RFA/23/2020 of Hmingthanmawii Vs Smt. Ramtharlawmi and 4 Ors. on 28 May 2026

GAHC030004212020

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RFA/23/2020 Hmingthanmawii Aizawl MIzoram

VERSUS Smt. Ramtharlawmi and 4 Ors. Bawngkawn

Advocate for the Petitioner : Mr Zochhuana Advocate for the Respondent : Mr A.R. Malhotra :::BEFORE::: HON’BLE MR. JUSTICE NELSON SAILO

Date on which judgment is reserved : 26.05.2026 Date of pronouncement of judgment : 29.05.2026 Whether the pronouncement is of the : N/A operative part of the judgment ? Whether the full judgment has been : Yes pronounced?

JUDGMENT & ORDER (CAV)

Heard Mr. T. Lalnunsiama, learned counsel for the appellant and Mr. C. Tlanthianghlima, learned counsel for the respondents.

2. This is an appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) filed by the appellant against the Judgment & Order dated 07.08.2020, passed by the learned Senior Civil Judge, Champhai in Probate Case No. 3/2013. By the impugned judgment and order, the learned Senior Civil Judge dismissed the probate case filed by the appellant.

3. Brief facts of the case essential for disposal of the appeal is that the appellant and the original respondent are siblings and born out of a common biological parents, namely, Shri. Lalthlumvunga and Smt. Lalzami. The original respondent expired on 11.08.2020 and therefore, he is substituted by his legal heirs, who are 5 (five) in numbers vide this Court's order dated 26.11.2021.

4. Shri. Lalthlumvunga who expired on 16.06.2006, during his lifetime, executed a Will on 28.05.2006, leaving his house and other properties in the hands of his wife Smt. Challiani, who is his second wife and whom he married after his first wife Smt. Lalzami expired.

5. Smt. Challiani expired on 21.06.2013 and during her lifetime, she executed a Will in favor of the present appellant on 22.02.2007 in respect of the landed properties and buffaloes used for plowing the paddy field, as mentioned in the said Will dated 22.02.2007. Upon her death, the appellant filed Probate Petition No. 3/2013 before the Court of Civil Judge, Champhai on 13.08.2013. After pleadings were exchanged, witnesses examined and hearing completed, the learned Court below vide the impugned Judgment & Order dated 07.08.2020 dismissed the probate case. Aggrieved, the appellant is before this Court through the instant first appeal.

6. Mr. T. Lalnunsiama, learned counsel submits that the learned Probate Court erred in dismissing the probate application of the appellant without framing issues as required to be done under Order 14 Rule 1 of the CPC. He submits that since the learned Probate Court failed to frame issues, the appellant has been deprived of the opportunity to establish the fact that the Will dated 22.02.2007 was rightly issued on being executed by Shri. Challiani in favor of the appellant. He submits that in order to substantiate this fact, the appellant has also relied upon the earlier Will dated 28.05.2006, executed by late Shri. Lalthlumvunga in favor of Smt. Challiani. However, no issues were framed and the learned Trial Court proceeded to decide the probate case summarily and therefore, the impugned judgment and order should be set aside and the matter remanded back to the Probate Court for fresh consideration.

7. Mr. T. Lalnunsiama, learned counsel submits that Section 5(4) of the Mizo District (Inheritance of Property Act) Act, 1956 (Inheritance of Property Act) provides that a Will shall be taken to have effect from the death of the testator. He submits that going by the said provision, on the demise of Shri. Lalthlumvunga, the Will dated 28.05.2006 took effect, and likewise, on the death of Smt. Challiani, the Will dated 22.02.2007 took effect as well. He submits that the learned Probate Court, however, apart from not framing issues to be decided, failed to consider this aspect of the matter, and therefore, the impugned judgment and order should be set aside and the matter remanded back for fresh consideration. The learned counsel in support of his submission has relied upon the case of R. Nagaraj (Dead) through LRs. & Anr. Vs. Rajamani & Ors., reported in 2025 INSC 478; Thansiami Vs. Lalruatkima & Ors., reported in (2012) 2 GLR 309 and Judgment dated 26.04.2022 of the Apex Court in Civil Appeal Nos. 7159-7160 of 2008 (Smt. Kaithuami (L) through LRs. Vs. Smt. Ralliani & Ors.).

8. Per contra, Mr. C. Tlanthianghlima, learned counsel submits that there is nothing wrong with the judgment and order rendered by the Probate Court. He submits that paragraph 7 of the impugned judgment and order clearly reflects that the learned Probate Court had considered the issue as to whether the Will made by late Challiani was valid in the eye of law. Upon considering the same and after coming to a finding that the Will left by Shri. Lalthlumvunga had not been probated, Smt. Challiani was therefore found to have no right to dispose of the properties of late Shri. Lalthlumvunga and the Will executed by her is invalid. He therefore submits that the learned Probate Court rightly dismissed the probate case.

9. He further submits that although the Will sought to be probated by the appellant is the Will dated

22.02.2007, but the appellant failed to examine the two witnesses who witnessed the said Will and instead, produced the two witnesses who had witnessed the earlier Will dated 28.05.2006 executed by Shri. Lalthlumvunga. Referring to the deposition of the two witnesses, the learned counsel submits that there is a gross contradiction in the version of the two witnesses. He submits that while PF No. 1 stated that Shri. Lalthlumvunga at the relevant time although in frail health, he sat up while the Will was being prepared and had a clear conscience during that time. He also stated that the contents of the Will was drafted by Shri. C. Thuamluaia (L), who was the Village Council President. However, contrary to this, PF No. 2 stated that he did not know who wrote the Will and Shri Lalthlumvunga did not read the contents of the Will to him and to PF No. 1. He was very ill and could not even sit up when the Will was being prepared. He also submits that according to PF No. 2, he did not know as to whether Shri Lalthlumvunga prepared the Will with a sound mind or not. He therefore submits that there is a clear contradiction in the deposition of the two witnesses of the appellant and therefore, their evidence is of no consequence.

10. Mr. C. Tlanthianghlima, the learned counsel submits that the Will dated 22.02.2007 or even 28.05.2006 does not conform to the requirements of the preparation of a Will in terms of the Inheritance of Property Act. He submits that the same is contrary to the provisions of Section 9 which provides that probate is to be given only to the appointed Executor and Section 17 which provides that the petitioner for probate is the Executor named in the Will. He submits that a bare perusal of the two Wills does not provide for an Executor of the Will and therefore, they cannot be probated under the provisions of the Inheritance of Property Act. He also submits that the appellant had clearly failed to produce the two witnesses who witnessed the Will dated 22.02.2007 and therefore, in the absence of their evidence, there is no scope of probating the said Will.

11. The learned counsel also submits that the appellant has taken grounds beyond the original pleadings in the probate application. The grounds set forth in the appeal also goes to show that the appellant has claimed her right over the property involved in terms of the customary law while the application submitted before the Court is an application for probate of the Will. He submits that in an application for probate of a Will, what is required to be done is to see as to whether the Will can be probated and as to whether the same conforms to the prescription of the Inheritance of Property Act. The learned Trial Court having clearly considered this aspect, the learned counsel submits that the appeal has no merit and the same should be dismissed. In support of his submission, he has relied upon the case of State of Uttarakhand & Anr. Vs. Mandir Sri Laxman Sidh Maharaj, reported in (2017) 9 SCC 579.

12. I have heard the submissions made by the learned counsel for the rival parties and I have perused the materials available on record.

13. Order 14 Rule 1 CPC provides for framing of issues. It provides that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which the plaintiff must allege in order to show a right to sue, or a defendant must allege in order to constitute his defense. It is true that the learned Probate Court ought to have framed issues to decide as to whether a case was made out for probating the Will dated 22.02.2007. The order sheet of the Probate Court goes to show that on 14.07.2014, the rival parties were present and the opposite party had submitted a written objection. Accordingly, the matter was fixed for a hearing on 30.07.2014. On 30.07.2014, the matter was adjourned again fixing 14.08.2014 as the next court date and for hearing. On 14.08.2014, the appellant as applicant submitted a prayer for plaintiff evidence and a list of witnesses was submitted. Following the same, the appellant examined two witnesses i.e., the two witnesses to the Will dated 28.05.2006 while the respondents examined one witness. It can therefore be seen that it was on the prayer of the appellant that the matter was proceeded for plaintiff evidence without the framing of issues. Nevertheless, the learned Probate Court ought to have framed issues to enable the parties to proceed with their respective projected case

on the basis of the issues being framed.

14. It may however, be seen that the appellant sought probate of the Will dated 22.02.2007, which on a bare perusal does not conform to the prescription of the provisions of the Inheritance of Property Act, since no Executor is named in the Will to give effect to Section 9 of the Inheritance of Property Act. The materials on record also go to show that Smt. Challiani who executed the Will dated 22.02.2007, derived her right to give away the property in question on the basis of the earlier Will dated 22.02.2007, purportedly executed by Shri. Lalthlumvunga. The said Will admittedly, was not probated by Smt. Challiani during her lifetime to give her the right and authority to give away the property in question through her Will dated 22.02.2007. Such being the situation, framing of issues in the considered view of this Court, would have been of no consequence and that remanding the matter back to the Probate Court for this purpose, would also be a futile exercise under the facts and circumstances of the case.

15. It is one thing to say that the party concerned has a right to the property in question by virtue of customary law, but it is another thing to say that the property should go to that party by virtue of a valid Will. As already stated, the materials on record do not reveal the existence of a valid Will and therefore, upon due consideration, this Court is not inclined to interfere with the impugned judgment and order. However, notwithstanding the rejection of the appeal, the appellants' right to the property in question in terms of the customary law can still be determined but the same will have to be done as per the procedure permissible in law.

16. Having come to the above findings and conclusion, reference to the authorities relied upon by the parties is found to be not necessary. In the result, the appeal is dismissed.

JUDGE Comparing Assistant