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2017 DIGILAW 266 (GAU)

Master Zosangpuia v. State of Mizoram

2017-03-01

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Micheal Zothankhuma, J. Heard Mrs. Dinari T. Azyu, learned counsel appearing for the appellant. Also heard Mr. L. H. Lianhrima, senior counsel appearing for the respondent Nos. 5 and 6 and Mrs. Linda L. Fambawl, Government Advocate for the respondent Nos.1 to 4. 2. The appellant by way of this regular second appeal has challenged the judgment and order dated 15.10.2012 passed by the Additional District Judge, Aizawl in RFA No. 26/2011, by which the judgment and order dated 2.5.2011 passed by the Court of Senior Civil Judge-II, Aizawl in Title Suit No. 7/2002 has been set aside. 3. The basic question to be decided in the present case is whether the land, which was settled in the name of Dr. Zokhuma, should be inherited by the appellant or the respondent Nos. 5 and 6. The appellant is the only son of Dr. Zokhuma while the respondent No. 5 is the sister of Dr. Zokhuma. The respondent No. 6, on the other hand, was the father of Dr. Zokhuma. The father of Dr. Zokhuma namely Mr. Thanthianga expired on 21.11.2002 and accordingly the brothers of Dr. Zokhuma namely Hmingdailova and Dr. Lalnghinglova substituted Mr. Thanthianga as Respondent No. 6. 4. This Court had framed the following substantial questions of law vide order dated 4.2.2013: (i) Whether the father of the deceased son can inherit the latter's property to the exclusion of the latter's only son (grandson) in terms of the Mizo Customary Law? (ii) Whether the decision rendered by the learned First Appellate Court while upsetting the findings of the learned trial court are at all based on the evidence and materials available on record? (iii) Whether the suit valuation declared in a suit and acted upon without there being any substantive and meaningful objection can be subsequently varied in an appeal without there being any challenge to that effect? (iv) Whether mutation and transfer of ownership of a plot of land belonging to a person who has since expired be effected without any such valid instrument made as per law. 5. The case of the appellant herein is that respondent No. 6 had given a plot of land to the appellant's father Dr. Zokhuma. The said land was settled in the name of Dr. Zokhuma by the Revenue Department, Government of Mizoram vide LSC No. 188 of 1979. Dr. Zokhuma expired on 1.8.1996. 5. The case of the appellant herein is that respondent No. 6 had given a plot of land to the appellant's father Dr. Zokhuma. The said land was settled in the name of Dr. Zokhuma by the Revenue Department, Government of Mizoram vide LSC No. 188 of 1979. Dr. Zokhuma expired on 1.8.1996. However, prior to his death, Dr. Zokhuma had submitted an application before the Revenue Department requesting that a portion of the land covered by LSC No. 188 of 1979 should be sliced out in favour of his sister Thanzamliani i.e. respondent No. 5. 6. The appellant's counsel submits that during the proceedings for mutating a portion of land covered by LSC No. 188 of 1979, the appellant's father Dr. Zokhuma expired. On the death of Dr. Zokhuma, the father of Dr. Zokhuma i.e. respondent No. 6 submitted an application to the Director of Revenue Department wherein he requested that the land which he had given to his son Dr. Zokhuma should be reverted back into his name. The request by respondent No. 6 was supported by a chit written by the Revenue Minister of that particular period. 7. On 16.12.1996, the Revenue Department partitioned the LSC No. 188 of 1979, which was in the name of Dr. Zokhuma, into four different LSCs, which are as follows: (1) AZL.188 of 1979 in the name of the respondent No. 6 (2) AZL.2255 of 1996 in the name of respondent No. 6 (3) AZL. 2256 of 1996 in the name of respondent No. 5 (4) AZL. 2258 of 1996 in the name of respondent No. 5. 8. The appellant's counsel submits that with the bifurcation of his father's LSC No. 188 of 1979 into four LSCs, the appellant, his elder sister Lalruatfeli and his mother were left without any portion of the property, originally covered by the erstwhile LSC No. 188 of 1979. 9. The appellant's counsel also submits that the appellant and his mother being ignorant of the bifurcation of LSC No. 188 of 1979, they had filed an application praying for heirship certificate on 9.1.1997 in respect of lands in the name of their late father Dr. Zokhuma, i.e. LSC No. 188 of 1979 and LSC No. AZL.2888 of 1986. 10. 9. The appellant's counsel also submits that the appellant and his mother being ignorant of the bifurcation of LSC No. 188 of 1979, they had filed an application praying for heirship certificate on 9.1.1997 in respect of lands in the name of their late father Dr. Zokhuma, i.e. LSC No. 188 of 1979 and LSC No. AZL.2888 of 1986. 10. The appellant's counsel also submits that on filing the Heirship Certificate No. 3 of 1997, the appellant came to learn that his father's LSC No. 188 of 1979 had been bifurcated into four different LSCs and mutated in the names of the respondent Nos. 5 and 6. Accordingly, the appellant preferred Title Suit No. 7 of 2002 against the State Government and the respondent Nos. 5 and 6 in respect of LSC No. 188 of 1979. 11. During the proceeding of Title Suit No. 7 of 2002, Heirship Certificate No. 3 of 1997 was decided by the Court and land covered by LSC No. AZL. 2888 of 1986 was awarded to the appellant and his sister Lalruatfeli. The respondent No. 6 and the appellant's mother were declared to be the guardians of the appellant herein and his sister Lalruatfeli. 12. The appellant's counsel submits that the State respondents did not lead any evidence in Title Suit No. 7 of 2002. He also submits that the undivided LSC No. 188 of 1979 having been settled in the name of his father Dr. Zokhuma as far back as in 1979, the State respondents could not have bifurcated the said LSC into four different LSCs and mutated the same into the names of the respondent Nos. 5 and 6, without there being any authority or consent of Dr. Zokhuma. 13. The appellant's counsel submits that the Trial Court disposed of Title Suit No. 7 of 2002 vide judgment and order dated 2.5.2011 holding that the issuance of the four LSCs in favour of the respondent Nos. 5 and 6 were illegal and it was accordingly set aside. The State respondents were directed to issue a fresh LSC in favour of the appellant and by making a partition for a small portion of the said land in favour of the respondent No. 5 out of the undivided LSC No. 188 of 1979. The appellant's counsel submits that as the appellant's father Dr. The State respondents were directed to issue a fresh LSC in favour of the appellant and by making a partition for a small portion of the said land in favour of the respondent No. 5 out of the undivided LSC No. 188 of 1979. The appellant's counsel submits that as the appellant's father Dr. Zokhuma had wished for a small portion of land covered by undivided LSC No. AZL.188 of 1979, to be bifurcated in the name of the respondent No.5, the appellant does not object and is willing to give LSC No. 2256 of 1996 to the respondent No.5, in honour of his father wishes. 14. The respondent Nos. 5 & 6 being aggrieved by the Judgment & Order dated 2.5.2011 passed in Title Suit No. 7 of 2002 filed RFA No.26 of 2011 in the Court of the District Judge, Aizawl. The First Appellate Court in its judgment and order dated 15.10.2012 disposed of the RFA No. 26/2011 by setting aside the judgment of the trial Court and holding that the bifurcation of the appellant's father LSC into four different LSCs was proper. It also directed that as the respondent No. 6 (father of Dr. Zokhuma) had died, the LSC No. 188 of 1979 and AZL. 2255 of 1996 should be given to the legal heirs, Dr. Lalnghinglova and Mr. Hmingdailova (brothers of Dr. Zokhuma). 15. Mr. L. H. Lianhrima, senior counsel appearing for the respondent Nos. 5 and 6 submits that the land covered by LSC No. 188 of 1979, which was in the name of Dr. Zokhuma, was the land of the respondent No. 6. The respondent No. 6 had permitted Dr. Zokhuma to put a small portion of the land in his name, but Dr. Zokhuma had put the entire land measuring an area of 4.18 bighas in his name by way of the undivided LSC No. 188 of 1979. The private respondent counsel submits that when the respondent No. 6 came to know of the same, he told Dr. Zokhuma to revert back the entire land in the name of the respondent No. 6. Alternatively, the respondent No. 6 told Dr. Zokhuma to put a major portion of the land in the name of the respondent No. 5 and the remaining portion should be put in the name of the respondent No. 6. The respondents counsel submits that Dr. Zokhuma to revert back the entire land in the name of the respondent No. 6. Alternatively, the respondent No. 6 told Dr. Zokhuma to put a major portion of the land in the name of the respondent No. 5 and the remaining portion should be put in the name of the respondent No. 6. The respondents counsel submits that Dr. Zokhuma thereafter purchased a transfer application form from the Revenue Department and requested the Revenue Authorities to put ¾ of the land covered under LSC No. 188 of 1979 in the name of the respondent No. 5 and the remaining portion in the name of the respondent No. 6. Before the process could be completed by the Revenue Department, Dr. Zokhuma expired. However, as the process had already been started, the Revenue Authorities bifurcated the land covered by LSC No. 188 of 1979 into four different LSCs and mutated the same in the names of the respondent Nos. 5 and 6. The respondents counsel submits that the documents submitted in the written statement on behalf of the respondent Nos. 1 to 4 clearly points to the fact that Dr. Zokhuma wanted ?¾ of the land covered by LSC No. 188 of 1979 to be put in the name of the respondent No. 5. The respondents counsel thus submits that the bifurcation of the LSC No. 188 of 1979 suffered from no infirmity and has been done properly and therefore prays that the judgment and order passed by the First Appellate Court should be upheld. 16. Mrs. Linda L. Fambawl, Government Advocate submits that the State respondent Nos. 1 to 4 do not have any comments to make, inasmuch, as they did not lead any evidence or exhibit any documents during the trial. 17. I have heard the learned counsels for the parties. 18. It is admitted at the bar that the only application form submitted by the appellant's father Dr. Zokhuma for partitioning a part of the LSC No. 188 of 1979 states that ' Since I want to slice out a portion for my sister Thanzamliani' ?. There is no mention of the respondent No. 6 in the said application form. There is also no mention of the area to be sliced out for the respondent No. 5. Zokhuma for partitioning a part of the LSC No. 188 of 1979 states that ' Since I want to slice out a portion for my sister Thanzamliani' ?. There is no mention of the respondent No. 6 in the said application form. There is also no mention of the area to be sliced out for the respondent No. 5. It is also admitted by the parties that the said application form for partition has not been exhibited by any of the parties. 19. On going through the records, I find that there cannot be any question/dispute with regard to the title of Dr. Zokhuma in respect of LSC No.188 of 1979, inasmuch as, the said LSC was mutated in the name of Dr. Zokhuma in 1979. No claim or action was taken by the father of Dr. Zokhuma, at any time during the life time of his son, Dr.Zokhuma, with regard to the mutation of the said LSC in the name of Dr. Zokhuma. In fact the respondent No. 6 did not make any claim or take any action even after the death of Dr. Zokhuma in the year 1996, with regard to the allegation that Dr. Zokhuma had illegally mutated the LSC No. 188 of 1979 in his name. Accordingly, this Court holds that there can be no doubt that Dr. Zokhuma is the title holder to the LSC No. 188 of 1979. 20. In the case of Ralliani & others v. Kaithuami & others, reported in 2008 Supp GLT 820, this Court has held that the law of inheritance explicitly excluded women if the deceased is survived by a son. It has also been held in Ralliani & others (supra) that the Mizo Customary Law of inheritance provides that the son shall inherit the property of his father, to the exclusion of all other heirs. Accordingly as per the Mizo Customary Law, the appellant is to inherit the property of his father Dr. Zokhuma. Inheritance under the Mizo Customary Law is by way of devolution of property through the male line. There is no dispute at the bar that the first choice/preference for devolution of property by way of inheritance is through the son. In the present case, the appellant is the only son of Dr. Zokhuma. 21. Zokhuma. Inheritance under the Mizo Customary Law is by way of devolution of property through the male line. There is no dispute at the bar that the first choice/preference for devolution of property by way of inheritance is through the son. In the present case, the appellant is the only son of Dr. Zokhuma. 21. In the present case, the records show that the appellant's father had requested for bifurcation of LSC No. 188 of 1979 by slicing out a portion of the same in favour of the respondent No.5. The documents on records including the application form filled up by Dr. Zokhuma shows that he has not given the area to be slashed out for his sister Thanzamliani, respondent No.5. However, it is clear that there was an intention on the part of the appellant's father to give a portion of his land to his sister. In view of the concession made by the appellant that he is willing to give LSC No. AZL 2256 of 1996 to the respondent No. 5, this Court does not find any reason to disturb the respondent No.5's ownership of L.S.C. No. AZL. 2256 of 1996. 22. In view of the Mizo Customary Law that the son will inherit his father's properties, to the exclusion of the other heirs, the giving of the other bifurcated LSCs to the respondent Nos. 5 & 6 is not permissible and is accordingly deemed to be void. However, in view of the reasons stated above, the LSC No. AZL 2256 of 1996 shall be inherited by the respondent No.5. The other LSCs namely LSC No. AZL. 188 of 1979, LSC No. AZL 2255 of 1996, LSC No. AZL 2258 of 1996 will be inherited by the appellant herein. Accordingly, the Judgment & Order dated 2.5.2011 passed in Title Suit No. 7 of 2002 is accordingly modified to the extent indicated above and the Judgment & Order dated 15.10.2012 passed by the Additional District Judge, Aizawl in RFA No. 26 of 2011 is hereby set aside. 23. In view of the above, the State respondents are directed to cancel the mutation of LSCs No. AZL.188 of 1979 and No. AZL. 2255 of 1996 made in the name of the respondent No.6 and LSC No. AZL. 2258 of 1996 made in the name of the respondent No.5. 23. In view of the above, the State respondents are directed to cancel the mutation of LSCs No. AZL.188 of 1979 and No. AZL. 2255 of 1996 made in the name of the respondent No.6 and LSC No. AZL. 2258 of 1996 made in the name of the respondent No.5. The State respondents shall issue fresh LSC on the above 3 (three) LSCs in the name of the appellant herein. The respondent Nos. 5 & 6 shall also hand over the vacant and peaceful position of the land covered by the 3 (three) LSCs along with the LSCs to the appellant herein immediately. 24. The appeal is accordingly allowed. Appeal allowed.