date deemed to be court of Junior Civil Judge under this Act until they are constituted in accordance with this Act.
(4) The seal in use, in a civil court deemed to be established under sub-sections (10) to (4), immediately prior to the appointed date may continue to be used until an order is made by the High Court under Section 9.”
4. On the face of such opposition from the respondents, the said Addl. District Judge, Aizawl heard the parties on maintainability of the proceeding and by the order dated 07.10.2011, dismissed the Probate Case No. 2/2011, observing that:
“The Mizoram Civil Court Act, 2005 was notified in the Mizoram Gazette Extra Ordinary on 24.10.2005 and as per Section 2(a) the appointed date was 26.4.2006 vide Mizoram Gazette dt. 28.4.2006.
As rightly pointed out by Pu Sam Joseph the Id. Counsel for the opposite party the Junior Civil Judge is the right court to probate the Will and this court is not having jurisdiction to entertain the application in view of the provision of Section 10(3) of the Mizoram Civil Court Act.
Hence, the application is dismissed and the applicant is at liberty to approach the proper forum, if so, advised.”
5. Thereafter, the appellant filed a pe
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