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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MARLI VANKUNG, J.
D.K. Lalchhanhima and Another – Petitioners
Versus
R. Chhiarkungi – Respondent
R.F.A. No. 4 of 2021
Decided On : 04-05-2023
Mizoram Civil Courts Act, 2005 - Section 17(2)(b) - Heriship Certificate - Application for probate - Will - Deceased (L), who passed away on had a plot of land with a building standing thereon covered by LSC No. which was located, , Mizoram having an area of 99.00 sq. m - Said land which belonged to deceased originally belonged to his grandfather,, who died on leaving behind land and building which was previously covered by House Pass No. - On death of Mr. R.C., said land and building devolved - On death in year 1997, his son was declared as a legal heir in respect of said land and building now covered under LSC Certificate No. vide Heriship Certificate - Whether findings of Will alleged to be executed by deceased was attested under suspicious circumstances and therefore, cannot be probated and whether learned trial court had erred in declaring Will executed by testator as invalid – Held, In instant case it is seen from evidence adduced by witnesses of both parties that deceased was addicted to taking drugs such as heroin and had not left bad habit even during time he was supposed to have prepared Will - Appellants/legatees in evidence adduced by them before trial court have also mentioned that deceased would do anything to get money due to his addiction - Court also finds that contents of Will have a reason to cause suspicion as to whether testator had made Will on his own free will or under some undue influence since testator while making Will in favour of legatees by bequeathing LSC No., further mentions that he will not alter/modify his Will without knowledge and consent of legatees - It is thus found that there are suspicious circumstances where testator makes such a condition and deprive himself, right to alter his will freely if he so desired - Accordingly, R.F.A. No. 4 of 2021 stands dismissed and disposed.
JUDGMENT :
MARLI VANKUNG, J.
1. Heard Mr. B. Lalramenga, learned counsel for the appellants along with Mr. T. Lalnunsiama, learned counsel for the respondent.
2. This is an appeal under Section 17(2)(b) of the Mizoram Civil Courts Act, 2005 against the impugned Order dated 17.12.2020 passed by the learned Senior Civil Judge, Champhai, Aizawl Judicial District in Probate Application No. 1/2016, by which the application for probate of the Will dated 23.02.2015 said to be testated by Mr. R. Lalthianghlima (L) was rejected.
3. Facts of the case in brief is that the deceased Mr. R. Lalthianghlima (L), who passed away on 25.06.2015, had a plot of land with a building standing thereon covered by LSC No. 3091/09/01/01 of 2014 which was located at Champhai, Vengthlang, Mizoram having an area of 99.00 sq. m. The said land which belonged to the deceased Mr. R. Lalthianghlima originally belonged to his grandfather, Mr. R.C. Thangliaua, who died on 18.07.1992 leaving behind the land and building which was previously covered by House Pass No. 104 of 1981. On the death of Mr. R.C. Thangliaua, the said land and building devolved to Mr. Lalnunzira S/o Mr. R.C. Thangliaua. Thereafter, on the death of Mr. Lalnunzira in the year 1997, his son Mr. R. Lalthianghlima was declared as a legal heir in respect of the said land and building now covered under LSC Certificate No. 3091/09/01/01 of 2014 vide Heriship Certificate No. 56/2012 dated 06.08.2012.
4. The learned Civil Judge, Champhai while issuing Heirship Certificate No. 56/2021 to Mr. R. Lalthianghlima, wherein the House Pass No. 104/1991 was still in the name of Mr. R.C. Thangliaua, had stipulated following conditions that:
5. The learned Lower Court had passed the said order due to the fact that the deceased Mr. R. Lalthianghlima was said to be a drug abuser. Thereafter, on the death of Mr. R. Lalthianghlima, the instant appellants had approached the Court of the Senior Civil Judge, Champhai in Probate Application No. 1/2016 for the probate of the alleged Will testated by the deceased Mr. R. Lalthianghlima dated 23.02.2015. The learned Senior Civil Judge in Probate Case No. 1/2016, however, rejected the probate of the Will on the grounds that the Will was made under suspicious circumstances and that the alleged Will is not free from undue influence, coercion etc and it cannot be said that the testator executed the Will in his clear mind. Aggrieved by this Order dated 17.12.2020 in Probate Case No. 1/2016, the appellants have now approach this Court by filing the instant Regular First Appeal.
6. Mr. B. Lalramenga, learned counsel for the appellants submits that the said Will executed by the deceased Mr. R. Lalthianghlima on 23.02.2015 was a genuine Will,wherein the deceased Mr. R. Lalthianghlima had executed the Will in favour of the appellants with respect to his landed property which was originally covered under House Pass No. 104/1981 and later mutated as LSC No. 3091/09/01/01 of 2014 by the deceased Mr. R. Lalthianghlima. He submits that the appellants had looked after the deceased Mr. R. Lalthianghlima, who was a drug addict. Though they have no blood relation, the deceased Mr. R. Lalthianghlima considered them as his brothers. He submits that from the evidence, it is clear that the mother of the appellants had looked after the deceased from 2012 and he stayed with their mother even though he had his relatives.
7. The learned counsel further submits that though it is seen from the evidence that the propounder of the Will was present at the time of the execution of the Will, however this does not necessary vitiate the Will since no undue influence was exercised on the deceased Mr. R. Lalthianghlima while he executed his Will.
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.
The propounder of a Will must prove its execution and validity, and the presence of suspicious circumstances must be specifically pleaded by the opposing party to shift the burden of proof.
The proof of an unregistered WILL must dispel all suspicious circumstances surrounding its execution; failure to do so results in denial of probate.
The court emphasized that a Will must be validly executed and free of suspicious circumstances, placing the burden on the propounder to dispel doubts about its authenticity.
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