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2013 DIGILAW 407 (GAU)

Lalchhuana v. Romawii and Ors.

2013-06-13

ANIMA HAZARIKA

body2013
Anima Hazarika, J. The instant appeal is preferred under Section 17(2)(b) of the Mizoram Civil Courts Act, 2005 (Mizoram Act No. 11 of 2005) challenging the appellate judgment and order dated 26.4.2012 passed by the Court of Senior Civil Judge No. 1, Aizawl District, Aizawl, Mizoram in RFA No. 13 of 2008, thereby dismissing the appeal and affirming the judgment and order dated 25.2.2008 passed by the Court of Magistrate, Subordinate District Council Court, Aizawl in HC Case No. 464 of 2000. I have heard Mr. SS Dey, learned counsel assisted by Mr. M Nath, learned counsel appearing for the appellant. Also heard Mr. M. Zothankhuma, learned Senior counsel assisted by Mr. Lalfakawma, learned counsel appearing for the respondents. 2. The brief facts leading to this appeal may be summarized as under:- The petitioner Mr. Lalchhuana (appellant herein) had filed an application before the Subordinate District Council Court, Aizawl praying for issuance of Heirship Certificate in his favour in respect of landed property covered under LSC No. 57/1969 originally belonging to his father late Sh. Nghaka. The said application was filed on 31.10.2000 and registered as HC Case No. 464/2000. It is the case of the petitioner (appellant herein), that his late father was duly settled with the plot of land where he had constructed house building which he occupied along with the family members of the appellant till his death on 15.3.1997. The death certificate issued by the Registrar of Birth and Death is also annexed with the said petition. The petitioner stakes his claim on the ground that as per the time honoured Mizo Customary Law of inheritance, the petitioner being the youngest surviving son of his late father who had maintained him till his death except for the period when he was staying with Smti Lalzikpuii at Durtlang Hospital Compound for medical treatment the petitioner has every right to inherit the landed and other properties covered by LSC No. 57/1969. It is also pleaded that during his lifetime, late Nghaka had constantly told the petitioner that he being the youngest son shall have the right of inheritance. However, the filing of the application of heirship was necessitated on the production of a document by the opposite parties claiming the same to be the last Will and testament of late Sh. It is also pleaded that during his lifetime, late Nghaka had constantly told the petitioner that he being the youngest son shall have the right of inheritance. However, the filing of the application of heirship was necessitated on the production of a document by the opposite parties claiming the same to be the last Will and testament of late Sh. Nghaka by which the opposite parties along with their respective husbands started taking possession of the landed property without permission of the petitioner. The petitioner also being posted at Agartala at that point of time could not file appropriate petition for heirship immediately. Further pleaded case of the petitioner is that the opposite party No. 1 was staying in a part of the suit land and he may continue to live as such as long as he desires. As regards opposite party Nos. 2 and 3, it is stated that both of them are married daughters of late Sh. Nghaka who are staying separately with their respective husbands in their own houses. As regards opposite party No. 4, the petitioner states that as she is separated from her husband and does not have any issue and had not acquired any property, the petitioner considers it his duty to accommodate her in the house of the late father Sh. Nghaka. 3. The opposite parties (respondents herein) on receipt of notice appeared before the learned trial Court by filing their common written statement dated 3.09.2001. In the said written statement while disputing the facts stated in the petition it was specifically averred that as per Mizo customary Law youngest son can inherit the properties of the deceased father only where there is no valid will. In the case of late Sh. Nghaka, he having left a will, the properties of late Sh. Nghaka will have to be distributed as per the said will and accordingly, the petitioner does not have any right to inherit the properties left by late Sh. Nghaka by virtue of being his youngest son. At paragraph 16 of the said written statement specific pleading was made to the following effect which may be quoted hereinbelow: .....The main case of the petitioner is that the Annexure 11 to the petition have no any legal status for the purpose of inheritance, inasmuch as the same are not executed as a Will or as a Gift Deed. At paragraph 16 of the said written statement specific pleading was made to the following effect which may be quoted hereinbelow: .....The main case of the petitioner is that the Annexure 11 to the petition have no any legal status for the purpose of inheritance, inasmuch as the same are not executed as a Will or as a Gift Deed. As the said document annexed by the petitioner is a valid Will it has to be probated. Hence, the Ops have no option but to pray for probate of the 'Will' left by the deceased Nghaka in this case itself. (a) That the testator Shri Nghaka died on 15th March 1997 at Aizawl. (b) That the writing annexed as Annexure 'A' is the last 'Will' and testament. (c) That the said 'Will' was duly executed. (d) That the deceased at the time of his death had fixed place of abode and had all the proprieties mentioned in the 'Will' situated within the Jurisdiction of this Court. The written statement contained the following prayer: .......In the circumstances stated above it is prayed by both the O.Ps. that your Honour may be graciously pleased to dismiss the petition submitted by the Petitioner and probate the 'Will'...... Accordingly, opposite parties prayed for probate of the will left by the deceased Nghaka. 4. The aforesaid HC Case No. 464 of 2000 was heard and decided by the learned Magistrate, Subordinate District Council Court, Aizawl by the judgment and order dated 25.2.2008 inter alia holding that the will dated 19.10.1996 was valid and genuine and accordingly, the probate of the said will left by late Pu Nghaka was granted. It was further ordered that the Heirship Certificate shall be issued in favour of parties in accordance with the distribution of properties made in the will. 5. The judgment and order dated 25.2.2008 so passed by the learned trial Court was carried to appeal by the petitioner in the Court of Senior Civil Judge-1, Aizawl district vide RFA No. 13 of 2008. After hearing the parties, the First Appellate Court vide judgment and order dated 26.04.2012 dismissed the appeal holding the same to be devoid of merits. The judgment and order dated 25.2.2008 so passed by the learned trial Court was carried to appeal by the petitioner in the Court of Senior Civil Judge-1, Aizawl district vide RFA No. 13 of 2008. After hearing the parties, the First Appellate Court vide judgment and order dated 26.04.2012 dismissed the appeal holding the same to be devoid of merits. While reciting the facts and discussing the evidence of defence witnesses, the appellate Court concurred with the findings of the learned trial Court holding that the intention of the deceased testator being very much clear in the will, the Court was in no position to declare the said will non est. 6. Mr. Dey, learned counsel appearing for the appellant has attacked the trial Court judgment as well as the First Appellate Court judgment on the following counts:-- (a) During the period of trial as well as first appeal, the provisions regarding inheritance of properties amongst the Mizos by way of "Will" was governed under the statutory provisions of Mizo District (Inheritance of Property) Act, 1956. Section 9 of the said Act specifically provides that "Probate shall be granted only to an executer appointed by the 'Will'", in the instant case the Will having not appointed any executor and none of the Opposite Parties also having been appointed as executors of the Will, the Trial Court was in apparent error of law in granting Probate to the Will. (b) Secondly, a Probate of Will can be granted only in terms of a petition made to the Court as per Section 17 of the Mizo District (Inheritance of Property) Act, 1956 which provides as hereunder: .....Application for probate with the "Will", annexed, shall be made by a petition distinctly written in the language generally used in proceedings before the application is made, and stating- (a) The time of the testators death, (b) That the writing annexed is his last "Will" and testament, (c) That is duly executed. (d) The amount of assets which are likely to come to the petitioners hand. (e) That the petitioner is the executor named in the "Will". (f) That the deceased at the time of his death had a fixed place of abode or had some property situated within the jurisdiction of that Court. (d) The amount of assets which are likely to come to the petitioners hand. (e) That the petitioner is the executor named in the "Will". (f) That the deceased at the time of his death had a fixed place of abode or had some property situated within the jurisdiction of that Court. The Probate having been granted even without any petition being filed under Section 17, the learned Trial Court proceeded illegally in granting Probate on the basis of prayer made in the Written Statement of the Opposite Parties, inasmuch as, even the Written Statement did not contain the requisite statements as stipulated under Section 17 of the Mizo District (Inheritance of Property) Act, 1956, more specifically Section 17(e) read with section 9 of the said Act., i.e. the name of any Executor. (c) The prayer for Probate made in the Written Statement before the Trial Court on 3.09.2001 was clearly beyond the prescribed period of limitation of 3 years as mandated under Article 137 of the Limitation Act. (d) The prayer of the Petitioner (Appellant herein) being based on time honoured tenets of Mizo Customary Law of Inheritance mandating inheritance of property of the father by the youngest son, the learned Court below erred in law in not allowing the heirship certificate to the Petitioner who was admittedly the youngest son of Late Sh. Nghaka. 7. Apart from the above specific issues of law, the learned counsel for the appellant has also sought to challenge the First Appellate Judgment as well as the Trial Court judgment on the grounds of non-appreciation of evidence on record as well as for laying credence on the Will which according to the Appellant is unable to evoke judicial confidence. 8. Mr. Dey, learned counsel for the appellant has brought the pointed attention of the Court to the provisions of Section 9 as well as Section 17(e) of the Mizo District (Inheritance of Property) Act, 1956 which specifically mandate that Probate of a Will can be granted only to an Executor who must be specifically named in the petition for Probate before the Court where such petition for Probate is made. Neither the document claimed as Will of Late Sh. Nghaka nor the Written Statement of the Opposite Parties which was apparently treated to be a Petition for Probate had any mention regarding the name of any Executor. Neither the document claimed as Will of Late Sh. Nghaka nor the Written Statement of the Opposite Parties which was apparently treated to be a Petition for Probate had any mention regarding the name of any Executor. Hence, even assuming that in the absence of a Petition for Probate having been preferred before the Court, the Written Statement of the Opposite Parties could be treated to be a Counter Claim and Petition for Probate by the Opposite Parties, the Probate could not have been granted in the absence of compliance of the mandates of Section 9 and 17(e) of the Mizo District (Inheritance of Property) Act, 1956. 9. Further, referring to a judgment of this Court in L. Biakchhunga v. State of Mizoram & Ors. reported in (2006) 3 GLT 785: (2006) 2 GLR 610, it was argued that the Limitation Act, 1963 became enforceable in the territories constituting the erstwhile Mizo districts on its elevation to statehood and for all intent and purposes the law of limitation governs the instant case at hand. The opposite parties having admittedly in knowledge of dates of both the alleged Will and the date of the death of Late Sh. Nghaka, their claim for probate filed by way of Written Statement dated 3.09.2001 was clearly beyond the prescribed period of limitations of three years as mandated under Article 137 of Limitation Act, 1963. Placing reliance on a recent judgment of this Court in Kamakhya Prasad Gupta & Anr. v. Jibon Lal Gupta reported in, 2011 (1) GLT 435 : (2010) 6 GLR 467 in respect of probate, it was argued that the mandate of three years time limit fixed by Article 137 applies to all petitions/applications which may be filed before any Civil Court under any enactment for which no period of limitation is prescribed under the said enactment. Hence, as has been held in paragraph 18 of the said judgment"...there can be no escape from the conclusion that an application for probate shall also be made, under the Limitation Act, 1963 within a period of three years from the date when the right to apply accrues". Hence, as has been held in paragraph 18 of the said judgment"...there can be no escape from the conclusion that an application for probate shall also be made, under the Limitation Act, 1963 within a period of three years from the date when the right to apply accrues". As per Section 5(4) of the Mizo District (Inheritance of Property) Act, 1956 the cause of action for filing a Petition for Probate having arisen w.e.f. the date of death of the testator of the Will, the prayer for probate contained in the written statement dated 3.09.2001 was clearly beyond the prescribed period of limitation of 3 (three) years; the admitted date of death of the testator being 15.03.1997. 10. On the question of right of inheritance of the property of the father by his youngest son under Mizo Customary law, Mr. Dey learned counsel asserts that the said Customary law although not codified, finds place in the well accepted chronicles written by Lt. Colonel J. Shakespear in his "The Lushei Kuki Clans" published by Tribal Research Institute, Department of Art & Culture, Aizawl, Mizoram. As regards the customary law of inheritance amongst the Lushei clans, applicable on Mizo Tribe, attention has been drawn to the following lines appearing at Page 53 of the book: ... The general rule is for the youngest son to inherit, but occasionally the eldest also claims a share. With chiefs it is usual for each son, as he comes to a marriageable age, to be given a certain number of households and allowed to set up a village of his own, but the youngest generally remains with his father, and inherits his village and his property. Analogous reference on the subject of inheritance under Mizo Customary law has been made in the celebrated work of N.E. Parry, I.C.S. in his book "A Monograph on Lushai Customs & Ceremonies" published by Tribal Research Institute, Department of Art & Culture, Aizawl, Mizoram. Specific reference has been made of the following at Pages 83 and 86 of the said book: 5. PA ROKHAWM.--This is inheritance from a father. A man's direct heirs are his sons and if he has several sons the youngest son, who is called the fatlum, is regarded as the formal heir. Specific reference has been made of the following at Pages 83 and 86 of the said book: 5. PA ROKHAWM.--This is inheritance from a father. A man's direct heirs are his sons and if he has several sons the youngest son, who is called the fatlum, is regarded as the formal heir. In actual practice, however, a man's property is divided among all his sons unless anyone of them has quarreled with and separated entirely from him, in which case he would have no claim. Very often a father divides his property among his sons before he dies and when this is done the father's division must be accepted. The youngest son is treated as the heir because he has to look after his parents in their old age and lives with them. If he has failed in this duty he cannot claim the privileges of the youngest son, when the property is divided up. The youngest son as the formal heir gets first choice of the articles he wants out of the estate and say there were a gun, some mythuns and some cows to be divided they will be divided into shares and the youngest son can choose which he prefers. If there is cash the youngest son would get two shares to one share of each of his brothers.... 10. ZAWNCHAWP ROKHAWM.--This is very like inheritance by will and is very rare. Only a man with no relations at all can devise his property by will. A man without any relations at all, when he thinks his death is approaching, usually selects a man to appoint as his heir and the man so appointed will come and live in the house of the man who has made him his heir and will inherit his property on his death. The appointed heir must arrange for the funeral of the man from whom he has inherited. 11. Mr. Zothankhuma, learned Senior Counsel appearing for the Respondents has also laid elaborate arguments in support of the claim of the Respondents/Opposite Parties. On the question of maintainability of the Will, it is submitted that a written Will of a testator will always supersede the tenets of uncodified customary law. The Will having been genuinely drafted by the testator, according to Mr. On the question of maintainability of the Will, it is submitted that a written Will of a testator will always supersede the tenets of uncodified customary law. The Will having been genuinely drafted by the testator, according to Mr. Zothankhuma, the Will along with its Appendix and Sketch Map is sufficient to arouse judicial confidence entailing in the order of Probate as granted by the learned Trial Court and affirmed by the First Appellate Court. It is the further case of the Opposite Parties/Respondents that the technical objections raised on the grounds of non-compliance of Section 9 and 17(e) of the Mizo District (Inheritance of Property) Act, 1956 are irrelevant and without any force in view of the finding of genuineness of the Will recorded by the Courts below. He further asserts that law of limitation is not applicable and the ratio of L. Biakchhunga (supra) has been impliedly nullified by at least two later judgments of this Court in RSA No. 5/2005 (H. Sapliankunga v. State of Mizoram) and RSA No. 11/03 (Ramthlengliana & Ors v. Secretary, Revenue Department, Government of Mizoram). In RSA No. 5/05 which was disposed of vide judgment dated 19.8.2005, this Court while taking recourse to the Notification dated 14.03.1966 and the law laid down in the case of State of Meghalaya v. William Mynsong reported in 1987 (2) GLR 221, it was held that the ratio of the said case applied to the State of Mizoram also. In the next case, i.e. RSA No. 11/03 in the judgment and order dated 7.04.2005 by taking recourse to the list of Central Acts which were applicable prior to the attainment of Statehood by Mizoram, it was held that the Indian Limitation Act was not in force in the state of Mizoram. Further, placing reliance on the two judgments of Apex Court in N. Kamalam (Dead) & Anr. v. Ayyasamy & Anr. reported in : (2001) 7 SCC 503 and Mahesh Kumar (D) By Lrs. v. Vinod Kumar & Ors. in Civil Appeal Nos. 7587-7588 of 2004 disposed of on 13.3.2012, learned Senior counsel asserts that the appellant's reliance on technicality cannot be allowed to defeat the cause of substantive justice. 12. I have gone through the records of the proceedings of the lower Courts as well as other materials on record. v. Vinod Kumar & Ors. in Civil Appeal Nos. 7587-7588 of 2004 disposed of on 13.3.2012, learned Senior counsel asserts that the appellant's reliance on technicality cannot be allowed to defeat the cause of substantive justice. 12. I have gone through the records of the proceedings of the lower Courts as well as other materials on record. Having considered the submissions rendered on behalf of the contesting parties, I proceed to decide the issues in the following paragraphs. 13. As regards applicability of Indian Limitation Act, 1963 in the State of Mizoram, I have given my anxious thoughts and hence arrived at the following findings:-- The judgment and order dated 19.08.05 of this Court did not have the benefit of the thought process and reasoning laid down in the case of L. Biakchhunga (supra). The other judgment dated 7.04.05 obviously could not have any reference of L. Biakchhunga case as the judgment in the said case was passed on 1.08.2005. In the said case i.e. L. Biakchhunga, this Court while drawing a genology of the history of applicability of Indian Limitation Act had arrived at a specific finding that the aforesaid notification dated 14.03.1966 having been confined to the then tribal areas under Sixth Schedule to the Constitution of India, the notification did not continue its application in the territory comprising the Union Territory of Mizoram and now the State of Mizoram while differing with the law laid down in the case of Mynsong (supra) and concurring with the earlier judgment of Lal Chawimawia & Ors. v. State of Mizoram reported in, 1999 (2) GLT 410 on this point, it was held in L. Biakchhunga (supra) as follows: 30. Having regard to the determinate unambiguous and unequivocal language employed in the extent clause of the 1963 Act, in my view, there is no scope what so ever to suppose that the interdiction on the applicability thereof occasioned by the 1966 notification was intended to be continued in the territories comprising the Union territory of Mizoram and now the State of Mizoram. In my considered view, therefore, with the elevation of the Mizo District to the Union territory of Mizoram, the 1966 notification ceased to have any force vis-à-vis the areas comprising the erstwhile Mizo District and the 1963 Act being a Central Legislation in absence of any other impediment as conceived of in the Sixth Schedule to the Constitution of India or otherwise applied proprio vigore without any reservation to the areas now forming the State of Mizoram. In other words, the 1963 Act, thus, became enforceable in the territories constituting the erstwhile Mizo District and now the State of Mizoram. The non-inclusion of the 1963 Act in the list, of Central Acts applicable to the State of Mizoram and the inclusion thereof in the list of such Acts, applications whereof are barred, being traceable only to the 1966 notification are inconsequential in the face of the constitutional and historical background of the relevant legislations noticed hereinabove. The enactment of the 1963 Act is an exercise of the legislative powers vested in the Parliament and having regard to the extent of its application any fetter on its applicability in the State of Mizoram in absence of any restriction as conceived of under the Sixth Schedule or otherwise would amount to unauthorized truncation of such constitutional empowerment. The contention of the learned counsel for the appellant based on the Explanation of "tribal areas" appearing under Section 1(3) of the Civil Procedure Code is of no consequence as the same is in the context of defining the limits of the applicability of the Code and no analogy can be drawn for resolving the issue in hand. Similarly reference to Section 10(26) of the Income-tax Act, 1961, is also of no relevance vis-à-vis the question posed. The embargo contained in Article, 371G vis-à-vis the State of Mizoram is also not attracted qua the 1963 Act in view of the subject-matter of the statute as well as the contextual facts. Further, regarding applicability of the Indian Limitation Act, 1963 in the State of Nagaland also, this Court in the abovementioned case held as follows: 31.....the 1966 notification, however did not present itself to be considered by this Court in Temjankaba and others V. Temjanwati and others, (1991) 2 GLR 200, where the question of applicability of the 1963 Act to the State of Nagaland fell for consideration. This Court having regard to the extent clause of the 1963 Act answered it in the affirmative observing that the State of Nagaland being a part of India, the Act was enforceable there..... 14. I am in respectful agreement with the reasons set out in the judgment in L. Biakchhunga (supra) ultimately culminating in the affirmative answer regarding applicability of the Indian Limitation Act 1963 in the State of Mizoram. 15. The next cardinal issue is that of right of inheritance of the deceased father's property claimed by the Petitioner/Appellant by virtue of his being the youngest son of the father vis-à-vis the right of the Opposite Parties claimed under the Will dated 19.10.1996. Concept of probating a Will being a creature of statute, a Will can be Probated only in terms of the codified provisions of law. In the case at hand, Probate was prayed by the Opposite Parties under the mandates of the Mizo District (Inheritance of Property) Act, 1956. It is contended by the Opposite Parties that in terms of the contents of Para 109 of "Mizo Hnam Dan", the right of inheritance by way of customary law will stand superseded in the presence of a valid Will. It is an accepted proposition of law that the last Will or testament of a deceased will gain supremacy provided it has the legal sanctity and probative value. Under the scheme of the Mizo District (Inheritance of Property) Act, 1956, merely by virtue of surpassing the test of "Invalidity" as provided under Section 8 thereof, a Will cannot be Probated. The Court vested with the jurisdiction to grant a Probate has to further satisfy itself as regards other legal requirements being fulfilled before a Probate is granted. Section 5(4) of the Act mandates that a Will shall be taken to have effect from the death of the testator. Hence, the right to apply for a probate accrues on and w.e.f. the date of death of the testator. The mandate of Article 137 of the Limitation Act, 1963 allows a claim for probate to be made within three years thereof. The ratio of L. Biakchhunga (supra) is equally applicable as is already held above. Hence, the right to apply for a probate accrues on and w.e.f. the date of death of the testator. The mandate of Article 137 of the Limitation Act, 1963 allows a claim for probate to be made within three years thereof. The ratio of L. Biakchhunga (supra) is equally applicable as is already held above. I am also in respectful agreement with the law laid down on this issue, in Kamakhya Prasad (supra) and hold that the claim for probate, made by way of Written Statement dated 3.09.2001 is barred by the law of Limitation; the admitted date of death of the testator Late Sh. Nghaka being 15.03.1997 and the same being admittedly within the knowledge of the party claiming Probate. This bar of the law of Limitation has taken away the power of the Court to consider any grant of Probate and on that count the trial judge proceeded absolutely without any jurisdiction by entertaining the claim of Probate. 16. Added to this are the issues of non-maintainability of the claim of Probate for noncompliance of the requirements of Sections 9 and 17(e) of the Mizo District (Inheritance of Property) Act, 1956 which by the very tenor of expression used in those sections render the requirements mandatory. Insistence on compliance of these mandatory requirements are not technical or hyper-technical; rather in the absence of the same the claim for Probate itself will be rendered void. The ratio of N. Kamalam and Mahesh Kumar (supra) as rendered by the Apex Court and pressed by the Opposite Parties are wholly inapplicable in the present case. It is not a question of satisfying the conscience of the Court regarding the authenticity of any Will, it is rather the fulfillment of the requirements of the Statute under which a party claims and the Court derives its power to grant Probate. It is well settled that the law Courts have to respond to the need of the society and not be bogged down by mere technicalities. But to be justice oriented is also to act in terms of the legislative mandates and to administer justice in terms of the statutory mandates framed by the legislature and not in violation of the same. But to be justice oriented is also to act in terms of the legislative mandates and to administer justice in terms of the statutory mandates framed by the legislature and not in violation of the same. The substantial violation of the law of limitation as well as the statutory mandates of the Mizo District (Inheritance of Property) Act, 1956, as discussed above, have rendered the claim of the Opposite Parties/Respondents absolutely non est in the eyes of law thereby rendering the judgments and order in Appeal granting Probate illegal and void. 17. In the absence of the validity of the Probate, the claim of the Applicant based on his pleaded right of inheritance has now to be answered. It is true, as contended by the Respondents/Opposite Parties that customary right of inheritance will survive only in the absence of a valid Will. In the instant case, the claim of Probate of Will is clearly non-maintainable, as already held above. Turning to the quoted tenets of Mizo Customary Law regarding right of inheritance of the youngest son, in the absence of anything contrary to what has been pointed out by the learned counsel for the Appellant, I am inclined to hold that as a matter of general rule of custom the youngest son has a right to inherit the property of his deceased father. Learned Sr. Counsel for the Respondents has also produced a compilation of Mizo customary law made by the Mizo District Council, termed as "Mizo Hnam Dan" which also contains similar provision regarding inheritance by the youngest son vide Clause No. 109 (2) & (3). The fatlum, i.e. the youngest son has a right to be regarded as formal heir of his father's property provided the father has not already divided his properties before he dies and such division has been accepted by all. The youngest son or fatlum is regarded as the formal heir of the estate of his deceased father and the first choice of the articles of his deceased father because he is supposed to look after his parents in their old age. The learned Courts below have not recorded any findings to bring home any instance of failure of the Petitioner as the youngest son in discharge of his duties towards his father in his lifetime. The learned Courts below have not recorded any findings to bring home any instance of failure of the Petitioner as the youngest son in discharge of his duties towards his father in his lifetime. No evidence was adduced by the respondents during trial stage as well as in the first appellate stage to that effect, far less any judicial finding. Therefore, the denial of prayer made in the petition by the trial judge and affirmation of the same in the judgment of the first appellate Court cannot be sustained in law. The appellant being the youngest son is entitled to inherit the property left behind by his deceased father under the aforesaid circumstances. 18. The Appeal is allowed on contest in above terms. The judgment and order dated 26.4.2012 passed by the Court of Senior Civil Judge No. 1, Aizawl District, Aizawl, Mizoram in RFA No. 13 of 2008, thereby dismissing the appeal and affirming the judgment and order dated 25.2.2008 passed by the Court of Magistrate Subordinate District Council Court, Aizawl in HC Case No. 464 of 2000 is set aside. 19. Now, so far as prayer for remanding the case for fresh disposal is concerned, I am not inclined to remand the case to the trial Court for fresh disposal in accordance with law after 13 (thirteen) years of institution of the HC Case No. 464/2000. While exercising the jurisdiction of the appellate Court, I have assessed the evidence on record. Admittedly, the appellant is the youngest son of his father. According to the Mizo Customary law, the appellant being the youngest son of his father late Sh. Nghaka is entitled to the property left by his father. Since the defence plea of existence of a Will has been discarded, there is no impediment to direct for issuance of Land Settlement Certificate in favour of the appellant. Accordingly, it is ordered that the appellant being the rightful heir in respect of the land and property under LSC No. 57/1969 left behind by his father, he shall now be entitled to mutate the LSC No. 57/1969, i.e., the estate of his deceased father in his name. 20. Accordingly, it is ordered that the appellant being the rightful heir in respect of the land and property under LSC No. 57/1969 left behind by his father, he shall now be entitled to mutate the LSC No. 57/1969, i.e., the estate of his deceased father in his name. 20. However, taking note of the admission made by the appellant that on human consideration Respondent No. 4, Smti Thandingliani can stay in the premise during her lifetime, it is accordingly ordered that the appellant shall allow the said Respondent No. 4 to live amicably in a part of the suit premises, if she so desires. 21. There shall be no order as to costs. Send down the lower Court records. _