Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

CIVIL APPEAL NOS.7159­7160 OF 2008
1. Application   for   substitution   to   bring   on   record   legal
representatives   of   the   deceased   appellant   No.3­Thanzami   is
allowed, subject to all just exceptions. 
2. The present appeals challenge the common judgment and
order   of   the   Gauhati   High   Court,   Aizawl   Bench,   dated   7th
November,  2007,  passed   in   RSA   No.12  of   2006   with   Cross
Objection No.4 of 2006, vide which, the learned single judge of
the High Court has allowed the said Second Appeal filed by the
respondents herein and dismissed the cross­objection preferred
by the appellants herein.  
3. For appreciating the controversy in question, it will be
appropriate to reproduce the family chart, which is as under:
一 C 一 Dr.LalrinlianaSallo(p-1D)
4. P.S. Dahrawka and Kaithuami, through whom the parties
herein are claiming inheritance, were married to each other on
28th  January, 1927.   Ten children were born out of the said
wedlock, i.e., two sons and eight daughters.  Out of the said ten
children, one son died at the age of one and half year in the
year 1940 and one daughter died a week after her birth.  
5. Though in the judgment, the High Court has referred that
the property in dispute was purchased by P.S. Dahrawka in the
year   1972  by  virtue  of   LSC  No.  AZL  56  of   1972,  it   is  the
contention of the appellants herein that the said property was
jointly purchased by P.S. Dahrawka and Kaithuami in the year
1945.  P.S. Dahrawka died on 5th March, 1978.  At the time of
his death, he was survived by his wife Kaithuami, only son
Thanhnuna   and   seven   daughters.     All   the   daughters   were
married and living with their respective families.       After his
death, his youngest daughter, Thansangi Huha (appellant No.4
herein),   was   divorced   and   came   to   live   with   her   mother
Kaithuami in January, 1997.  The son Thanhnuna, who died in
the year 1996, was survived by his widow Ralliani and two
daughters, namely, Laldinpuii and Lalmuanpuii, who are the
respondents herein.
6. After the death of P.S. Dahrawka, the son Thanhnuna
applied for the heirship certificate in his name in respect of the
properties covered by LSC No. AZL 56 of 1972 left by his father,
i.e.,   P.S.   Dahrawka.       His   claim   was   based   on   the   Mizo
Customary Law of Inheritance, which provides that a son shall
inherit the properties of a Mizo and if the deceased is survived
by   more   than   one   son,   the   youngest   son   shall   inherit   the
property.     However,   before   his   application   for   heirship
certificate   could  be  decided,   Thanhnuna  died  on  28th  April,
1996.   After his death, his mother Kaithuami submitted an
objection on 31st May, 1996.  The Subordinate District Council
Court,   Aizawl   dismissed   the   application   of   Thanhnuna   for
heirship certificate on 11th June, 1996 due to his death.   His
widow Ralliani (respondent No.1 herein) filed an application for
restoration of application for heirship certificate filed by her
husband­deceased Thanhnuna.   The same was dismissed by
the Subordinate District Council Court, Aizawl vide order dated
rd July, 1996.  
7. In   the   meantime,   mother   Kaithuami   also   filed   an
application   being   H.C.   No.1275   of   1996   claiming   heirship
certificate in respect of the properties of her husband deceased
P.S.   Dahrawka.     The   said   application   was   objected   to   by
Ralliani and her two daughters.  As such, the dispute came to
be converted into a civil suit being Civil Suit No.13 of 1996 in
the Court of Subordinate District Council Court, Aizawl. Vide
judgment and order dated 7th August, 1997, the said suit came
to be decreed in favour of the mother Kaithuami and she was
declared the legal heir of her deceased husband P.S. Dahrawka
in respect of the disputed properties.  
8. The respondents herein filed an appeal being C.A. No. 12
of   1997   before   the   District   Council   Court,   Aizawl.     The
Appellate Court vide order dated 9th  July, 2001 directed that
the disputed property to be divided between four daughters of
Kaithuami, i.e., respondents therein (i.e. appellants herein) on
one hand and three appellants therein (i.e. respondents herein)
being legal heirs of Thanhnuna on the other hand.  
9. The said judgment and order of the Appellate Court was
assailed by the appellants herein before the High Court in RSA
No.3 of 2001. The High Court vide judgment and order dated
13th  May,   2003,   observed   that   there   was   no   meaningful
discussion on the legal entitlements of either of the parties in
the changed situation following the death of the predecessorsin­interest of both the parties, and as such, remitted the matter
to the First Appellate Court, Aizawl, i.e., District Council Court,
Aizawl for deciding the appeal afresh.  
10. On remand, the District Council Court, Aizawl disposed of
the appeal vide judgment and order dated 10th July, 2003.  As
per the said judgment, only the appellants herein were held to
be entitled to the property of deceased P.S. Dahrawka to the
exclusion of the widow and daughters of deceased Thanhnuna
(respondents herein).  Being aggrieved thereby, the respondents
herein preferred RSA No. 9 of 2003 before the High Court.  The
High Court vide judgment and order dated 9th  March, 2005
again   remanded   the   case   to   the   First   Appellate   Court,   i.e.,
District Council Court, Aizawl to decide the matter afresh upon
hearing the parties.   The District Council Court, Aizawl, on
remand, vide judgment and order dated 28th  February, 2006,
partly allowed the appeal in the following terms:
“1) That Respondent No. (d) namely Smt.
Thansangi Huha shall inherit.
(a) The   main   house   named   “AHIMSA”
(b) the   Assam   type   building   on   the
roadside above ‘AHIMSA’ adjacent in
the   south   to   RCC   building   on   the
roadside including the land they are
standing   on   covered   by   LSC   AZL
2. The   Appellant   No.3   namely   Smt.
Lalmuanpuii Huha shall inherit:­
(a) RCC   building   on   the   roadside
adjacent   in   the   north   to   the
Assam type building stated at (I)
(b) above and 
(b) Assam   type   building   on   the
roadside adjacent in the north
to   the   building   stated   at   2(a)
above   including   the   land   they
are standing on covered by LSC
AZL No.54/72.”
11. Being aggrieved, the respondents herein preferred Second
Appeal being RSA No.12 of 2006 before the High Court and the
appellants herein preferred Cross­Objection No. 4 of 2006. By the
impugned judgment and order dated 7th  November, 2007, the
High Court has allowed the said Second Appeal and dismissed
the   Cross­Objection,   thereby   holding   that   it   is   only   the
respondent Nos. 2 and 3 herein being legal heirs of Thanhnuna,
who were entitled to the rights in the property to the exclusion of
the appellants herein.  Being aggrieved, the present appeals by
way of special leave. 
12. We have heard Mr. Robin Ratnakar David, learned counsel
appearing on behalf of the appellants and Mr. Pragyan Pradeep
Sharma, learned counsel appearing on behalf of the respondents.
13. Mr. Robin Ratnakar David, learned counsel appearing on
behalf of the appellants, would submit that the High Court failed
to take into consideration that under the Mizo Customary Law it
is not only the rights which are inherited, but it is also the
responsibilities which are inherited.   It is submitted that the
inheritance depends upon the responsibilities discharged by a
legal   heir   towards   his/her   parents   in   their   old   age.     It   is
submitted that the deceased Thanhnuna was residing separately
and   it   was   only   the   appellant   No.4­Thansangi   Huha,   the
youngest   daughter   of   the   deceased   P.S.   Dahrawka   and
Kaithuami, who was taking care of her aged mother Kaithuami.
It is further submitted that the deceased P.S. Dahrawka and
Kaithuami had entered into an agreement dated 28th  January,
1927 and agreed that they would inherit each other’s property,
and as such, on the death of her husband P.S. Dahrawka, his
property was inherited by Kaithuami, and on her death, by their
daughters.  It is submitted that since Thanhnuna had not looked
after his mother or the family members, he or his legal heirs were
not entitled to any rights in the property.   As such, the High
Court   had   grossly   erred   in   allowing   the   Second   Appeal   and
dismissing the Cross­Objection.  
14. Shri Pragyan Pradeep Sharma, learned counsel appearing
on behalf of the respondents, on the contrary, would submit that
the High Court has rightly allowed the Second Appeal filed by the
respondents herein and dismissed the Cross­Objection filed by
the   appellants   herein.     It   is   submitted   that   the   property   in
question was not covered by the agreement dated 28th January,
1927 and is guided by the Mizo Customary Law.  It is submitted
that   the   suit   property   being   LSC   No.   AZL   56   of   1972   was
purchased only by P.S. Dahrawka and deceased Kaithuami had
no   contribution   in   the   purchase   of   the   said   property.   It   is
submitted that according to Mizo Customary Law, Thanhnuna
being the only son was the only legal heir of his late father P.S.
Dahrawka.  It is submitted that Thansangi Huha (appellant No.4
herein) was divorced on 20th June, 1980. She however chose not
to stay with her mother for 17 long years.  It is submitted that
she came to live with her mother Kaithuami only after the death
of Thanhnuna. It is therefore submitted that the present appeals
deserve to be dismissed.  
15. We have considered the rival submissions.  We find that the
District   Council   Court,   Aizawl,   on   second   remand,   upon
considering the factual matrix, particularly Section 109(3) and
Section   109(10)   of   the   Mizo   Customary   Law,   observed   that
though as per the Mizo Customary Law, it is the youngest son,
who would be entitled to inherit the property of his father; there
is an ample scope for distribution of the property in a fair and
reasonable manner. The District Council Court, Aizawl has found
that   in   case   of   a   rich   father,   the   property   can   be   divided
proportionately amongst the sons.  
16. The District Council Court further found that insofar as the
female members of  the  family, who are already married and
living   in   separate   households   are   concerned,   they   are   not
entitled to any share.  The District Council Court further found
that under the Mizo Customary Law, inheritance also depends
upon the responsibilities carried out by the legal heir.   It has
been found that till his death, Thanhnuna was looking after his
mother.   However, after his death, Thansangi Huha (appellant
No.4 herein) came back to her original home to look after her
aged mother Kaithuami.  It was found that the provision of Mizo
Customary Law relating to ‘divorced’ (Hringkir) in the matter of
inheritance would apply to her and her right to inheritance of
her father’s properties subsists by virtue of her being divorced
(Hringkir) and coming back to the original family for looking after
the mother.   The District Council Court found that Thansangi
Huha looked after her mother till her death and also discharged
the   responsibility   of   erecting   ceremonial   tombstone   for   her
mother.         The District Council Court also found that after
exclusion   of   the   daughters   of   deceased   P.S.   Dahrawka   and
Kaithuami, who were married and living in separate households
and one daughter of Thanhnuna, i.e., Laldinpuii, who was also
married into a different clan, the contest was between Thansangi
Huha (appellant No.4 herein), the youngest daughter of deceased
P.S. Dahrawka and Kaithuami, who after divorce came back to
her house and was looking after her mother on one hand and
Lalmuanpuii   (respondent   No.3   herein),   the   other  daughter   of
deceased Thanhnuna.  
17. The   District   Council   Court   found   that   since   Thansangi
Huha (appellant No.4 herein) had discharged her responsibility
of looking after her mother till her death and was occupying the
main bed and reassuming her father’s clan title ‘Hahu’, her right
to inherit her father’s properties could not be defeated. It further
found that on the other hand Lalmuanpuii (respondent No.3
herein), though a female, was grand­daughter from the male
lineal descent of deceased P.S. Dahrawka.  She was unmarried
and purely a ‘Hahu’ in the line of P.S. Dahrawka.  It found that
her right to inheritance in the instant dispute was safeguarded
by the Customary Law in the absence of descendants having a
better right for the purpose.  The District Council Court therefore
found   that   taking   into   consideration   the   principle   of   Mizo
Customary Law of Inheritance and the spirit of equity, which is
paramount to Mizo Customary Law, it was appropriate that the
property be divided between Thansangi Huha (appellant No.4
herein) and Lalmuanpuii (respondent No.3 herein).
18. The Gauhati High Court, Aizawl Bench, speaking through
Madan   B.   Lokur,   C.J.   (as   he   then   was),   in   the   case   of
Thansiami vs. Lalruatkima and ors.1
 has also held that the
inheritance depends upon the question as to whether a person
supports the deceased in his old age or not.   It has been held
that even if a natural heir does not support his parents, he
would not be entitled to inheritance.   It has further been held
that even if there is a natural heir, a person who supports the
person   until   his   death   could   inherit   the   properties   of   that
19. We   therefore   find   that   the   view   taken   by   the   District
Council   Court,   Aizawl,   on   second   remand,   is   based   on   the
consideration of equity and the responsibility of a legal heir to
look   after   the   elders   in   the   family.     The   said   view   is   also
supported by the judgment of the Gauhati High Court, Aizawl
Bench in the case of  Thansiami   vs.   Lalruatkima   and   ors.
(supra).  We respectfully agree with the said view.  
20. We are therefore of the considered view that the High Court
was not justified in reversing the well­reasoned and equitable
1 (2012) 2 Gauhati Law Reports 309
judgment and order passed by the District Council Court dated
28th February, 2006 in C.A. No.12 of 1997.
21. In the result, we pass the following order:
A. The appeals are allowed.
B. The judgment and order of the Gauhati High Court,
Aizawl Bench dated 7th November, 2007 in RSA No.12 of
2006 and Cross Objection No.4 of 2006, is quashed and
set aside.  
C. The judgment and order of the District Council Court,
Aizawl dated 28th February, 2006 in C.A. No.12 of 1997,
is affirmed.  
22. Pending   application(s),   if   any,   shall   stand   disposed   of.
There shall be no order as to costs. 
APRIL 26, 2022.


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