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2018 DIGILAW 116 (GAU)

Sammy Lalmawia v. Lalhmingmawii

2018-01-24

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. C. Lalfakzuala, counsel for the petitioner who submits that on the death of his father Sh. C. Lalthuamliana, the respondent No. 1, who is the elder sister of the petitioner applied for Heir-ship Certificate in the Court of the learned Civil Judge-II, Aizawl in respect of LSC No. 477/1980, located at Mission Veng, Aizawl and ALS No. W-1 of 1994 located at Tiau kam (Melbuk Kai), Tuinghachhuan Ram located in Champhai District. 2. The petitioner's counsel submits that the said two properties were in the name of his father. He further submits that the learned Civil Judge-II, Aizawl without issuing a notice on the said Heir-ship Certificate application submitted by the respondent No. 1, Heir-ship Certificate was granted to the respondent No. 1. 3. The petitioner's counsel submits that in view of the fact that the learned Civil Judge-II, Aizawl did not have territorial jurisdiction to issue a Heir-ship Certificate in respect of land, located in Champhai administrative district, the Heir-ship Certificate granted to the petitioner vide Order dated 13.10.2017 in Heir-ship Certificate Case No. 1756/2017 should be set aside. He further submits that the learned Civil Judge-II, Aizawl did not take into consideration The Mizo Marriage, Divorce & Inheritance of Property Act, 2014 while passing the Order dated 13.10.2017. 4. Mr. Joseph L. Renthlei, counsel for the respondent No. 1 submits that the petitioner has the right to file an appeal and as such, it would be proper for this Court to entertain this petition under Article 227 of the Constitution. He however agrees that no notice was issued by the Court of the learned Civil Judge-II, Aizawl, while passing the Order dated 13.10.2017 in Heir-ship Certificate Case No. 1756/2017. He also submits that the High Court has issued any notification under Section 12 of the Mizoram Civil Courts Act, 2005 fixing the local limits of the jurisdiction of the Civil Court. 5. I have heard the learned counsel for the parties. 6. Heir-ship Certificate was granted to the respondent No. 1 by the Court of the Civil Judge-II, Aizawl vide Order dated 13.10.2017 passed in Heir-ship Certificate No. 1756/2017, without issuing any notice to the petitioner herein, who is the brother of the respondent No. 1, in respect of the properties that were in the name of their deceased father. 6. Heir-ship Certificate was granted to the respondent No. 1 by the Court of the Civil Judge-II, Aizawl vide Order dated 13.10.2017 passed in Heir-ship Certificate No. 1756/2017, without issuing any notice to the petitioner herein, who is the brother of the respondent No. 1, in respect of the properties that were in the name of their deceased father. As per the notification No. A. 12011/32/06-LJE dated 7.01.2008, which has been published in the Mizoram Gazette dated 8.01.2008, the jurisdiction of the Civil Courts in the State of Mizoram have been outlined after consultation with the Gauhati High Court and after the Gauhati High Court in their communication dated 12.12.2007 have stated at paragraph 3 (b) which is as follows:- "3.(b) Senior Civil Judge/Civil Judge shall exercise territorial jurisdiction within the area of their respective administrative districts." 7. Paragraph 3 of the notification dated 7.1.2008 is reproduced below: "3.The jurisdiction of the said Courts has been outlined by the Hon'ble Gauhati High Court in their communication dated 12.12.2007 as below: (a) The District Judge/Additional District Judge at AIzawl shall have territorial jurisdiction over the undivided Aizawl administrative district viz. Aizawl, Kolasib, Champhai, Serchhip and Mamit. (b) Senior Civil Judge/Civil Judge shall exercise territorial jurisdiction within the area of their respective administrative districts. (c) However, the recently created administrative districts of Serchhip and Mamit do have Court establishments like staff, Jails etc. and due to this reason and shortage of Judicial officers, posting of Judicial Officers to these districts is deferred for the time being. Accordingly, Judicial Officers of appropriate grades posted at Aizawl may exercise jurisdiction over these districts as may be ordered by the High Court. (d) Civil Courts of Lunglei District may exercise jurisdiction over the entire Lunglei District including Saiha and Lawngtlai Districts, if and when the latter two districts which fall under the area of the sixth schedule to the Constitution and excluded from the scheme of Separation of Judiciary, are included in the said scheme." 8. The notification of the jurisdiction of the Civil Courts in the State of Mizoram, as per the communication made by the High Court, in the opinion of this Court, substantively complies with the requirement of Section 12 of the Mizoram Civil Courts Act, 2005. The notification of the jurisdiction of the Civil Courts in the State of Mizoram, as per the communication made by the High Court, in the opinion of this Court, substantively complies with the requirement of Section 12 of the Mizoram Civil Courts Act, 2005. Accordingly, in view of the above, the Court of the Civil Judge-II, Aizawl could have issued an Heir-ship Certificate to the respondent No. 1 in respect of land located under Champhai administrative district. Further, no notice had been issued by the Court of the Civil Judge-II, Aizawl before issuing the Heir-ship Certificate vide Order dated 13.10.2017 passed in Heir-ship Certificate Case No. 1756/2017. 9. The facts stated above, which are disputed, clearly shows that the Court of the Civil Judge-II, Aizawl has proceeded within the parameters of its territorial jurisdiction. The order made is only with regard to the exercise of power in excess of its jurisdiction by the Court of the Civil Judge-II, Aizawl and this Court does make any observation with regard to the merit of the Heir-ship Certificate. Thus, in view of the reasons stated above, the Order dated 13.10.2017 passed in Heir-ship Certificate No. 1756/2017 is hereby set aside. 10. The District Courts should ensure that there is no violation of the principles of natural justice in the manner it has been done in this case. 11. Accordingly, the petitioner and the respondent No. 1 are at liberty to apply for Heir-ship Certificate afresh before the Competent Courts under the respective administrative districts in which the properties are situated. 12. They should also implead the other party as parties in the event they file the Heir-ship Certificate application for the said properties of their late father. 13. The petition is accordingly allowed. No cost.