Dismissed

H.Sangkhumi and 2 Ors. v. Sh Ronghinglova

Gauhati HC5 Mar 2025FAO/9/2024

Case brief

AI extract

What is this about?

First Appeal from Original Decree challenging a maintainability order on a Heirship Certificate application for a deceased brother's property against his nephew's claim as adopted son. The High Court found the impugned order was not a decree under CPC Section 96 and dismissed the appeal, holding non-mention of Section 33 of the 2014 Act in the plaint non-fatal.

What the court decided

AI extract

H.Sangkhumi and 2 Ors. Vs Sh Ronghinglova — Succession and Inheritance | Gauhati HC (2025)

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GAHC030006762024

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : FAO/9/2024

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H.Sangkhumi and 2 Ors. D/o Patea (L), R/o Zotlang, Aizawl, Mizoram 2: Rohmingthangi

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3: Thanchhum

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VERSUS

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Sh Ronghinglova S/o H.Mankima (L), R/o Vaivakawn, Aizawl, Mizoram

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Advocate for the Petitioner : Mr. Lalfakawma

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Advocate for the Respondent : Mr. C Tlanthianghlima

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B E F O R E

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HON’BLE MRS. JUSTICE MARLI VANKUNG ORDER

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06.03.2025

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Heard Mr. T. Lalzekima, learned counsel for the appellants, along with Mr. C. Tlanthianghlima, learned counsel for the respondent.

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This FAO is filed u/s 96 & 151 of the Code of Civil Procedure, 1908 r/w Section 17(2) of the Mizoram Civil Code Act, 2005 against the Order dated

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02.09.2024 and corrigendum Order dated 23.09.2024 passed by the Court of Civil Judge (Senior Division–I), Aizawl Judicial District, Aizawl in Heirship Certificate Application No. 1201 of 2023.

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The facts of the case in a nutshell is that Shri. H. Sangchhunga died on 17.08.2023 and left behind his immovable property covered by LSC No. 24/1973 located at Vaivakawn, Aizawl. The present appellants are the married sisters of the deceased Shri. H. Sangchhunga, while the sole respondent is the nephew of the deceased Shri. H. Sangchhunga. After the demise of Shri. H. Sangchhunga, the respondent herein approach the Court of the Senior Civil Judge, Aizawl by filing an application for issuance of Heirship Certificate in respect of the property covered by LSC No. 24 of 1973 on the grounds that he is the adopted son of the late Shri. H. Sangchhunga. The appellants herein, filed their written statement and counter claim by submitting that the appellant No. 1 is the legal heir of her deceased brother Shri. H. Sangchhunga as per the provisions of Section 31 (9) of the Mizoram Marriage, Divorce Act inheritance of the Property Act, 2014. The deceased Shri. H. Sangchhunga did not have any children during his lifetime and his wife Smt. K. C. Liankimi had predeceased him on 27.07.2014.

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On 02.09.2024, during the hearing on the maintainability of the Heirship Certificate Application, the learned trial Court found the Heirship Certificate Application No. 1201 of 2023 maintainable, by stating that the claim of inheritance for support of Shri. H. Sangchhunga till his death u/s 33 of the Mizo Marriage, Divorce and Inheritance of Property Act, 2014 is a mixed question of law and the same cannot be decided on the first hearing. Accordingly, the case was found maintainable. Aggrieved by the said order, hence the instant FAO.

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Mr. T. Lalzekima, learned counsel for the appellant submits that in the

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pleading of the respondent herein, the respondent had never claimed for a declaration that he is the legal heir of the deceased Shri. H. Sangchhunga u/s 33 of 2014 Act, that the learned Trial Court had erred in considering the claim of inheritance u/s 33 of the 2014 Act which was never pleaded by the respondent herein and thus the learned Trial Court had made the impugned order which is beyond the pleadings of the respondent.

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In support of his submissions, the learned counsel for the appellant relied on the Judgments of the Apex Court reported in Rajasthan Art Emporium Vs. Kuwait Airways and Anr., reported in (2024) 2 SCC 570, Shivaji Balaram Haibatti Vs. Avinash Maruthi Pawar, reported in (2018) 11 SCC 652 and Bachhaj Nahar Vs. Nilima Mandal and Anr., reported in (2008) 17 SCC 491, wherein it was held that the party is not entitled to seek relief for which he has not prayed for and that Court has to consider only the issues which are part of the pleadings on which parties are deciding the case.

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Mr. C. Tlanthianghlima, learned counsel for the respondent, on the other hand, submits that the present appeal is not maintainable in its present form and style since the impugned Order dated 02.09.2024 and the Corrigendum Order dated 23.09.2024 are not appealable orders u/s 96 of CPC which is a provision regarding ‘appeal from original decree’. The learned counsel submitted that the impugned orders dated 02.09.2024 is not a decree within the meaning of the CPC but is an order defined in Section 2 (14) of the CPC. He also submitted that Section 17 (2) of the Mizoram Civil Court Act basically deals with pecuniary jurisdiction when an appeal is allowed. The learned counsel further submit that the inherent power of the Court u/s 151 CPC cannot be invoked when there is an expressed provision under which relief can be claimed by the

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aggrieved party. He also pointed out that the impugned orders are also not appealable u/s 104 CPC or under order 43 CPC.

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The learned counsel for the respondent further submits that even though the respondent herein, had filed the application for issuance of the heirship certificate without mentioning his claim u/s 33 of the 2014 Act, however, on plain reading of the facts of the plaint, it clearly shows that the respondent herein had submitted his claim u/s 33 of the 2014 Act. Mere none mentioning of the provision of law, will not invalidate an order if the Court has requisite jurisdiction. He also submitted that the not mentioning of the relevant provision of law is a curable defect which can be taken care of during the proceedings of the case. He thus submits that there are no grounds to interfere with the impugned orders dated 02.09.2024 and Corrigendum Order dated 23.09.2024.

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Having considering the submissions made by the learned counsels for both the parties, this Court finds that the appellant had filed the instant appeal u/s 96 and Section 151 Civil Procedure Code, 1908 r/w Section 17 (2) of the Mizoram Civil Court Act, 2005. On perusal of Section 96 of the Civil Procedure Code it is seen that the said section refers to appeal from original decree. Section 2(2) of Civil Procedure Code defines “Decree" which means the formal expression of an adjudication which, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A preliminary decree is when the court decides on some matters of the suit, but does not dispose of the suit. Such a decree does not completely dispose of the suit but determines the rights with regard to some or one of the matters in controversy. A final decree is one which finally settles all questions in controversy between the parties.

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10. In the present case, none of the disputed matter has been looked into or adjudicated in the court nor was any evidence adduced by neither of the parties wherein the learned trial court had observed that the matter is a question of law and fact. Thus this court is of the considered opinion that the impugned order dated 02.09.2024 with Corrigendum Order dated 23.09.2024 cannot be termed as a ‘decree’ for filing an appeal under section 96 Civil Procedure Code . Subsequently, Section 17 (2) of the Mizoram Civil Court Act, 2005 is also found not applicable.

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11. This court is also of the considered view that even though section 33 of the Mizo Marriage, Divorce and Inheritance of Property Act, 2014 was not specifically mentioned in the plaint, it does not make the application fatal and the learned trial court has not erred in mentioning the applicable law when the facts in the plaint lead to the same.

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In view of the above findings, this court finds it fit to dismiss the FAO in its present form and style and accordingly, FAO No. 9 of 2024 stands dismissed and disposed of.

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No costs.

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JUDGE

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Comparing Assistant

H.Sangkhumi and 2 Ors. v. Sh Ronghinglova

Case brief

What is this about?

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H.Sangkhumi and 2 Ors. v. Sh Ronghinglova

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