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2021 DIGILAW 683 (GAU)

Lalthanchami v. Lalthafamkima

2021-11-11

NELSON SAILO

body2021
JUDGMENT : NELSON SAILO, J. 1. Heard Ms. Rosalyn L. Hmar, learned counsel for the appellant and Mr. Lalchhanhima Sailo, learned counsel for the respondent. 2. This appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) is directed against the Order dated 24.10.2019 passed by the learned Addl. District Judge, Aizawl in RFA No. 7/2019, which arises out of the Order dated 17.06.2019 passed in Heirship Certificate No. 973/2019 by the Court of Senior Civil Judge, Aizawl. 3. The appellant is the second wife of Mr. P.C. Chawithuama and the respondent is the youngest son amongst 3 (three) sons from the first wife. Mr. P.C. Chawithuama expired on 02.12.2012 leaving behind a landed property covered by LSC No. 103101/01/847/2010 located at Field Veng, Zemabawk, Aizawl. He and the appellant did not have any children. The respondent on 14.06.2019 submitted a Heirship Certificate application before the Court of Senior Civil Judge, Aizawl for the aforementioned landed property. The application was registered and numbered as Heirship Certificate Case No. 937/2019. The learned Senior Civil Judge, upon perusing the application and the documents annexed, granted the Heirship Certificate application vide Order dated 17.06.2019. Accordingly, Heirship Certificate was issued in favour of the respondent. 4. Aggrieved with the issuance of Heirship Certificate to the respondent, the appellant preferred an appeal before the Court of District & Sessions Judge, Aizawl by filing RFA No. 7/2019. The grounds taken by the appellant before the First Appellate Court was that the Heirship Certificate was granted to the respondent by the learned Senior Civil Judge, without issuing any notice and without giving any opportunity to the appellant to contest the same. Also, no newspaper publication was made inviting objection, if any, to the application for Heirship Certificate. Against the appeal, the respondent filed a written statement stating inter-alia that the appellant was informed about the Heirship Certificate application being made to the Court and she was informed to appear before the Court. However, she refused to appear before the Court. Moreover, all the service benefits of Mr. P.C. Chawithuama was received by the appellant and that she having left the house barely 3 (three) months after the death of Mr. PC Chawithuama, and constructing her own house elsewhere, she is not entitled to the property in question. However, she refused to appear before the Court. Moreover, all the service benefits of Mr. P.C. Chawithuama was received by the appellant and that she having left the house barely 3 (three) months after the death of Mr. PC Chawithuama, and constructing her own house elsewhere, she is not entitled to the property in question. The learned First Appellate Court upon hearing the parties and on the basis of the pleadings dismissed the appeal and upheld the Heirship Certificate. Aggrieved, the appellant is before this Court in second appeal. 5. This Court, vide Order dated 04.08.2021 formulated the following substantial question of law:- "Whether the Trial Court could have decided an application for grant of Heirship Certificate in respect of immovable property, without issuing notice to the necessary party/legal representative/s and without recording any evidence." 6. Ms. Rosalyn L. Hmar, learned counsel for the appellant submits that although according to the respondent, the appellant executed the letter of approval to handover the LSC to the respondent on 30.03.2013 but this was only under duress/threat and she was often abused and threatened by the respondent. She submits that the appellant was not issued any formal notice by the Court before the issuance of the Heirship Certificate and likewise, no newspaper publication was made about the application for Heirship Certificate submitted by the respondent. Therefore, the learned Senior Civil Judge could not have issued the Heirship Certificate in favour of the respondent. Aggrieved with the grant of Heirship Certificate to the respondent, the appellant preferred a first appeal before the First Appellate Court contending inter-alia that notice was not served to the appellant and therefore, the grant of Heirship Certificate should be set aside. But the First Appellate Court, without examining this issue and without taking any evidence, rejected the appeal of the appellant and upheld the Heirship Certificate. The learned counsel submits that merely informing the appellant to come to the Court without disclosing the reason for doing so and without any formal notice from the Court itself is not sufficient for obtaining a favourable order ex parte and against the interest of the opposite party. Under the circumstance, she submits that the impugned Order of the Appellate Court and the Heirship Certificate issued by the learned Senior Civil Judge should be set aside and the case remanded back to the appropriate Court for a fresh decision. Under the circumstance, she submits that the impugned Order of the Appellate Court and the Heirship Certificate issued by the learned Senior Civil Judge should be set aside and the case remanded back to the appropriate Court for a fresh decision. The learned counsel also submits that considering the value of the property in question, the application should have been made before the Civil Judge and not before the Senior Civil Judge. 7. In support of her submission, the learned counsel has relied upon the following authorities:- (1) Smt. Sudha Devi vs. M.P. Narayanan & Ors., reported in MANU/SC/0459/1988 : (1988) 3 SCC 366 (2) Sushil Kumar Sabharwal vs. Gurpreet Singh & Ors., MANU/SC/0409/2002 : (2002) 5 SCC 377 (3) Order dated 17.09.2021 of this Court passed in RFA No. 24/2021 (Sh. Lalfakawma Fanai vs. Smt. Lalrempui Fanai) (4) Order dated 23.06.2021 by this Court in RFA No. 15/2021 (Sh. Lalfakawma Fanai vs. Smt. Lalrempuii Fanai) 8. Mr. Lalchhanhima Sailo the learned counsel for the respondent submits that the appellant left the house where she was living with Mr. P.C. Chawithuama, barely after 3 (three) months of his death and she has constructed another building for herself elsewhere. He submits that she has also taken all the service benefits of late Mr. P.C. Chawithuama. However, in respect of the property in question, the respondent being the youngest son of the deceased, he has the right to inherit the same and to the exclusion of the appellant as she has already left the house. The learned counsel submits that the same is only clear from the relevant provisions under the Mizo Marriage, Divorce and Inheritance of Property Act, 2014. He further submits that the appellant was duly informed by the respondent about the application made to the Court for Heirship Certificate and she was asked to appear before the Court. However, the appellant refused to do so and therefore, the Heirship Certificate was rightly issued to the respondent. Under the circumstance, there is no merit in the appeal and the same should be dismissed. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 10. However, the appellant refused to do so and therefore, the Heirship Certificate was rightly issued to the respondent. Under the circumstance, there is no merit in the appeal and the same should be dismissed. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 10. As may be noticed, substantial question of law formulated by this Court is as to whether the Trial Court could have decided an application for Heirship Certificate in respect of the immovable property without issuing notice to the necessary party or legal representatives and without recording any evidence. From a perusal of the Lower Court Record, it is seen that the learned Senior Civil Judge before issuance of the Heirship Certificate did not issue any notice. The Court has also not caused newspaper publication about the application made, so as to enable any person interested in the property in question to raise their objection. The learned Trial Court was guided by the documents annexed to Heirship Certificate application which also contains a No Objection Certificate purportedly issued by the appellant. There is also another certificate of handing over the LSC in question by the appellant to the respondent. Following the issuance of the Heirship Certificate, the appellant preferred RFA No. 3/2019 before the Appellate Court concerned raising her grievances that she was not issued any notice by Court before the issuing the Heirship Certificate. She also stated that the No Objection Certificate and the document, by which the LSC was handed over to the respondent was not signed by her on her freewill but under duress and threat from the respondent. Against the appeal, the respondent also filed his written statement denying the allegations and grounds taken by the appellant in her appeal. In such circumstance, there being dispute about the facts and background on the basis of which the Heirship Certificate was issued, the learned First Appellate Court should have either remanded the case back to the Court which issued the Heirship Certificate or should have directed the parties to lead their respective evidence in support of their contentions. However, the learned First Appellate Court only by hearing the parties and perusing the pleadings and documents placed before it decided the appeal against the appellant. 11. This Court in RFA No. 15/2021, Sh. However, the learned First Appellate Court only by hearing the parties and perusing the pleadings and documents placed before it decided the appeal against the appellant. 11. This Court in RFA No. 15/2021, Sh. Lalfakawma Fanai (supra) in the given facts of that case and which was also in respect of issuance of Heirship Certificate held that the Trial Court issued the Heirship Certificate in violation of the principles of natural justice and therefore, remanded the matter back to the Trial Court for reconsideration by issuing notice to the appellant. Again, this Court in RFA No. 24/2021, Sh. Lalfakawma Fanai (supra) while considering the appeal filed against the issuance of Succession Certificate to the respondent without impleading the appellant, held that though newspaper publication may have been made inviting objections from interested persons against the issuance of Succession Certificate, in respect of a certain fixed deposit in the Bank in favour of the applicant, the same was not sufficient and that the applicant should have arrayed the appellant, who in fact is her brother. Therefore, the non-joinder appellant in the Succession Certificate case amounted to violation of the principles of Audi Alteram Partem. Consequently, the Succession Certificate was set aside and the matter remanded back for reconsideration by impleading the appellant as a party respondent. 12. The Apex Court in Sushil Kumar Sabharwal (supra), while considering the facts involved in that case vis-à-vis Order 9 Rule 13 & 6 of the CPC, held that the Court before exercising its discretion of passing ex parte decree must be satisfied that due service of summons was proved. On alleged refusal of the defendant to accept the summons and the process server's failure to affix a copy of the summons on the wall of the premises and instead returning the summons to the Court with his endorsement on the back about defendant's refusal, it was held that the same amounted to non-service of the summons. Accordingly, the Apex Court set aside the ex parte decree and remanded the case back to the Trial Court for fresh decision. Coming to the present case, it may be seen that formal notice was not even issued to the appellant by the learned Trial Court before issuing the Heirship Certificate. Accordingly, the Apex Court set aside the ex parte decree and remanded the case back to the Trial Court for fresh decision. Coming to the present case, it may be seen that formal notice was not even issued to the appellant by the learned Trial Court before issuing the Heirship Certificate. Therefore, going by the ratio laid down by the Apex Court and also this Court and applying the same to the present case, I am of the considered opinion that a case for remand has been made out. 13. In view of above, the substantial question of law is answered in the negative and therefore, the impugned Order dated 24.10.2019 passed by the First Appellate Court in RFA No. 7/2019 and the Heirship Certificate No. 973/2019 issued by the learned Senior Civil Judge, Aizawl in favour of the respondent are hereby set aside. The matter is now remanded back to the learned Senior Civil Judge-IV for fresh consideration. It is also made clear that in order to come to a decision afresh on merit, the learned Court shall not be influenced by any observations that have been made in this order. The parties will be at liberty to raise their objections and claims on the property in question including any objection on the pecuniary jurisdiction of the Court. 14. The parties are directed to appear before the learned Senior Civil Judge-IV, Aizawl on 22.11.2021 with a copy of this order whereafter, the learned Court shall proceed with the matter in accordance with law could come to a logical conclusion as expeditiously as possible. 15. With the observation and directions, the appeal stands disposed of.