Miss L. Rinkimi v. Liansawma — 1972 DIGILAW 87 (GAU)

Judgement BAHARUL ISLAM, J. :- This appeal under R. 3 of the Assam High Court (Jurisdiction Over District Council Court) Order 1954, is directed against the order dated 23-12-68 passed by the Judicial Officer District Council Court, Aijal, in Civil Appeal No. 2 of 1966. 2. The facts of the case, briefly, are as follows : Respondent Liansawma is the youngest brother of appellant Rinkimi. They are the children of late Rev. Thianga of Saronbhhinga Veng, Aijal. (we shall hereinbelow designate Liansawma as the plaintiff and his witnesses as P. W.s and appellant Rinkimi as defendant and her witnesses as D. Ws). The defendant was working as an office assistant in the office of the Deputy Commissioner, also called Superintendent of Lushai Hills (now Mizoram) at Aijal. She applied for a house site in her name and house pass No. 187 dated 27-10-1947 was issued in her name. Later on it was replaced by pass No. 209 of 2-12-47, issued in her name for another site which was later extended under a fresh pass No. 13 of 18-2-1949. At that time Rev. Thianga, who was in Govt. service, was due to go on retirement. The eldest brother of the defendant, Lalhmangaih (P. W. 2) was working in the S. R. P. office at Haflong but stayed at Aijal during holidays and the plaintiff Liansawma was working in the Assam Regiment. At first a kitchen was built on the site. At that time all the members of the family including the plaintiff and the defendant and their sisters and the eldest brother were living together. After the main house was built the parents also joined them and all the members lived in the house. During the year 1951-52 the house pass was transferred to the name of Rev. Thianga, who was the head of the family, according to the Mizo customs. Though the whole family lived in the house for some time under the care of their parents. P. W. 2 the eldest son was allowed to live in a separate house of his own as "In dang" according to the Mizo customs, but the other members continued to stay in the same house till the death of Rev. Thianga on 17-12-56. P. W. 2 the eldest son was allowed to live in a separate house of his own as "In dang" according to the Mizo customs, but the other members continued to stay in the same house till the death of Rev. Thianga on 17-12-56. After his death the defendant got the house pass transferred to her own name in 1961 without the knowledge and consent of the other members of the family and in 1965 she asked her youngest brother, the plaintiff, to leave the house claiming it as her own exclusive property. Then on enquiry the plaintiff came to know that the defendant had got the pass transferred to her name. An amicable settlement was attempted but without success. The plaintiff then filed a case, being Misc. Case No. 62 of 1965, in the Subordinate District Council Court at Aijal claiming that he being the youngest son, was the legal heir of late Rev. Thianga and that under the Mizo Customary Laws he was entitled to inherit the house. The learned Additional Subordinate District Council Court, after hearing the parties dismissed the claim of the plaintiff by his order dated 30-12-65. The plaintiff then preferred an appeal before the District Council Court and the Judicial Officer of the said Court allowed the appeal. Hence this appeal before us. 3. Though this is a second appeal, it is not confined to questions of law only. In an appeal under Rule 3 of the Assam High Court (Jurisdiction Over District Council Court) Order, 1954, this Court may, and in suitable cases do, go into the questions of fact. This appeal primarily depends on an important question of fact, namely, who originally acquired the disputed property and therefore we propose to go into evidence in the case as well as into questions of law. 4. In the instant case the plaintiff claims that the property in question is a family property and under the Mizo Customary Laws it belonged to his father who was the head of the family and he being the youngest son, is entitled to inherit it: while the defendant claims that it is her self-acquired property and therefore the question of inheritance by the plaintiff does not arise at all. 5. The plaintiff has examined himself and one witness. 5. The plaintiff has examined himself and one witness. The material evidence of the plaintiff is that the site of the house in dispute was applied for in the name of his sister Rinkimi as at the relevant time she was working in the office of the Deputy Commissioner, who was the authority to issue pass for house site, as it was thought convenient for her to pursue the application and obtain the pass. But he asserts that the property was a family property belonging to the father, and that the house was constructed by the members of the family. P. W. 2. Lalhmangaiha, is the eldest son of Rev. Thianga. He is the most important witness as he has no personal interest in the matter and is equally related to the two claimants. His evidence is that the defendant made the application for the site in her name in consultation with him. But the members of the family constructed the house to be not of the defendant only but it was built for the family, and that he himself contributed Rs. 300.00 towards the construction of the house. He says that the house was treated as the fathers house from the beginning and the pass originally standing in the name of the defendant was transferred to the name of their father because it was a family house and the pass should stand in the name of the eldest male member. He further states that when the site was applied for, the Deputy Commissioner asked whether a lady would be able to build the house and the defendant replied that her brothers would build the house. The defendant in her evidence admits that at the relevant time she worked as Lower Division Assistant in the office of the Deputy Commissioner and that she applied for the house pass. But she says that she made the application on her own without consulting the other members of the family. She claims the house to be her own. She also admits that when she applied for the second pass P. W. 2 was at Aijal on leave and that along with him she visited the site for which pass was granted in her name in 1947. She claims the house to be her own. She also admits that when she applied for the second pass P. W. 2 was at Aijal on leave and that along with him she visited the site for which pass was granted in her name in 1947. She also admits that at the time of construction of the house P. W. 2 was present and that after the house was constructed the members of the family stayed in the house that the plaintiff, who was in service came to Aijal in 1949 and she also joined the other members of the family and all of them built the main house together when her parents also came and stayed with them; that after the main house was completed P.W. 2 also came and stayed together in that house with the other members of the family, and that she transferred the pass to her father in 1951-52, but she explains that the pass was transferred to the name of her father out of respect to the father. She also admits that her brothers also helped in the construction of the house. D. W. 2. Zawngauva, Village Council Secretary of Saron Veng, deposes that so far as he knew Rinkimi being a Government servant "applied for a house site and she was granted, then she built it." He further says that the defendants father also helped her in building the house, but he says that he does not "know definitely for whose house the same was built". The evidence of this witness is not helpful. What he knows only is that the original application was made in the name of the defendant, which fact is not controverted by the plaintiff. D. W. 3 is Pu Tea, Village Council President of Saron Chhinga Veng, Aijal. His evidence is that Rev. Thianga, during his illness before his death, sent for him and he was told that Rev. Thianga considered this house as his own and declared his youngest son (plaintiff) as his legal heir according to the Mizo custom. He says that at the time of execution of the will Rev. Thianga regarded the house as his own exclusive property. D. W. 4. Sangliana, Member of Village Council, Saron Veng, Aijal says that he cannot definitely say as to who is the owner of the house. 6. He says that at the time of execution of the will Rev. Thianga regarded the house as his own exclusive property. D. W. 4. Sangliana, Member of Village Council, Saron Veng, Aijal says that he cannot definitely say as to who is the owner of the house. 6. The evidence referred to above shows that although the application for the house pass was made in the name of the defendant, the property was treated as the family property belonging to the father, who was the head of the family. We agree with the finding of the learned Judicial Officer, District Council Court, when he holds : "From the statements of the parties and from the evidence of the witnesses it is clear that the House Pass was originally issued to the name of Respondent Rinkimi. It is also clear that the Pass has been transferred to the name of their late father Rev. Thianga, the head of the family at the consent of the family members including Smt. Rinkimi ........................ we are of the opinion that as soon as Smt. Rinkimi transferred the House Pass to the name of her late father at her own consent, she legally transferred the right of ownership to her late father and she has been relinquished from the right of ownership of the house since then." Relying on the contents of the will (Ext. 1) executed by Rev. Thianga before his death, the learned Judicial Officer, found that Rev. Thianga treated the house as his own and therefore he included this property in his will. He came to the ultimate finding : "In view of all these facts we conclude that the house in dispute was the property of late Rev. Thianga, which may devolve upon applt. Liansawma as an inheritance, and the transfer of the pass affected by Respondent Rinkimi to her name without the knowledge and consent of the legal heir was not tenable in law and according to Mizo Custom." We have no reason to differ from the findings of the learned Judicial Officer in this regard and have no hesitation in holding that the property belonged to Rev. Thianga who was the head of the family. 7. The next question that arises for decision is who will inherit the property. Thianga who was the head of the family. 7. The next question that arises for decision is who will inherit the property. It may be mentioned that the House pass was granted on 27-10-47 and the last pass (pass No. 13) was granted on 18-2-1949 and the will in question was executed by Rev. Thianga on 8-7-52. Therefore the Mizo District (Inheritance of Property) Act, 1956 is not applicable to the present case. The law applicable to the instant case is the customary law prevailing at the relevant time. According to the prevailing Mizo Customary Laws. "The heir must be the nearest male relative, the first will be the son, and in case of a number of sons, the youngest son is the heir". When the father of a family dies, one who inherits his property is his son. In case he has several sons the legal heir shall be the youngest son, whose duty according to the Mizo customs is to support his parents (vide Hnam Dan or Mizo Customary Laws). That this is the customary law has been accepted by both the parties. The plaintiff in his evidence has stated that according to the Mizo customs he being the youngest son is the legal heir of his late father, with certain obligation to his unmarried sisters. D. W. 3, Pu Tea President of the Village Council of the Veng has stated that Rev. Thianga declared his youngest son as his legal heir according to the Mizo customs. The defendant herself in her evidence has admitted when she deposes : "I did not make an objection when my father executed the will giving the house in dispute to Liansawma. The reason why I did not make an objection was that as sister I thought that would naturally fall under the care of the legal heir. I know that Liansawma is the legal heir who is to receive my marriage price and also who will be the head of our family in the place of my late father according to Mizo Custom." 8. We, therefore, agreeing with the learned Court below, hold that under the Mizo Custom, it is the plaintiff, who is the youngest son of Rev. Thianga, who will inherit the house pass in question. In the result this appeal has no substance and is dismissed. We, therefore, agreeing with the learned Court below, hold that under the Mizo Custom, it is the plaintiff, who is the youngest son of Rev. Thianga, who will inherit the house pass in question. In the result this appeal has no substance and is dismissed. But as the parties are brother and sister, we leave them to bear their own costs. 9. PATHAK, J :- I agree. Appeal dismissed.