Point of Law: Onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the 'will' in the manner contemplated by law.

JUDGMENT :

Heard Mr. Lalpianfela Chawngthu, learned counsel for the appellant and Mr. F. Lalengliana, learned counsel for the respondent.

2. This is an appeal against the Judgment & Order dt.14.11.2019 passed by the Sr. Civil Judge Champhai, in Probate Case No.2 of 2018 wherein the ‘will’ dated 24.05.2017 executed by Lalzawnchhuaha (late) was probated by the Learned Civil Judge

3. Brief facts of the case is that Mr. Lalzawnchhuaha (late) was the owner of the house bearing H/1-48 along with adjacent land located at Vengthar, Khawzawl. During his lifetime he had executed a ‘will’ dated 9/4/2017 in the presence of three witnesses namely Lalchhantluanga, Lalzawnchhuaha, and FK Lalsangluaia. In the’ ‘will’ his son from his first marriage, Lalrinpuia was bequeathed the house at Vengthar, Khawzawl. However, as long as the present house stands, his two daughters namely Lalbiaknungi and Lalremruati, from his present wife, were to collect the rent charges. He also apportioned the value of his properties to his children namely Lalrinpuia, Rokhuma, Lalbiaknungi and Lalremruati at 25% each.

4. The petitioner/respondents case is that on 21.05.2017, the Mr. Lalzawnchhuaha (late), had informed his first children to gather around as he wanted to let them know that he had an intention to change the previous ‘will’ dated 09.04.2017. On that day only Lalniliani, Lalrinmawii, Sanghmingthangi and Parliani were present while his other children from his first marriage were absent. He straight forwardly informed them that he has an intention to withdraw his previous ‘will’ dt.9.4.2017 and that he intended to make a fresh and new ‘will’. His children who were present on 21.5.2017 were not willing to accept that their father had intention to make new and fresh ‘will’. However, Mr. Lalzawnchhuaha along with his wife Zokhumi and a Ngaihthangi went to the Champhai District Court, Zote on 24.05.2017 and approached an Advocate Lalchhuansanga Sailo for making a fresh ‘will’. On the said ‘will’ Zokhumi, the petitioner/respondent, W/o Lalzawnchhuaha (L) and Ngaihthangi, W/o Sangkhanngina put their respective signature as witnesses in the presence of the said Advocate and the testator.

5. Mr. Lalzawnchhuaha, then died on 19/02/2018 due to heart attack and his wife Smt. Zokhumi petitioner/instant respondent, filed an application under Chapter VII of the Mizo Marriage, Divorce & Inheritance of Property Act, 2014 for grant of probate of ‘will’ Dt. 24.05.2017 executed by Mr. Lalzawnchhuaha. After filing the application, the persons whose names appeared in the first ‘will’ were summoned and the respondent/instant appellant Lalrinpuia filed his written objection.

6. The respondent/instant appellant objected to the ‘will’ dated 24.05.2017 stating that there is no strict proof that the petitioner is the legitimate wife of Mr. Lalzawnchhuaha and that there was no marriage certificate in respect of the marriage between the petitioner/instant respondent and is not eligible to file the present case before this Court. He also stated that the ‘will’ executed on 09.04.2017 is the last ‘will’ executed by their father Lalzawnchhuaha and the witnesses put their signatures to the said ‘will’ in the presence of witnesses and children of the deceased Lalzawnchhuaha. The respondent/instant appellant also stated that the deceased Lalzawnchhuaha had not informed all his first children that he had an intention to change the previous ‘will’ dt.09.04.2017. The said ‘will’ dt.24.05.2017 was executed without the knowledge of the first children of the deceased Lalzawnchhuaha. The respondent/instant appellant further stated that the ‘will’ dt.24.05.2017 was made under coercion and undue influence by the petitioner/instant respondent and not in accordance with the provisions of Chapter VII of the Mizo Marriage, Divorce and Inheritance of Property Act as such the ‘will’ dt.24.05.2017 is null and void.

7. The ld. lower court then framed the following issues :

(1) Whether the petitioner is eligible to fi