SMT. KAITHUAMI [L] THROUGH L.RS. versus SMT. RALLIANI AND OTHERS on 26 April 2022

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SUPREME COURT REPORTS

[2022] 4 S.C.R.

ASMT. KAITHUAMI [L] THROUGH L.RS.

v.

SMT. RALLIANI AND OTHERS

(Civil Appeal Nos. 7159-7160 of 2008)

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APRIL 26, 2022

[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]

Mizo Customary Law – Inheritance – Right of divorcedCdaughter/Unmarried Granddaughter – District Council Courtupon considering the factual matrix, particularly s. 109(3) and s.109(10) of the Mizo Customary Law, observed that though as perthe Mizo Customary Law, it is the youngest son, who would beentitled to inherit the property of his father; there is an ample scope for distribution of the property in a fair and reasonableDmanner – The District Council Court further found that under theMizo Customary Law, inheritance also depends upon theresponsibilities carried out by the legal heir – It was found thatthe son was looking after his widowed mother – However, afterhis death, appellant No.4 (divorced daughter) came back to herEoriginal home to look after her aged mother – The provision ofMizo Customary Law relating to ‘divorced’ (Hringkir) in the matterof inheritance would apply to her and her right to inheritance ofher father’s properties subsists by virtue of her being divorced(Hringkir) and coming back to the original family for lookingFafter the mother – Appellant No.4 looked after her mother till herdeath and also discharged the responsibility of erecting ceremonialtombstone for her mother – District Council Court found that sinceappellant No.4 had discharged her responsibility of looking afterher mother till her death and was occupying the main bed andreassuming her father’s clan title ‘Hahu’, her right to inherit herGfather’s properties could not be defeated – It further found thaton the other hand respondent No.3 though a female, was grand-daughter from the male lineal descent of deceased – She wasunmarried and purely a ‘Hahu’ in the line of P.S. Dahrawka – Itfound that her right to inheritance in the instant dispute wasHsafeguarded by the Customary Law in the absence of descendants having a better right for the purpose – The District Council Courttherefore found that taking into consideration the principle of MizoCustomary Law of Inheritance and the spirit of equity, which isparamount to Mizo Customary Law, it was appropriate that theproperty be divided between appellant No.4 and respondent No.3– The view taken by the District Council Court, on second remand,was based on the consideration of equity and the responsibility ofa legal heir to look after the elders in the family – High Court wasnot justified in reversing the order of District Council Court.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. The District Council Court, Aizawl, on secondremand, upon considering the factual matrix, particularly Section109(3) and Section 109(10) of the Mizo Customary Law, observedthat though as per the Mizo Customary Law, it is the youngestson, who would be entitled to inherit the property of his father;there is an ample scope for distribution of the property in a fairand reasonable manner. The District Council Court, Aizawl hasfound that in case of a rich father, the property can be dividedproportionately amongst the sons. The District Council Courtfurther found that insofar as the female members of the family,who are already married and living in separate households areconcerned, they are not entitled to any share. The DistrictCouncil Court further found that under the Mizo CustomaryLaw, inheritance also depends upon the responsibilities carriedout by the legal heir. It has been found that till his death,Thanhnuna was looking after his mother. However, after hisdeath, Thansangi Huha (appellant No.4) came back to her originalhome to look after her aged mother Kaithuami. It was foundthat the provision of Mizo Customary Law relating to ‘divorced’(Hringkir) in the matter of inheritance would apply to her andher right to inheritance of her father’s properties subsists byvirtue of her being divorced (Hringkir) and coming back to theoriginal family for looking after the mother. The District CouncilCourt found that Thansangi Huha looked after her mother tillher death and also discharged the responsibility of erectingceremonial tombstone for her mother. The District Council AB

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ACourt also found that after exclusion of the daughters ofdeceased P.S. Dahrawka and Kaithuami, who were married andliving in separate households and one daughter of Thanhnuna,i.e., Laldinpuii, who was also married into a different clan, thecontest was between Thansangi Huha (appellant No.4), theyoungest daughter of deceased P.S. Dahrawka and Kaithuami,Bwho after divorce came back to her house and was looking afterher mother on one hand and Lalmuanpuii (respondent No.3),the other daughter of deceased Thanhnuna. [Paras 15 and16][986-D-H; 987-A-C]

C2. The District Council Court found that since ThansangiHuha (appellant No.4 herein) had discharged her responsibilityof looking after her mother till her death and was occupying themain bed and reassuming her father’s clan title ‘Hahu’, her rightto inherit her father’s properties could not be defeated. It furtherfound that on the other hand Lalmuanpuii (respondent No.3),Dthough a female, was grand-daughter from the male linealdescent of deceased P.S. Dahrawka. She was unmarried andpurely a ‘Hahu’ in the line of P.S. Dahrawka. It found that herright to inheritance in the instant dispute was safeguarded bythe Customary Law in the absence of descendants having aEbetter right for the purpose. The District Council Courttherefore found that taking into consideration the principle ofMizo Customary Law of Inheritance and the spirit of equity,which is paramount to Mizo Customary Law, it was appropriatethat the property be divided between Thansangi Huha (appellantNo.4) and Lalmuanpuii (respondent No.3). [Para 17][987-C-F]F

3. The view taken by the District Council Court, Aizawl,on second remand, is based on the consideration of equity andthe responsibility of a legal heir to look after the elders in thefamily. [Para 19][988-A-B]

GThansiami v. Lalruatkima and Ors. (2012) 2 GauhatiLaw Reports 309 – approved.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7159-A7160 of 2008.

From the Judgment and Order dated 07.11.2007 of the High Courtof Gauhati, Aizwal Bench in RSA No.12 of 2006 and Cross ObjectionNo.04 of 2006.

Robin Ratnakar David, Munawwar Naseem, Dhiraj AbrahamPhilip, Febin V. Mathew, Samuel David, Advs. for the Appellants.

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Pragyan Pradeep Sharma, Neeraj Kumar Gupta, Kartikay Dutia,Ranjit Kumar, Advs. for the Respondents.

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The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. Application for substitution to bring on record legal representativesof the deceased appellant No.3-Thanzami is allowed, subject to all justexceptions.

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2. The present appeals challenge the common judgment and orderof the Gauhati High Court, Aizawl Bench, dated 7[th] November, 2007,passed in RSA No.12 of 2006 with Cross Objection No.4 of 2006, videwhich, the learned single judge of the High Court has allowed the saidSecond Appeal filed by the respondents herein and dismissed the cross-objection preferred by the appellants herein.

3. For appreciating the controversy in question, it will be appropriateto reproduce the family chart*, which is as under:

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* Ed. Note: The family chart is on next page.

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982SUPREME COURT REPORTS[2022] 4 S.C.R.ABCDEFGH

4. P.S. Dahrawka and Kaithuami, through whom the parties hereinare claiming inheritance, were married to each other on 28[th] January,1927. Ten children were born out of the said wedlock, i.e., two sons andeight daughters. Out of the said ten children, one son died at the age ofone and half year in the year 1940 and one daughter died a week afterher birth.

5. Though in the judgment, the High Court has referred that theproperty in dispute was purchased by P.S. Dahrawka in the year 1972by virtue of LSC No. AZL 56 of 1972, it is the contention of the appellantsherein that the said property was jointly purchased by P.S. Dahrawkaand Kaithuami in the year 1945. P.S. Dahrawka died on 5[th] March, 1978.At the time of his death, he was survived by his wife Kaithuami, onlyson Thanhnuna and seven daughters. All the daughters were marriedand living with their respective families. After his death, his youngestdaughter, Thansangi Huha (appellant No.4 herein), was divorced andcame to live with her mother Kaithuami in January, 1997. The sonThanhnuna, who died in the year 1996, was survived by his widow Rallianiand two daughters, namely, Laldinpuii and Lalmuanpuii, who are therespondents herein.

6. After the death of P.S. Dahrawka, the son Thanhnuna appliedfor the heirship certificate in his name in respect of the propertiescovered by LSC No. AZL 56 of 1972 left by his father, i.e., P.S.Dahrawka. His claim was based on the Mizo Customary Law ofInheritance, which provides that a son shall inherit the properties of aMizo and if the deceased is survived by more than one son, the youngestson shall inherit the property. However, before his application forheirship certificate could be decided, Thanhnuna died on 28[th] April,1996. After his death, his mother Kaithuami submitted an objection on31[st] May, 1996. The Subordinate District Council Court, Aizawldismissed the application of Thanhnuna for heirship certificate on 11[th]June, 1996 due to his death. His widow Ralliani (respondent No.1herein) filed an application for restoration of application for heirshipcertificate filed by her husband-deceased Thanhnuna. The same wasdismissed by the Subordinate District Council Court, Aizawl vide orderdated 3[rd] July, 1996.

7. In the meantime, mother Kaithuami also filed an applicationbeing H.C. No.1275 of 1996 claiming heirship certificate in respect ofthe properties of her husband deceased P.S. Dahrawka. The said A

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Aapplication was objected to by Ralliani and her two daughters. As such,the dispute came to be converted into a civil suit being Civil Suit No.13of 1996 in the Court of Subordinate District Council Court, Aizawl. Videjudgment and order dated 7[th] August, 1997, the said suit came to bedecreed in favour of the mother Kaithuami and she was declared thelegal heir of her deceased husband P.S. Dahrawka in respect of theBdisputed properties.

8. The respondents herein filed an appeal being C.A. No. 12 of1997 before the District Council Court, Aizawl. The Appellate Courtvide order dated 9[th] July, 2001 directed that the disputed property to bedivided between four daughters of Kaithuami, i.e., respondents thereinC(i.e. appellants herein) on one hand and three appellants therein (i.e.respondents herein) being legal heirs of Thanhnuna on the other hand.

9. The said judgment and order of the Appellate Court was assailedby the appellants herein before the High Court in RSA No.3 of 2001.The High Court vide judgment and order dated 13[th] May, 2003, observedDthat there was no meaningful discussion on the legal entitlements ofeither of the parties in the changed situation following the death of thepredecessors-in-interest of both the parties, and as such, remitted thematter to the First Appellate Court, Aizawl, i.e., District Council Court,Aizawl for deciding the appeal afresh.

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10. On remand, the District Council Court, Aizawl disposed of theappeal vide judgment and order dated 10[th] July, 2003. As per the saidjudgment, only the appellants herein were held to be entitled to the propertyof deceased P.S. Dahrawka to the exclusion of the widow and daughtersof deceased Thanhnuna (respondents herein). Being aggrieved thereby,Fthe respondents herein preferred RSA No. 9 of 2003 before the HighCourt. The High Court vide judgment and order dated 9[th] March, 2005again remanded the case to the First Appellate Court, i.e., District CouncilCourt, Aizawl to decide the matter afresh upon hearing the parties. TheDistrict Council Court, Aizawl, on remand, vide judgment and order dated28[th] February, 2006, partly allowed the appeal in the following terms:G

“1) That Respondent No. (d) namely Smt. Thansangi Huha shallinherit.

(a) The main house named “AHIMSA” and

(b) the Assam type building on the roadside aboveH‘AHIMSA’ adjacent in the south to RCC building on the roadside including the land they are standing on coveredby LSC AZL No.54/72.

2. The Appellant No.3 namely Smt. Lalmuanpuii Huha shall inherit:- (a)RCC building on the roadside adjacent in the north tothe Assam type building stated at (I) (b) above and (b)Assam type building on the roadside adjacent in the northto the building stated at 2(a) above including the landthey are standing on covered by LSC AZL No.54/72.”

11. Being aggrieved, the respondents herein preferred SecondAppeal being RSA No.12 of 2006 before the High Court and theappellants herein preferred Cross-Objection No. 4 of 2006. By theimpugned judgment and order dated 7[th] November, 2007, the High Courthas allowed the said Second Appeal and dismissed the Cross-Objection,thereby holding that it is only the respondent Nos. 2 and 3 herein beinglegal heirs of Thanhnuna, who were entitled to the rights in the propertyto the exclusion of the appellants herein. Being aggrieved, the presentappeals by way of special leave.

12. We have heard Mr. Robin Ratnakar David, learned counselappearing on behalf of the appellants and Mr. Pragyan Pradeep Sharma,learned counsel appearing on behalf of the respondents.

13. Mr. Robin Ratnakar David, learned counsel appearing on behalfof the appellants, would submit that the High Court failed to take intoconsideration that under the Mizo Customary Law it is not only the rightswhich are inherited, but it is also the responsibilities which are inherited.It is submitted that the inheritance depends upon the responsibilitiesdischarged by a legal heir towards his/her parents in their old age. It issubmitted that the deceased Thanhnuna was residing separately and itwas only the appellant No.4-Thansangi Huha, the youngest daughter ofthe deceased P.S. Dahrawka and Kaithuami, who was taking care ofher aged mother Kaithuami. It is further submitted that the deceasedP.S. Dahrawka and Kaithuami had entered into an agreement dated 28[th]January, 1927 and agreed that they would inherit each other’s property,and as such, on the death of her husband P.S. Dahrawka, his propertywas inherited by Kaithuami, and on her death, by their daughters. It issubmitted that since Thanhnuna had not looked after his mother or thefamily members, he or his legal heirs were not entitled to any rights in A

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Athe property. As such, the High Court had grossly erred in allowing theSecond Appeal and dismissing the Cross-Objection.

14. Shri Pragyan Pradeep Sharma, learned counsel appearing onbehalf of the respondents, on the contrary, would submit that the HighCourt has rightly allowed the Second Appeal filed by the respondentsBherein and dismissed the Cross-Objection filed by the appellants herein.It is submitted that the property in question was not covered by theagreement dated 28[th] January, 1927 and is guided by the Mizo CustomaryLaw. It is submitted that the suit property being LSC No. AZL 56 of1972 was purchased only by P.S. Dahrawka and deceased Kaithuamihad no contribution in the purchase of the said property. It is submittedCthat according to Mizo Customary Law, Thanhnuna being the only sonwas the only legal heir of his late father P.S. Dahrawka. It is submittedthat Thansangi Huha (appellant No.4 herein) was divorced on 20[th] June,1980. She however chose not to stay with her mother for 17 long years.It is submitted that she came to live with her mother Kaithuami onlyDafter the death of Thanhnuna. It is therefore submitted that the presentappeals deserve to be dismissed.

15. We have considered the rival submissions. We find that theDistrict Council Court, Aizawl, on second remand, upon considering thefactual matrix, particularly Section 109(3) and Section 109(10) of theEMizo Customary Law, observed that though as per the Mizo CustomaryLaw, it is the youngest son, who would be entitled to inherit the propertyof his father; there is an ample scope for distribution of the property in afair and reasonable manner. The District Council Court, Aizawl has foundthat in case of a rich father, the property can be divided proportionatelyamongst the sons.F

16. The District Council Court further found that insofar as thefemale members of the family, who are already married and living inseparate households are concerned, they are not entitled to any share.The District Council Court further found that under the Mizo CustomaryLaw, inheritance also depends upon the responsibilities carried out byGthe legal heir. It has been found that till his death, Thanhnuna was lookingafter his mother. However, after his death, Thansangi Huha (appellantNo.4 herein) came back to her original home to look after her agedmother Kaithuami. It was found that the provision of Mizo CustomaryLaw relating to ‘divorced’ (Hringkir) in the matter of inheritance wouldHapply to her and her right to inheritance of her father’s properties subsists

by virtue of her being divorced (Hringkir) and coming back to the originalfamily for looking after the mother. The District Council Court foundthat Thansangi Huha looked after her mother till her death and alsodischarged the responsibility of erecting ceremonial tombstone for hermother. The District Council Court also found that after exclusion of thedaughters of deceased P.S. Dahrawka and Kaithuami, who were marriedand living in separate households and one daughter of Thanhnuna, i.e.,Laldinpuii, who was also married into a different clan, the contest wasbetween Thansangi Huha (appellant No.4 herein), the youngest daughterof deceased P.S. Dahrawka and Kaithuami, who after divorce cameback to her house and was looking after her mother on one hand andLalmuanpuii (respondent No.3 herein), the other daughter of deceasedThanhnuna.

17. The District Council Court found that since Thansangi Huha(appellant No.4 herein) had discharged her responsibility of looking afterher mother till her death and was occupying the main bed and reassumingher father’s clan title ‘Hahu’, her right to inherit her father’s propertiescould not be defeated. It further found that on the other hand Lalmuanpuii(respondent No.3 herein), though a female, was grand-daughter fromthe male lineal descent of deceased P.S. Dahrawka. She was unmarriedand purely a ‘Hahu’ in the line of P.S. Dahrawka. It found that her rightto inheritance in the instant dispute was safeguarded by the CustomaryLaw in the absence of descendants having a better right for the purpose.The District Council Court therefore found that taking into considerationthe principle of Mizo Customary Law of Inheritance and the spirit ofequity, which is paramount to Mizo Customary Law, it was appropriatethat the property be divided between Thansangi Huha (appellant No.4herein) and Lalmuanpuii (respondent No.3 herein).

18. The Gauhati High Court, Aizawl Bench, speaking throughMadan B. Lokur, C.J. (as he then was), in the case of Thansiami vs.Lalruatkima and ors.[1] has also held that the inheritance depends uponthe question as to whether a person supports the deceased in his old ageor not. It has been held that even if a natural heir does not support hisparents, he would not be entitled to inheritance. It has further been heldthat even if there is a natural heir, a person who supports the person untilhis death could inherit the properties of that person.

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A19. We therefore find that the view taken by the District CouncilCourt, Aizawl, on second remand, is based on the consideration of equityand the responsibility of a legal heir to look after the elders in the family.The said view is also supported by the judgment of the Gauhati HighCourt, Aizawl Bench in the case of Thansiami vs. Lalruatkima andors. (supra). We respectfully agree with the said view.B

20. We are therefore of the considered view that the High Courtwas not justified in reversing the well-reasoned and equitable judgmentand order passed by the District Council Court dated 28[th] February, 2006in C.A. No.12 of 1997.

C21. In the result, we pass the following order:

A.The appeals are allowed.

B.The judgment and order of the Gauhati High Court, AizawlBench dated 7[th] November, 2007 in RSA No.12 of 2006and Cross Objection No.4 of 2006, is quashed and set aside.D

C.The judgment and order of the District Council Court, Aizawldated 28[th] February, 2006 in C.A. No.12 of 1997, is affirmed.

22. Pending application(s), if any, shall stand disposed of. Thereshall be no order as to costs.

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Devika Gujral

Appeals allowed.

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