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IN THE HIGH COURT OF GAUHATI, AIZAWAL BENCH
Michael Zothankhuma, J.
Smt. Lalremmawii – Petitioner
Versus
Sh. Vanlalngheta – Respondent
W.P. (C) Nos. 79 and 80 of 2012
Decided On : 12-02-2016
Constitution of India, 1950 - 226/227 - Heirship Certificate - Death Rohmingliana gifted the land covered - Family agreement - Case is that one was owner of land covered by LSC No. AZL - He had many children for deciding issue at hand, this Court will reflect only 4 of children as they are necessary for adjudication of present case - However, before his death gifted land covered by LSC No. AZL to his son – His son wrote a Will which is to effect that major portion of land and building in LSC No. AZL would be inherited by respondent, while portion occupied by along side of road and land below main house would be inherited - Portion now occupied by along road side and all lands below main house will belong and no one should disturb her - She will look after it in consultation - My will is drafted by me with great care - This is my last Will and it shall supersede my earlier Wills - This Will is executed by me in presence of below mentioned witnesses and I put my signature on it - Above mentioned Will was executed in our presence and he signed it before my eyes – Held, Court cannot lose sight of fact that issuance of Heirship Certificate No. seems to has been done by respondent by playing a fraud on Court, as it has concealed existence of family agreement - This Court cannot sit idle while a fraud is allegedly being perpetrated and respondent enjoys fruits of gain acquired by fraud - There is no doubt that an alternative remedy is available to petitioners - Court has discretion to entertain petition even if an alternative remedy is available - Stated earlier, issuance of Heirship Certificate No was allegedly perpetrated by playing a fraud on Court - Case of Others reported in SCC Supreme Court has held that right in law exist only and only when it has a lawful origin - Supreme Court has held that if an order at initial stage is then all further proceedings consequent thereto will be non-est and will have to be necessarily set aside - Case Heirship Certificate No. was issued by Sub-ordinate District Council Court, Aizawl on basis of an unsigned order - Court holds that Heirship Certificate could not have been issued on basis of an unsigned order - Court is of opinion that Heirship Certificate No. impugned judgment and order passed in Review Petition Nos. cannot withstand scrutiny of law - Same are accordingly set aside and quashed - Parties are however given liberty to approach appropriate Court for declaration of their rights as allowed by law and by impleading necessary parties – Petition is allowed
Michael Zothankhuma, J.
1. Heard Mr. A.R. Malhotra, learned counsel appearing for the petitioners in W.P. (C) No. 79 of 2012 and W.P. (C) No. 80 of 2012. Also heard Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. H. Lalmalsawmi, learned counsel appearing for the respondent in W.P. (C) No. 79 of 2012 and W.P. (C) No. 80 of 2012.
2. Both the petitions are being disposed of by this common Judgment and Order.
3. The petitioners in W.P. (C) No. 79 of 2012 and W.P. (C) No. 80 of 2012 are sisters of the respondent in both the above cases.
4. The brief facts of the case is that one Shri. Rohmingliana was the owner of land covered by LSC No. AZL 116/1967. Rohmingliana had many children. However, for deciding the issue at hand, this Court will reflect only 4 of the children of Rohmingliana as they are necessary for adjudication of the present case. The four children are Hrangzika, Lalremmawii (petitioner in W.P. (C) No. 79/2012), Laldingliani (petitioner in W.P. (C) No. 80/2012) and Vanlalngheta (respondent in W.P. (C) No. 79/2012 and W.P. (C) No. 80/ 2012).
5. Shri Rohmingliana died on 24.02.1993. However, before his death Rohmingliana gifted the land covered by LSC No. AZL 116/1967 to his son Hrangzika. Hrangzika wrote a Will dated 29.06.2004 which is to effect that the major portion of the land and building in LSC No. AZL 116/1967 would be inherited by the respondent, while the portion occupied by Lalremmawii (petitioner in W.P. (C) No. 79/2012) along the side of the road and the land below the main house would be inherited by Lalremmawii. The Will dated 29.06.2004 is reproduced below:
"I, Hrangzika, S/o Rova (L), Zarkawt am not keeping good health and in case I die, I put the LSC No. AZL 116 of 1967, which is in my name along with the building standing within it and being constructed therein, in the hands of my younger brother Vanlalngheta. He will look after the land and building as he deems fit and has the authority for the same. In case I die, our main house should be built as soon as possible.
The portion now occupied by Lalremmawii along the road side and all lands below the main house will belong to Lalremmawii and no one should disturb her. In case I die my motor Bolero MZ 05-0047 will be looked after Lalremmawii. She will look after it in consultation with Vanlalngheta.
My will is drafted by me with great care. This is my last Will and it shall supersede my earlier Wills.
This Will is executed by me on 29/6/2004 in the presence of the below mentioned witnesses and I put my signature on it.
The above mentioned Will was executed by Hrangzika in our presence and he signed it before my eyes.
Sd-29/06/04
(HRANGZIKA)"
6. Hrangzika expired on 16.07.2004. On 28.07.2004, the children of Rohmingliana which included the petitioners, the respondent and another sister Lalrammawii made a family agreement dated 28.07.2004 on the manner in which the land and building covered by LSC No. AZL 116/1967 would be distributed between the parties herein. The said family agreement dated 28.07.2004 was made by the parties herein with the full knowledge that a Will dated 29.06.2004 had been executed by their deceased brother Hrangzika.
The agreement dated 28.07.2004 is reproduced below:
"AGREEMENT
We, Vanlalngheta, Laldingliani, Lalrammawii and Lalremmawii children of Rova(L), Zarkawt have today i.e. 28th July, 2004 made an agreement regarding the properties left behind by our mother and father.
1. The LSC No. AZL 116 of 1967 is in the name of our brother Hrangzika and after his death the ongoing construction within this land shall continue. The road level floor shall be constructed as a shop and shall be divided into two equal sizes. The shop on the southern side will belong to Laldingliani and the shop on the north side will belong to Vanlalngheta.
2. The floor just above the shop will belong to Laldingliani.
3. The floors above the floor belonging to Laldingliani will all belong to Vanlalngheta.
4. The floor below the road level shop wil
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