JUDGMENT A.B. Pal, J. 1. The judgment and order dated 28.2.2006 passed by the District Council Court, Aizawl in CA. No. 12 of 1997 is under challenge in the present second appeal and the cross-objection preferred by the rival parties which I propose to dispose of by this common judgment. It may be noted at the very outset that this second appeal is under Order 3 of the Assam High Court (Jurisdiction over District Council Court), 1954, though the cross-objection has been raised under Order 41, Rule 22 of the Code of Civil Procedure. For the above reasons no substantial question of law have been formulated in the memo of appeal. 2. The dispute over the immovable properties covered by LSC No. AZL 56 of 1972 is between the contending parties herein who claim inheritance on the strength of being in the line of succession from the original owner P.S. Dahrawka who died on 5.3.1978. Admittedly the Mizo Customary Laws on inheritance has to be pressed into service to decide the issues by correct construction of the same. There is no dispute that the provision contained in Section 109 of the Mizo Customary Laws promulgated by the Mizo district council regulates the question of inheritance to properties of a Mizo dying in-testate. Before adverting to the question relating to the law of inheritance in terms of the Mizo customary law the factual matrix is to be noticed first. 3. P.S. Dahrawka and Kaithuami got married on 28.1.1927. They are no more. Ten children were born from their wedlock, two sons, eight daughters. Out often children one son died at the age of one and half year in 1940 and one daughter died a week after her birth. P.S. Dahrawka got the property in dispute only in 1972 by virtue of LSC No. AZL 56 of 1972. When he died on 5.3.1978 he was survived by his wife Kaithuami, only son Thanhnuna and seven daughters. All the daughters got married and have been living with their own families. The youngest daughter Thansangi, however, got divorced and came to live with her mother from January 1997. The only son Thanhnuna died in 1996 survived by his widow Smt. Ralliani and two daughters Smt. Laldinpuii and Km Lalmuanpuii who are Appellants herein. Admittedly, till his death in 1996 he lived with his mother, wife and daughters together in common mess. The youngest daughter Thansangi, however, got divorced and came to live with her mother from January 1997. The only son Thanhnuna died in 1996 survived by his widow Smt. Ralliani and two daughters Smt. Laldinpuii and Km Lalmuanpuii who are Appellants herein. Admittedly, till his death in 1996 he lived with his mother, wife and daughters together in common mess. The mother Kaithuami died in 1999. 4. Thanhnuna, the only surviving son of Rs. Dahrawka and Kaithuami, applied for heir-ship certificate in his name in respect of the properties of LSC No. AZL 56 of 1972 left by his father. His claim was based on the Mizo customary law of inheritance which provides that son shall inherit the properties of a Mizo and if the deceased is survived by more than one son, the youngest son shall inherit. Thanhnuna being the only son claimed exclusive heir-ship over the said property. The application was registered in the court of sub district council, Aizawl as H.C. 1031 of 1996. But before the said application could be disposed of Thanhnuna died on 28.4.1996. Only after his death his mother kaithuami submitted an objection on 31.5.1996. However, the sub-district council court dismissed the application of Thanhnuna for heirship certificate on 11.6.1996 due to death of the applicant. Immediately thereafter, in the same month, the widow of Thanhnuna presented an application for restoration of the H.C. Case No. 1031 of 1996 instituted by her husband. On 3.7.1996 the application was dismissed. The widow, however, was informed that her mother-in-law had submitted a counter claim to issue heir-ship certificate in her name and, therefore, she was at liberty to submit an objection or counter claim in that proceeding. 5. The application of Kaithuami claiming heir-ship certificate in respect of the properties in suit of her husband was initially registered as H.C No. 1275 of 1996. But after receipt of objection from Smt. Ralliani and her two daughters the case was converted into civil suit No. 13 of 1996 in the court of Subordinate District Council Court, Aizawl. The said case came to be disposed of by judgment dated 7.8.1997 whereby Kaithumi was declared the legal heir of her deceased husband P.S. Dahrawka in respect of the disputed properties covered by LSC No. AZL 56 of 1972 with buildings and other properties standing thereon. The said case came to be disposed of by judgment dated 7.8.1997 whereby Kaithumi was declared the legal heir of her deceased husband P.S. Dahrawka in respect of the disputed properties covered by LSC No. AZL 56 of 1972 with buildings and other properties standing thereon. While decreeing the suit in favour of Kaithuami the learned trial court observed that the application for heir-ship certificate by Thanhnuna was dismissed by the sub district council court and the prayer of his widow to restore the proceeding was also rejected. It was thus very clear, the trial court observed, that the deceased Thanhnuna did not inherit the properties of his father before his death and the disputed properties remained in the hands of Plaintiff Kaithuami. The trial court further observed that in view of the provision of Section 109(3) of the Mizo Customary Laws Kaithuami inherited the property of her husband. The said provision reads: if, however, the deceased's wife is ready and willing to remain in the house occupying the main bed and discharging the duties and functions of the mother, nobody should disturb her especially where there are unmarried daughters or divorced daughter or other grand children of the deceased living with her. It would appear from the above that the learned trial court proceeded to decree the suit from the premise that as heir-ship certificate could not be issued in favour of Thanhnuna during his lifetime because of his untimely death, he did not inherit the properties of his father, as if inheritance depends on issue of heir-ship certificate. The second premise is that Plaintiff Kaithuami, being the head of the family is entitled to heir-ship in respect of the properties of her husband as per Section 109(3) of the Mizo Customary Laws on inheritance which provides that 'nobody should disturbed her especially where there are unmarried daughters or divorced daughter or other grand children of the deceased living with her'. 6. The said judgment and decree was assailed by the three Appellants herein in CA 12 of 1997 in the District Council Court, Aizawl. The appellate court took note of the fact that both Kaithuami and her son Thanhnuna having died, the rival sides are 'second persons who would have right over the disputed property only when the first party inherited the disputed property'. The appellate court took note of the fact that both Kaithuami and her son Thanhnuna having died, the rival sides are 'second persons who would have right over the disputed property only when the first party inherited the disputed property'. Taking a pragmatic view of the practical situation then prevailing after death of both mother and son and without giving decision strictly on the basis of the customary law, the appellate court directed that the disputed properties would be divided between four daughters of Kaithuami on the one hand and three Appellants herein on the other, being legal heirs of Thanhnuna. As per the said decision the main building "Ahimsa" would be inherited by the four daughters of Kaithuami and other buildings would go to the share of the legal heirs of Thanhnuna. 7. The judgment of the appellate court was assailed by four daughters of Kaithuami in RSA No. 3 of 2001 which was disposed of by this Court on 13.5.2003. This Court observed that 'there was no meaningful discussion as to the legal entitlements of either of the parties in the changed situation following the death of the predecessor in interest of both the parties'. The matter was then remanded-to the first appellate court, Aizawl for a de novo decision on the basis of the available materials on record. 8. The District Council Court, after receipt of the case on remand dismissed the appeal and confirmed the judgment and order of the trial court. The operating part of the order of the appellate court reads as follows: Therefore, we order that the appeal petition is dismissed and the judgment and order of the lower court is hereby upheld. However, due to the changed situation, the immovable property covered under LSC No. 56/72 shall be jointly inherited by the surviving children of the deceased P.S. Dahrawka and Kaithuami, viz., Smt. Thansiami, W/o. Brig. T. Sailo, R/o. Kanan Veng, Aizawl, Smt. Thankhumi, W/o. FVL Vuana, Chhinga Veng, Smt. Thanzami, W/o. D. Purkayastha, Khatia, Smt. Thansangi of Chhinga Veng, Aizawl. Thus, the wife and two daughters of Thanhnuna, the deceased son of P.S. Dahrawka and Kaithuami, were denied any part of the said property in dispute. 9. The three Appellants herein being aggrieved approached this Court by means of RSA No. 9 of 2003 putting under challenge the judgment and order dated 10.7.2003 of the first appellate court. Thus, the wife and two daughters of Thanhnuna, the deceased son of P.S. Dahrawka and Kaithuami, were denied any part of the said property in dispute. 9. The three Appellants herein being aggrieved approached this Court by means of RSA No. 9 of 2003 putting under challenge the judgment and order dated 10.7.2003 of the first appellate court. The said second appeal came to be disposed of on 9.3.2005 once again remanding the case to the first appellate court to decide the matter afresh upon hearing the parties. The reason for the remand of the case again is that the first appellate court, while deciding the case after receiving the case from this Court on remand, did not afford the rival parties any opportunity of being heard. 10. Receiving the case on remand again the District Council Court decided the first appeal on 28.2.2006 after hearing both the parties. This time the Mizo Customary Laws on inheritance, particularly the provisions contained in 109(2) has been discussed. The other important issue discussed by the appellate court is the agreement between P.S. Dahrawka and his wife Kaithuami at the time of their marriage. According to that agreement they would inherit the property of each other. The said agreement was executed on 28.1.1927, but the property in dispute was acquired by P.S. Dahrawka only in 1972, forty five years after their marriage. On placing reliance on the provision of Section 109(3) of the Mizo Customary Laws and the agreement aforementioned the appellate court ordered that Smt. Thansangi the youngest divorced daughter of Dahrawka and Kaithuami would inherit the building 'AHIMSA' and the Assam type building on the roadside above 'AHIMSA'. Smt. Lalmuanpuii, youngest daughter of Thanhnuna would get the RCC building on the roadside, adjacent north of Assam type building, and another Assam type building on the roadside. Aggrieved, the three Appellants herein, being legal heirs of Thanhnuna have preferred the second appeal and the four daughters of Kaithuami and P.S. Dahrawka have preferred the cross-objection raising their rival claims over the entire property covered by LSC No. AZL 56 of 72. 11. I have heard learned Counsel for the parties. 12. The nature of the dispute set out above would focus on the importance of understanding the Customary Law and decide the dispute by proper construction of the same. 11. I have heard learned Counsel for the parties. 12. The nature of the dispute set out above would focus on the importance of understanding the Customary Law and decide the dispute by proper construction of the same. Section 109 of the Mizo Customary Law on inheritance which has been consistently invoked by the courts below needs to be noticed first: 109(2). ROKAWM: (Inheritance). Except as provided in para 10 of this Chapter, no Mizo can appoint any person to be his heir. Nearest male relative of the deceased is his legal heir. The order of inheritance shall be: A son, the youngest son in the case of the deceased having many sons. In the case of a man who has no issue, it is his brother who inherits and in the absence of a brother, a nearest male relative inherits. In the absence of near male relatives, a woman inherits to the exclusion of distant kinsman. If a man dies leaving behind him his wife and children and if they can maintain themselves nobody should disturb them. If, however, the mother and her children cannot maintain themselves, a nearest male relative will inherit, but he must support them and arrange the marriage of the deceased's sons and the marriage price of the deceased's daughter goes to him. It is obligatory on the part of the heir to repay the deceased's debt and he is also entitled to claim repayment of money lent by the deceased. A natural heir cannot refuse to inherit on the ground that the deceased was in heavy debts and in the absence of any other natural heir he is under obligation to inherit and to repay the debts. He should also support the wife of the deceased failing which the deceased wife is entitled to appoint any person who is willing to support her as heir of the deceased. If the heir resides in a village other than that of the deceased's family the latter should go to the village where the heir resides and stay with him either in his own house or in a separate house for it is not possible to support deceased's wife and children from a distant village. Deceased's wife and children shall not abstain themselves from work just because they are supported but should work and help the heir according to their capacities. 13. Deceased's wife and children shall not abstain themselves from work just because they are supported but should work and help the heir according to their capacities. 13. Para 10 of that Section which has been exempted from para (2), quoted above, provides that if person has no son but only daughters the daughter shall inherit and there are more than one, the youngest shall get preference as in the case of son. Para (10) reads: (10). Ordinarily woman cannot inherit properties; however, if a person has daughters but no son, his daughters may inherit his properties. In the case of more than one daughter the youngest daughter will be given first preference as in the case of sons. 14. Para (3) of the said Section clarifies why the youngest son gets preference to inherit. Because, he is supposed to support the aged parents. He cannot inherit all the properties merely because he is the youngest, unless he supports the aged parents till their death and whosoever among the brothers is ready and willing to support the parents till death will inherit. Thus, the principle of inheritance is based on the question of supporting the parents in their old age. Para (3) of Section109 needs to be carefully gone into: (3). PA RO KHAWM: (Inheritance from one's father). A man's direct heirs are his sons, in the case of more than one son, the youngest son shall be given the title of legal heir. The reason why the youngest son inherits is because he is supposed to support the aged parents. The youngest son cannot inherit all the properties merely because he is the youngest unless he supports the aged parents till death, and whosoever among the brothers is ready and willing to support the parents till death will inherit. In the case of a rich father the youngest son does not inherit all the properties but will share with his brothers. If there are three brothers, they will share the properties, the youngest will receive two shares which is two fourth while the other two will get one share each. If the properties happen to be a gun, a mithun and a cow, the youngest will make his choice; and if it happens to be cash the youngest son will get one extra share. If the properties happen to be a gun, a mithun and a cow, the youngest will make his choice; and if it happens to be cash the youngest son will get one extra share. If the father distributes his properties in his life time, his children will get according to that distribution. If a person has three sons and the first two sons are residing in another village and the youngest son predeceased his father and again if the father also dies, his properties will be equally divided between the two elder sons. Either of the two brothers who is ready to support the family of the deceased father will get an extra share of the property; if, however, the deceased's wife is ready and willing to remain in the house occupying the main bed and discharging the duties and functions of the mother, nobody should disturb her especially where there are unmarried daughters or divorced daughter or, other grand children of the deceased living with her. If through grudge against the two heirs who have been living in separate houses of their own, the mother is trying to dispose of her husband's properties, the two heirs may take the properties and distribute them between themselves. If either of the two heirs; through poverty or otherwise, is unable to support the family of the deceased father, he may not have a share but the one who can support the family of the deceased father will inherit. 15. The law of inheritance thus explicitly excludes woman if the deceased is survived by son. In the present case there is no dispute that Thanhnuna was the only surviving soon when his father P.S. Dahrawka died on 5.3.1978. The inheritance or title to the properties of a person does not stand or hang on his death. It starts to flow automatically with the death and rests on the person who is the legal heir in accordance with the law applicable. It does not depend on issue of any heir-ship certificate. Such a certificate is issued only to formally recognize, modify and update the records of rights in the changed situation after the death of the owner of a property. 16. What logically follows from above is that the authority by issuing heir-ship certificate does not confer any right of inheritance. It does not depend on issue of any heir-ship certificate. Such a certificate is issued only to formally recognize, modify and update the records of rights in the changed situation after the death of the owner of a property. 16. What logically follows from above is that the authority by issuing heir-ship certificate does not confer any right of inheritance. It only determines who has inherited as per the law applicable for the time being. Section 109 would thus lead to the following conclusions: (i) If a person dies without leaving a 'Will' and he is survived by wife, sons and daughters, the sons will inherit to the exclusion of others. If there is only one son he only will inherit; (ii) A person may, however, decide by a 'Will' who would inherit his properties after his death. This right has been conferred by the Mizo District Council (Inheritance of Property) Act, 1956. He can dispose of his property by a 'Will' in favour of any person including his wife and daughters. The customary law cannot not stand in his way; (iii) As per Section 4 of that Act a person can execute a 'Will' only in respect of such properties which he could alienate. Such 'Will' must be attested by two witnesses; (iv) When the agreement was executed in 1927 at the time of their marriage, the properties in dispute were not owned by Dahrawka. He got the land in 1972, forty five years after his marriage. Besides, an agreement executed by two persons, Dahrawka and his wife, cannot be said to be a 'Will' within the meaning of the aforesaid Act; (v) If there are more than one son, the youngest inherits all the properties on condition of supporting the parents. Such support must be full support till death of parents. If he does not support, 'whosoever among the brothers is ready and willing to support the parents till death will inherit', (see para 3 of Section 109). It logically follows that if the sons supports equally, they shall equally inherit. Whoever, being son, does not support his parents in need of support, shall not inherit, even though he is the youngest son; (vi) In case of a rich father who needs no financial support, all sons will inherit, but the younger son would get one extra share. It logically follows that if the sons supports equally, they shall equally inherit. Whoever, being son, does not support his parents in need of support, shall not inherit, even though he is the youngest son; (vi) In case of a rich father who needs no financial support, all sons will inherit, but the younger son would get one extra share. For Example, if there are two sons the properties will be divided in three equal shares and two shares will go to the younger son. The spirit behind the extra share perhaps stems from the expectation that youngest son shall live with the parents in their old age and extend emotional support, though not financial; (vii) If a person dies leaving no son, but only wife and daughters, the daughters will inherit, not the wife. Again, the youngest daughter only inherits entire property if she supports her mother fully The same condition applicable to sons shall apply to daughter also (see para 10 of Section 109); (viii) If a person has three sons and the youngest predeceased his father, then on the death of the father the two surviving sons shall inherit the property equally. This is again subject to a rider that among the two who is ready and willing to support the family of the deceased father shall get one extra share. Unlike youngest son, he does not inherit the entire property. The family of the deceased father would mean his widow and daughter who have no right to inherit. A situation may arise when the only son or none of the sons is/are willing to support the mother and sisters. To save such situation it has been provided in second part of para (3) that if, however, the deceased's wife is ready and willing to remain in the house occupying the main bed and discharging, the duties and functions of the mother, nobody should disturb her. But if she tries to dispose of her husband's property, her sons may distribute the properties between themselves. This shows the widow does not inherit, but has only a right to enjoy the properties of her husband during her life time. 17. The law thus understood makes it clear that when Dahrawka died, his only son Thanhnuna automatically inherited the property in accordance with customary law noticed above. This shows the widow does not inherit, but has only a right to enjoy the properties of her husband during her life time. 17. The law thus understood makes it clear that when Dahrawka died, his only son Thanhnuna automatically inherited the property in accordance with customary law noticed above. The said law does not recognize any right of the widow of Dahrawka to inherit except a limited right to enjoy the property during her life time. The agreement in question between her and her husband appointing each other as their heir in 1927 being contrary to Section 109(2) which provides that no Mizo can appoint a person to be his heir, has no relevance to decide the question of inheritance in the present case. No doubt in 1996, before his death Thanhnuna considered it necessary to obtain heir-ship certificate and rectify the record of right so that in the event of his death his wife and daughters were not deprived. He died before his application for heir-ship certificate could be disposed of. The case was dismissed due to his death and the prayer of his widow to restore the case was also dismissed. But, in view of the legal position noticed above non-issue of heir-ship certificate cannot have any effect on the right of inheritance of Thanhnuna who definitely and automatically, by operation of law, inherited the properties in dispute left by his father which was subject to a limited right of his mother to possess and enjoy without any title. The title passed to him automatically on his father's death on 5.3.1978. Heir-ship certificate does not confer title, it only recognizes the person who has inherited. So it has no relevance on the question of inheritance which is to be strictly decided in accordance with the Mizo Customary laws. Both the courts below have committed error by proceeding from the wrong promise that as no heir-ship certificate could be issued in favour of Thanhnuna he did not inherit the properties of his father. This is completely a misconceived notion. It is thus held that with the death of Dahrawka on 5.3.1978 his only son Thanhnuna inherited the properties covered by LSC No. AZL 56 of 72 to the exclusion of others and his prayer for heir-ship certificate in 1996 is nothing but to up date and modify the record of rights. This is completely a misconceived notion. It is thus held that with the death of Dahrawka on 5.3.1978 his only son Thanhnuna inherited the properties covered by LSC No. AZL 56 of 72 to the exclusion of others and his prayer for heir-ship certificate in 1996 is nothing but to up date and modify the record of rights. The widow mother had the limited right to enjoy the property. She had enjoyed till her death, though ownership remained with her son. As Thanhnuna came to be the owner of the said property to the exclusion of others, with his death his two daughters inherited the same, as Thanhnuna had no son. Again the youngest daughter inherits the property if she supports her mother, else both the daughters would inherit. This Court is not, however, called upon to delve into any question in this proceeding relating to rights of the two daughters. 18. As regards the agreement executed in 1927 between Dahrawka and his wife Kaithuami it may be reiterated that at that time the properties in dispute were not acquired by Dahrawka. There is no recital in the said agreement that all properties which would be acquired in future would also be inherited by them mutually, to the exclusion of even their children. It has been seen above, the said agreement being contrary to Section 109(2) of the Mizo Customary Law cannot be said to be a legal document to run counter to the aforesaid personal law. In other words that agreement is legally invalid and, therefore, cannot have any relevance for deciding the question on inheritance. 19. For the reasons and discussions aforementioned this second appeal has merit and the same is allowed setting aside and quashing the judgment and the order of the courts below. It is hereby declared that the properties covered by LSC No. AZL 56 of 72 of P.S. Dahrawka was inherited by his only son Thanhnuna on 5.3.1978 when Dahrawka died, and after the death of Thanhnuna on 16.2.1996 his two daughters inherited the said properties to the exclusion of others. Consequently, the cross objection preferred by the Respondents herein having no merit is hereby dismissed. No cost. Appeal allowed