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2018 DIGILAW 630 (GAU)

Zothansangi v. Zodinliana

2018-04-10

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Mr. L.H Lianhrima, the learned senior counsel assisted by Ms. H. Lalmalsawmi for the applicants/appellants. Also heard Mr. Aldrin Lallawmzuala, the learned counsel representing the sole respondent. With the consent of the learned counsel for the rival parties, both the Interlocutory Application (IA) as well as the Regular First Appeal are taken up together for disposal. 2. By filing the Interlocutory Application, the applicants seek condonation of 631 days delay in filing the appeal against the issuance of Heir-ship Certificate No. 1402/2015 on 25.08.2015 as well as Heir-ship Certificate No. 1884/2015 on 30.10.2015. 3. The applicants/appellants in their application for condonation of delay contend that sometime in the beginning of the year 2017, on account of certain alteration with the respondent, they suspected that the respondent was intending to ask them to leave the place where they were staying and therefore, with such apprehension, they approached the Revenue Department of the State by filing an RTI application seeking information as to whether there has been any alteration in the name of the owner of the land and building where they were staying besides other properties at the behest of the respondent. 4. To the query of the applicants, a reply was made by the Revenue Department that the Lands Settlement Certificate in respect of the plot of land located at Zarkawt which was in the name of late Zohmingthanga had been mutated in the name of the respondent on the strength of Heir-ship Certificate. Thereafter, the applicants, after enquiring about the Heir-ship Certificate and consulting their counsel, approached the learned District Judge, Aizawl District, Aizawl by filing RFA No. 5/2017 on 25.04.2017. The appeal was accompanied by CMA No. 179/2017, i.e., an application for seeking condonation of delay in filing the appeal. According to the applicants, there was 325 days delay in filing the said appeal. However, upon coming to learn that the pecuniary limits of the learned District Judge was limited and the appeal was beyond the jurisdiction of the Court to entertain, the appeal was withdrawn with a liberty to file afresh before the proper forum on 05.05.2017. The applicants contend that since the counsel engaged by them did not practice in the High Court, they were left with no option but to withdraw the case brief from him sometime in the 3rd week of July, 2017. The applicants contend that since the counsel engaged by them did not practice in the High Court, they were left with no option but to withdraw the case brief from him sometime in the 3rd week of July, 2017. In this connection, the applicants have also obtained an affidavit from their counsel in a District Court. Consequently, the applications were able to file the present appeal only on 16.05.2017 through their present counsel. The applicants thus contend that since they were not of the knowledge about the applications for Heir-ship Certificate which was filed by the respondent, the delay in filing the appeal be condoned so as to enable them to project their claim against the 2 (two) Heir-ship Certificate, obtained by the respondent. 5. Appearing for the respondent, Mr. Aldrin Lallawmzuala submits that prior to the issuance of the 2 (two) Heir-ship Certificate, the learned Court below upon receiving the application for Heir-ship Certificate directed the respondent to make newspaper publication through a local daily for 2 consecutive days so as to notify those who may have objections, including the applicants against the application for Heir-ship Certificate in respect of the properties concerned. Accordingly, the respondent caused newspaper publication in the local daily for 2 (two) consecutive days and it was only thereafter that the Heir-ship Certificate were issued to the respondent. He further submits that the respondent and the applicants are living in the same building although separately and that the applicants have access to newspapers and other media and therefore, it is unbelievable that the applicants were unaware of the publication made by the respondent in the local daily for 2 (two) consecutive days. 6. Mr. Aldrin Lallawmzuala, the learned counsel further submits that the applicants have also not tendered proper explanation to the delay in filing the appeal. He submits that though the appeal filed before the District Court was withdrawn on 05.05.2017 with a liberty to file afresh before the proper forum, there is however no explanation as to why the case brief was only returned to the applicants only on 27.07.2017. It only shows that the applicants have not been diligent in pursuing their cause. Mr. He submits that though the appeal filed before the District Court was withdrawn on 05.05.2017 with a liberty to file afresh before the proper forum, there is however no explanation as to why the case brief was only returned to the applicants only on 27.07.2017. It only shows that the applicants have not been diligent in pursuing their cause. Mr. Aldrin Lallawmzuala, by referring to the Will left behind by the mother of the respondents submits that no property has been given to the applicants and in fact, the property of late Zohmingthanga, in the event, he remained a bachelor was meant to be given to the son of the respondent. Therefore, besides the delay, the appeal, even otherwise is without any merit. Thus, the application be rejected and the appeal be dismissed. 7. I have heard the learned counsels for the rival parties and have perused the Lower Court Records that was requisitioned vide Order dated 07.03.2018 in the Interlocutory Application. 8. The present controversy has arisen after the death of the previous owners of the property in question i.e., Shri. Lalbuaia and Smt. Thani. Thereafter, on the strength of the Will, left behind by Smt. Thani, who was predeceased by Shri. Lalbuaia, the properties were left behind in favour of their two sons, Zohmingthanga and Zodinliana (the respondent herein). Be it stated herein that while Zodinliana is married and having children while Shri. Zohmingthanga remained a bachelor till his death. Considering his marital status, his mother Smt. Thani, in the Will left behind by her, mentioned that if Zohmingthanga remained a bachelor, his share of the property may be given either to Laldinpuia, son of the respondent or any other person. It is the case of the applicants/appellants that they were looked after by Shri. Zohmingthanga and were living with him till his death and for this reason, they have the right to claim the properties left behind by him. Although the learned counsel Mr. It is the case of the applicants/appellants that they were looked after by Shri. Zohmingthanga and were living with him till his death and for this reason, they have the right to claim the properties left behind by him. Although the learned counsel Mr. Aldrin Lallawmzuala has made a reference to the Mizo Marriage Divorce & Inheritance of Property Act, 2014 by referring to Chapter-VIII, Sub-section (10) of Section 31 but however, having regard to the fact that the applicant No. 1/appellant No. 1 is the daughter of the respondent and that she and her son have been taken care of by late Zohmingthanga and living in the same building, it will only be appropriate if they are given an opportunity to project their cause. Furthermore, as can be seen from the LCR, though the learned Court below had caused service of notice to persons who may be interested in the properties in question by directing the respondent to make newspaper publication in the local daily for 2 (two) consecutive days but however, the applicants/appellants contend that they were unaware of such publication. 9. At this stage, the learned senior counsel Mr. L.H Lianhrima submits that although the two Heir-ship Certificates have been impugned but in fact, the applicants/appellants are aggrieved only in respect of the Heir-ship Certificate No. 1402/2015, by which the respondent has been declared to be legal heir of late Zohmingthanga in respect of his landed property. The leaned senior counsel has also relied upon a number of decisions rendered by the Apex Court to contend that the applicants have made out a case for condoning the delay in filing the appeal. One such case i.e., S. Ganesh Raju & Anr, vs. Narasamma & Ors, 2013 11 SCC 341 may be referred to. The Apex Court held that it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. As may be noticed in the instant case, the applicants/appellants on their part and upon coming to learn about the issuance of the Heir-ship Certificate have taken some steps by engaging their counsels before the Court below. As may be noticed in the instant case, the applicants/appellants on their part and upon coming to learn about the issuance of the Heir-ship Certificate have taken some steps by engaging their counsels before the Court below. Although the manner in which the applicants/appellants have perused their case would show some amount of deficiency but nevertheless, I am of the considered view that for ends of justice, an opportunity should be granted to the applicants/appellants to contest the case. 10. In that view of the matter, the delay of 631 days in filing the connected appeal, is condoned. Heir-ship Certificate No. 1402/2015, issued on 25.08.2015 is hereby set aside and the same is remanded back to the Court of Senior Civil Judge, District Court at Aizawl, for consideration afresh. 11. The parties are directed to appear before the learned Senior Civil Judge, Aizawl District, Aizawl on 2nd May, 2018 where after, the learned Trial Court shall proceed in accordance with law and conclude the case as expeditiously as possible, preferably within a period of 3 (three) months thereafter. 12. Before parting with the records, it is made clear that the learned Trial Court shall not take into consideration any view expressed by this Court and shall arrive at its own findings and conclusions independent of any observation made herein above. 13. With the above observations and directions, both the Interlocutory Application as well as the appeal stands disposed of. Let the lower Court records be sent back forthwith.