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2016 DIGILAW 101 (GAU)

Lalremmawii v. Vanlalngheta

2016-02-12

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT AND ORDER : Michael Zothankhuma, J. 1. Heard Mr. A.R. Malhotra, learned counsel appearing for the petitioners in W.P. (C) No. 79 of 2012 and W.P. (C) No. 80 of 2012. Also heard Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. H. Lalmalsawmi, learned counsel appearing for the respondent in W.P. (C) No. 79 of 2012 and W.P. (C) No. 80 of 2012. 2. Both the petitions are being disposed of by this common Judgment and Order. 3. The petitioners in W.P. (C) No. 79 of 2012 and W.P. (C) No. 80 of 2012 are sisters of the respondent in both the above cases. 4. The brief facts of the case is that one Shri. Rohmingliana was the owner of land covered by LSC No. AZL 116/1967. Rohmingliana had many children. However, for deciding the issue at hand, this Court will reflect only 4 of the children of Rohmingliana as they are necessary for adjudication of the present case. The four children are Hrangzika, Lalremmawii (petitioner in W.P. (C) No. 79/2012), Laldingliani (petitioner in W.P. (C) No. 80/2012) and Vanlalngheta (respondent in W.P. (C) No. 79/2012 and W.P. (C) No. 80/ 2012). 5. Shri Rohmingliana died on 24.02.1993. However, before his death Rohmingliana gifted the land covered by LSC No. AZL 116/1967 to his son Hrangzika. Hrangzika wrote a Will dated 29.06.2004 which is to effect that the major portion of the land and building in LSC No. AZL 116/1967 would be inherited by the respondent, while the portion occupied by Lalremmawii (petitioner in W.P. (C) No. 79/2012) along the side of the road and the land below the main house would be inherited by Lalremmawii. The Will dated 29.06.2004 is reproduced below: "I, Hrangzika, S/o Rova (L), Zarkawt am not keeping good health and in case I die, I put the LSC No. AZL 116 of 1967, which is in my name along with the building standing within it and being constructed therein, in the hands of my younger brother Vanlalngheta. He will look after the land and building as he deems fit and has the authority for the same. In case I die, our main house should be built as soon as possible. The portion now occupied by Lalremmawii along the road side and all lands below the main house will belong to Lalremmawii and no one should disturb her. He will look after the land and building as he deems fit and has the authority for the same. In case I die, our main house should be built as soon as possible. The portion now occupied by Lalremmawii along the road side and all lands below the main house will belong to Lalremmawii and no one should disturb her. In case I die my motor Bolero MZ 05-0047 will be looked after Lalremmawii. She will look after it in consultation with Vanlalngheta. My will is drafted by me with great care. This is my last Will and it shall supersede my earlier Wills. This Will is executed by me on 29/6/2004 in the presence of the below mentioned witnesses and I put my signature on it. The above mentioned Will was executed by Hrangzika in our presence and he signed it before my eyes. Sd-29/06/04 (HRANGZIKA)" 6. Hrangzika expired on 16.07.2004. On 28.07.2004, the children of Rohmingliana which included the petitioners, the respondent and another sister Lalrammawii made a family agreement dated 28.07.2004 on the manner in which the land and building covered by LSC No. AZL 116/1967 would be distributed between the parties herein. The said family agreement dated 28.07.2004 was made by the parties herein with the full knowledge that a Will dated 29.06.2004 had been executed by their deceased brother Hrangzika. The agreement dated 28.07.2004 is reproduced below: "AGREEMENT We, Vanlalngheta, Laldingliani, Lalrammawii and Lalremmawii children of Rova(L), Zarkawt have today i.e. 28th July, 2004 made an agreement regarding the properties left behind by our mother and father. 1. The LSC No. AZL 116 of 1967 is in the name of our brother Hrangzika and after his death the ongoing construction within this land shall continue. The road level floor shall be constructed as a shop and shall be divided into two equal sizes. The shop on the southern side will belong to Laldingliani and the shop on the north side will belong to Vanlalngheta. 2. The floor just above the shop will belong to Laldingliani. 3. The floors above the floor belonging to Laldingliani will all belong to Vanlalngheta. 4. The floor below the road level shop will belong to Lalremmawii. 5. The land/LSC will be in the name of Vanlalngheta. 6. In case anyone wants to transfer/sell their share, the written approval of the others is required before the same. 3. The floors above the floor belonging to Laldingliani will all belong to Vanlalngheta. 4. The floor below the road level shop will belong to Lalremmawii. 5. The land/LSC will be in the name of Vanlalngheta. 6. In case anyone wants to transfer/sell their share, the written approval of the others is required before the same. If due to some reasons it is required to transfer/sell then if any of the siblings wants to buy/can buy then it should be sold to the sibling. 7. The motor Bolero MZ 05/0047 belonging to Hrangzika will be looked after by Vanlalngheta and Lalremmawii and its earnings will be deposited in the bank. This agreement is made in accordance with the wishes of our brother Hrangzika, as he used to say during his lifetime. In case it is required to be altered it will be upto Vanlalngheta." 7. The petitioners' counsel Mr. A.R. Malhotra submits that despite the family agreement dated 28.07.2004 having superseded the Will dated 29.06.2004 (which has not been probated) and though the properties were to be distributed as per the family agreement, the respondent quietly and without the knowledge of the petitioners and other siblings submitted an application dated 19.08.2004, for grant of Heirship Certicate in respect of the land and building covered by LSC No. AZL 116/1967 before the Magistrate 1st Class, Sub-District Council Court, Aizawl. The application for Heirship Certificate is reproduced below: "I request you to consider my application favourably. Our eldest brother Hrangzika, S/o Rova (L), Zarkawt had died on 15/7/04. He did not have any wife or children. I am the youngest son amongst our siblings and he used to rely in me for everything. As he has died I request you to issue a Heirship Certificate in my favour for the LSC No. AZL 116 of 1967 which is in his name and for all property inside it, so that I can inherit the same. I am enclosing the LSC Xerox copy, Will and Death Certificate." 8. The petitioners' counsel submits that the Court of Magistrate 1st Class, Sub-District Council Court, Aizawl disposed of the respondent's application for Heirship Certificate on the same day, i.e. 19.08.2004 in H.C Case No. 489/2004. The petitioners' counsel submits that the Order dated 19.08.2004 granting Heirship Certificate was not signed by the Magistrate. The petitioners' counsel submits that the Court of Magistrate 1st Class, Sub-District Council Court, Aizawl disposed of the respondent's application for Heirship Certificate on the same day, i.e. 19.08.2004 in H.C Case No. 489/2004. The petitioners' counsel submits that the Order dated 19.08.2004 granting Heirship Certificate was not signed by the Magistrate. However, the Magistrate 1st Class issued the Heirship Certificate No. 489/2004 declaring the respondent as legal heir of his deceased brother Hrangzika in respect of LSC No. AZL 116/1967 in pursuance to the unsigned order dated 19.08.2004. 9. The petitioners' counsel submits that both the petitioners came to know some time in the year 2010 that the respondent had surreptitiously W.P. (C) No. 79 of 2012 & W.P. (C) No. 80 of 2012 Page 8 of 18 taken out an Heirship Certificate without their knowledge. Thereafter, the petitioners filed Review Case No. 6/2010 and 15/2010 in the Sub-District Council Court, Aizawl against the issuance of the Heirship Certificate No. 489/2004. 10. The Sub-District Council Court, Aizawl vide its Judgment & Order dated 09.07.2012 dismissed both the review petition Nos. 6/2010 & 15/2010 on the ground that the review petition was barred by limitation. The further ground of rejection of the review petitions was that as per the family agreement made between the parties, the respondent had been given the full right to inherit the property, if the respondent wished to do so. The Review Court dismissed the review petition also on ground that the review petitioners had no locus-standi and also on the ground that the petitioners herein, who were already married and living with their husbands had no right to inherit ancestral property as per Mizo Customary Law. 11. Being aggrieved with the judgment and orders dated 9.7.2012 passed in Review Petition No. 6/2010, Review Petition No.15/2010 and the issuance of Heirship Certificate No. 489/2004 on 19.8.2004, the petitioners have approached this Court by way of this petition Under Articles 226/227 of the Constitution. The petitioners' counsel submits that the Sub-District Council Court could not have issued the Heirship Certificate in favour of the respondent as no notice was issued to the petitioners, who were also having a direct interest in the land, inasmuch as, the Will dated 29.6.2004 which was a part of the application for the Heirship Certificate, had mentioned the name of the petitioners Lalremmawii, who was to inherit a portion of the land. The petitioners' counsel also submits that the order dated 19.8.2004 passed by the Sub-District Council Court, in pursuance to which, the Heirship Certificate No. 489/2004 had been issued, had not been signed by the Magistrate presiding over the case. The further submission of the petitioners' counsel is that the respondent hid material facts from the Court while applying for Heirship Certificate as the respondent did not make mention of the family agreement. He submits that this amounts to playing a fraud upon the Court and in his support, the petitioners' counsel has relied upon the judgment of the Apex Court in the case of Union of India and Others v. Ramesh Gandhi reported in (2012) 1 SCC 476 to submit that the Heirship Certificate issued to the respondent should be set aside. 12. The petitioners' counsel also submits that though the unsigned order dated 19.4.2004 of the Sub-District Council Court states that the respondent prayed to the Court to probate the said Will and issue Heirship Certificate accordingly, the Will was not probated. The petitioners' counsel submits that in view of the fact that the Will was not probated, the Sub-District, Court could not have issued the Heirship Certificate. The petitioners' counsel also submits that the judgment and order dated 9.7.2012 passed by the Review Court has to be set aside on the ground that the Review Court had gone into issues which were not relevant to the facts of the case and has not also not taken into account the issues that were relevant for adjudicating the case. 13. The petitioners' counsel submits that this Court has jurisdiction under Article 226/227 of the Constitution to go into the legality of the Heirship Certificate No. 489/2004 issued on 19.8.2004 and also the judgment and order dated 9.7.2012 passed in Review Petition Nos. 6/2010 and 15/2010. In this regard, the petitioners' counsel has relied upon the case of Surya Dev Rai v. Ram Chander Rai and Others reported in (2003) 6 SCC 675 , Atlas Cycle (Haryana) Limited v. Kitab Singh reported in (2013) 12 SCC 573 and Himalayan Coop. Group Housing Society v. Balwan Singh and Others reported in 2015 7 SCC 373 . 14. Mr. L.H. Lianhrima, learned senior counsel appearing for the respondent submits that he has no bone to pick with the petitioners with regard to the facts of the case. Group Housing Society v. Balwan Singh and Others reported in 2015 7 SCC 373 . 14. Mr. L.H. Lianhrima, learned senior counsel appearing for the respondent submits that he has no bone to pick with the petitioners with regard to the facts of the case. However, the senior counsel submits that the present writ petition having been filed under Articles 226 and 227 of the Constitution, the same is liable to be dismissed as being not maintainable. He submits that no Mandamus can be issued to a private individual who does not have a public duty to do. The respondent's counsel also submits that as there is an alternative remedy available, the present petition under Articles 226/227 should be dismissed. 15. The counsel for the respondent submits that this Court should not interfere with the Heirship Certificate issued to the respondent, inasmuch as, the same was issued by the Sub-District Council Court with the knowledge and consent of the petitioners. The respondent's counsel also submits that the family Agreement has not been proved as a genuine document till today. As such, there is no question of the petitioners relying upon the contents of the family Agreement for a share of the property covered by LSC No. AZL 116/1967. 16. In this regard, Mr. L.H. Lianhrima, learned senior counsel for the respondent has relied upon the judgment of the Apex Court in the cases of (1) Swetambar Sthanakwasi Jain Samiti and Another v. Alleged Committee of Management Sri RJI College, Agra and Others reported in (1996) 3 SCC 11 (2) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others v. V.R. Rudani and Others reported in (1989)2 SCC 691 (3) VST Industries Ltd. v. VST Industries Workers' Union and Another reported in (2001) 1 SCC 298 (4) Shalini Shyam Shetty and Another v. Rajendra Shankar Patil reported in (2010) 8 SCC 329 and (5) Radhey Shyam and Another v. Chhabi Nath and Others reported in (2015) 5 SCC 423 to submit that orders of Civil Courts are not inimitable to a writ petition of certiorari under Article 226 and that a Writ petition of mandamus does not lie against a private person not discharging any public duty. The respondent's counsel has also relied upon the judgments of the Apex Court in Shiba Shankar Mohapatra and Others v. State of Orissa & Others reported in 2010 12 SCC 471 and Eastern Coalfields Limited. v. Dugal Kumar reported in 2008 14 SCC 295 to state that there being inordinate delay in approaching this Court by way of a writ petition, the petitions are liable to be dismissed on grounds of laches. 17. At this stage, Mr. A.R. Malhotra, learned counsel for the petitioners submits that he does not wish to press the present case under Article 226 of the Constitution and confines his argument to the general power of the superintendence given to the High Court under Article 227 of the Constitution. 18. The respondent's counsel has also submitted that in the case of Shalini Shyam Shetty (Supra), the Apex Court has held that a petition under Article 226 of the Constitution is different from a petition under Article 227 and that High Courts cannot at a drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. He also submits that as there is an alternative statutory mode of redressal, the same should operate as a restraint on the exercise of its power by the High Court. 19. I have considered the submissions of the parties. 20. The present petition of the petitioner is being treated as a petition under Article 227 of the Constitution as the petitioners' counsel has not pressed his arguments under Article 226 of the Constitution. 21. The power of superintendence under Article 227 is discretionary and has to be exercised on equitable principle. The main object of this Article is to keep a strict administrative and judicial control. Now coming to the facts of the case, I find that the respondent was a part of the family agreement dated 28.07.2004. However, the respondent has not made any mention of the family agreement while making an application for issuance of an Heirship Certificate in the Sub-District Counsel Court, Aizawl. In this regard, the Apex Court has held that at para 29 of Union of India v. Ramesh Gandhi (Supra) reported in 2012 1 SCC 476 as follows: "29. However, the respondent has not made any mention of the family agreement while making an application for issuance of an Heirship Certificate in the Sub-District Counsel Court, Aizawl. In this regard, the Apex Court has held that at para 29 of Union of India v. Ramesh Gandhi (Supra) reported in 2012 1 SCC 476 as follows: "29. Coming to the question as to what amounts to securing a judgment by playing fraud in the court, in Chengalvaraya Naidu, this Court categorically held that the non-disclosure of all the necessary facts tantamounts to playing fraud on the courts. In para 6 of the said judgment, it was held as follows: "6........If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party." 22. The other point that has to be noted is that the application for Heirship Certificate was submitted on 19.08.2004 and the Sub-District Council Court issued an order dated 19.08.2004 allowing the application, without any notice to any of the parties and without recording any evidence, even though the Will dated 29.06.2004, which had been superseded by the family agreement dated 28.07.2004 had mentioned the name of their beneficiaries in respect of land covered by LSC No. AZL 116/1967. Further, the order dated 19.08.2004 granting Heirship Certificate in favour of the respondent has not been signed by the Magistrate presiding in the Sub-District Council Court. As such, the Heirship Certificate No. 489/2004 issued in pursuance to the unsigned order dated 19.08.2004 cannot have any validity and is non-est in the eyes of law. There has been gross violation of the principles of natural justice. 23. I also find that the grant of HC No. 489/2004 is bad in its inception for the reasons stated above. 24. The Apex Court in the case of Surya Dev Rai v. Ram Chander Rai & Others reported in 2003 6 SCC 675 has held that the High Courts may step in to exercise its supervisory jurisdiction under Article 227 of the Constitution, if the Sub-ordinate Court has acted in flagrant disregard of law or the rules of procedure or acting in violation of the principles of natural justice, and thereby occasioning failure of justice. 25. 25. In the case of Union of India and Others v. Tantia Construction Private Limited reported in 2011 (5) SCC 697 , the Supreme Court has held that "........it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable." 26. In Para 9 of the review petition submitted by the petitioners in Review Petition Nos. 6/2010 and 15/2010, it is seen that the petitioners have made a mention of the fact that the family agreement dated 28.07.2004 had been executed by the parties and registered as per law. The written objection submitted by the respondent to the review petitions submitted by the petitioners shows that the respondent has kept silent in respect of para 9 of the review petitions. This further implies that the respondent was aware of the execution of a family agreement, in which the respondent was also a party. There is no denial of the existence of the family agreement in the written objection submitted by the respondent to the review petitions submitted by the petitioners. I have also noted the fact that the Will dated 29.06.2004 has not been probated till date. However, the Sub-District Council Court has issued Heirship Certificate No. 489/2004 on 19.08.2004 in the absence of a probated Will. No reason has been given by the Sub-District Council Court as to the basis on which the Heirship Certificate has been issued. The Judgment & Order dated 09.07.2012 passed in Review Petition Nos. 6/2010 and 15/2010 dismisses the review petitions on the grounds of limitation. However, the limitation would start running only from the date the petitioners became aware of the impugned Heirship Certificate and order directing issuance of the Heirship Certificate. In the present case, the order allowing the respondent's application for issuance of Heirship Certificate bears no signature. The Review Court had also referred to the family agreement and the Mizo Customary Law while dismissing the Review Petitions though these issues were not a subject matter in issue in the Sub-District Council Court, Aizawl. 27. In the present case, the order allowing the respondent's application for issuance of Heirship Certificate bears no signature. The Review Court had also referred to the family agreement and the Mizo Customary Law while dismissing the Review Petitions though these issues were not a subject matter in issue in the Sub-District Council Court, Aizawl. 27. The Apex Court in the case of Lily Thomas & Others v. Union of India & Others reported in 2000 (6) SCC 224 , while discussing the meaning of review has held that "it cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before Justice." 28. In the present case, I find that there has been violation of principles of natural justice and normal procedure of law has also not been adhered to by the Sub-District Council Court, Aizawl while issuing Heirship Certificate No. 489/2004. The rejection of the review petition Nos. 6/2010 and 15/2010 on the ground of being barred by limitation suffers from no infirmity. However, this Court cannot lose sight of the fact that the issuance of Heirship Certificate No. 489/2004 seems to has been done by the respondent by playing a fraud on the Court, as it has concealed the existence of the family agreement. This Court cannot sit idle while a fraud is allegedly being perpetrated and the respondent enjoys the fruits of gain acquired by fraud. There is no doubt that an alternative remedy is available to the petitioners. However, this Court has the discretion to entertain the petition even if an alternative remedy is available. As stated earlier, the issuance of the Heirship Certificate No. 489/2004 was allegedly perpetrated by playing a fraud on the Court. In the case of C. Albert Morris v. K. Chandrasekaran and Others reported in 2006 1 SCC 228 , the Supreme Court has held that the right in law exist only and only when it has a lawful origin. In the case of Mangal Prasad Tamoli v. Narvadeshwar Mishra and Others reported in 2005 (3) SCC 422 , the Supreme Court has held that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non-est and will have to be necessarily set aside. In the case of Mangal Prasad Tamoli v. Narvadeshwar Mishra and Others reported in 2005 (3) SCC 422 , the Supreme Court has held that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non-est and will have to be necessarily set aside. In the present case, the Heirship Certificate No. 489/2004 was issued by the Sub-ordinate District Council Court, Aizawl on the basis of an unsigned order dated 19.08.2004. Accordingly, this Court holds that the Heirship Certificate could not have been issued on the basis of an unsigned order. 29. Accordingly, in view of the reasons stated above, this Court is of the opinion that the Heirship Certificate No. 489/2004, impugned judgment and order dated 09.07.2012 passed in Review Petition Nos. 6/2010 and 15/2010 cannot withstand the scrutiny of law. The same are accordingly set aside and quashed. The parties are however given liberty to approach the appropriate Court for declaration of their rights as allowed by law and by impleading necessary parties. 30. The petitions under Article 227 of the Constitution are accordingly allowed.