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IN THE HIGH COURT OF GAUHATI, AIZAWL BENCH
Michael Zothankhuma, J.
Lalzarliana S/o Vanlalchhuangi – Appellant
Versus
Lalfakawmi D/o Vanlalchhuangi – Respondent
RSA No. 5 of 2015
Decided On : 09-02-2016
Limitation Act - Section 5 - Divorce and Inheritance of Property Act, 2014 - Heirship Certificate - Mizo Customary Law - Appellant by way of second appeal has challenged legality of order passed by Court of Additional District Judge-I, in RFA No. arising out of HC No. - Appellants counsel submits that died - Application was made for issuance of Heirship Certificate in favour of appellant in Court of Subordinate District Council Court, in respect of LSC No. - Magistrate 1st Class Subordinate District Council Court issued Heirship Certificate - Appellants counsel submits that respondent, who is married sister of appellant thereafter filed an appeal in Court of Additional District Judge-I challenging Heirship Certificate No. issued in favour of appellant - Appeal was registered as RFA No. - Main challenge made in RFA No. 24/2014 against Heirship Certificate No. was that respondent had not been given reasonable opportunity of being heard before issuance of Heirship Certificate - Court of Additional District Judge-I, Aizawl thereafter passed order in RFA No. it upheld HC No. - It also distributed a portion of property covered by LSC No. - Property was distributed not only to respondent but also to appellants sister who was not a party to proceedings in RFA No. – Held, Respondent could not have given a portion of ancestral property to appellants sisters - Case appellant is youngest surviving male son - No right of inheritance accrues to a married woman in presence of a brother unless it is by way of a Will - Question of granting a portion of properties covered by LSC No. to impugned Order does not arise for simple reason that was not a party to proceedings in RFA No. - No right to inherit property accrues to her as per Mizo Customary Law and no claim has been made by her or on her behalf for said property - First Appellate Court has also not given any basis under any law for which respondent and could be given a portion of property covered by LSC uphold HC. No. and direct that all properties covered by LSC No. shall be property of appellant - No right of title or interest can devolve upon respondent - Consequently, impugned order passed by Additional District Judge-I, in RFA No. is upheld to extent where it upholds HC.No. - Other directions and observations given in impugned order in RFA No. are hereby set aside - Above being stated, appellant should also consider - Whether he would like to give a place of residence to respondent and till time they are owners of their own houses - Completely left to discretion of appellant as respondent and are his sisters - It is also to be noted that Judgment and order passed today does not take into account Mizo Marriage - Divorce and Inheritance of Property Act, 2014 as subject matter in issue pertains to Mizo Customary Law only – Ordered Accordingly
Michael Zothankhuma, J.
1. Heard Mr. F. Lalengliana, learned counsel for the appellant as well as Mr. B. Lalramenga, learned counsel for the respondent.
2. The appellant by way of the second appeal has challenged the legality of the order dated 29.05.2015 passed by the Court of the Additional District Judge-I, Aizawl in RFA No. 24/2014 arising out of HC No. 54/1994.
3. The appellant's counsel submits that land covered by LSC No. 562/1977 was originally owned by one Mrs. Vanlalchhuangi. Mrs. Vanlalchhuangi had three daughters and two sons, who are as follows:
(1) Lalrinngheti born on 1975
(2) Lalfakawmi (respondent) born on 1976
(3) Lalnuntluangi born on 1979
(4) Lalrindika born on 1981(died within a year) and
(5) Lalzarliana (appellant) born on 1984.
4. The appellant's counsel submits that Mrs. Vanlalchhuangi died on 18.7.1982. Thereafter, an application was made by Lalrinngheti for issuance of Heirship Certificate in favour of the appellant in the Court of the Subordinate District Council Court, Aizawl in respect of the LSC No. 562/1977. The Magistrate 1st Class Subordinate District Council Court, Aizawl issued Heirship Certificate No. 54/1994 dated 14.2.1994 as follows:
"Subordinate District Council Court: Aizawl
Heirship Certificate No. 54 of 1994
Whereas Vanlalchhuangi, Sub-Inspector of Police died on 18th July, 1992 her son Lalzarliana 10 yrs is hereby declared as legal heir of the deceased Vanlalchhuangi in respect of LSC No. 562 of 1977 only.
And whereas Lalzarliana is a minor his sister Lalrinngheti is also appointed as legal guardian of the minor heir Lalzarliana.
Sd/- K.L. Liana,
Magistrate 1st Class,
Sub-District Council Court,
Aizawl.
Memo No. SDCC/HC-54/94/308 Dated Aizawl, the 14th Feb, 1994."
5. The appellant's counsel submits that the respondent, who is the married sister of the appellant thereafter filed an appeal in the Court of the Additional District Judge-I on 3.9.2014 challenging the Heirship Certificate No. 54/1994 issued in favour of the appellant. The appeal was registered as RFA No. 24/2014. The main challenge made in RFA No. 24/2014 against Heirship Certificate No. 54/1994 (HC No. 54/1994 in short) was that the respondent had not been given reasonable opportunity of being heard before issuance of the Heirship Certificate.
6. The Court of the Additional District Judge-I, Aizawl thereafter passed order dated 29.5.2015 in RFA No. 24/2014, wherein it upheld HC No. 54/1994. However, it also distributed a portion of the property covered by the LSC No. 562/1977. The property was distributed not only to the respondent but also to the appellant's sister Lalnuntluangi who was not a party to the proceedings in RFA No. 24/2014.
7. The appellant being aggrieved with the order dated 29.5.2015 passed by the Additional District Judge-I, Aizawl in RFA No. 24/2014 has preferred this regular second appeal for setting aside the impugned order dated 29.5.2015.
8. The appellant's counsel submits that the impugned order dated 29.5.2015 is liable to be set aside on the ground that the appeal was decided by the First Appellate Court without the respondent filing any condonation of delay application along with the RFA No. 24/2014. The appellant's counsel submits that the respondent having filed RFA No. 24/2014 beyond the limitation period of 30 days, the same was liable to be dismissed on the ground of Limitation.
9. The learned counsel for the appellant also submits that as per Mizo Customary Law, inheritance of property can devolve only through the male line and no woman can inherit property while there is a son to inherit a property.
10. The appellant's counsel also submits that the learned First Appellate Court erred in distributing the property covered by LSC No. 562/1977 to the respondent and to his sister Lalnuntluangi who was not a party to the RFA No. 24/2014, while at the same time upholding the Heirship Certificate No. 54/1994 issued by the Sub-District Council Court, Aizawl.
11. The appellant's counsel thus submits tha
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