Page No.# 1/13 GAHC030002892021 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RFA/27/2021 Zodinpuii Tlangnuam Aizawl Mizoram VERSUS Vanlalpari Luangmual Lunglei Mizoram Advocate for the Petitioner : Mr. Joseph Lalchhanhima Renthlei Advocate for the Respondent : Mr. Johny L Tochhawng ::: B E F O R E::: THE HON’BLE MR. JUSTICE NELSON SAILO Date of Hearing : 24.03.2025 Date of Judgment : 27.03.2025 J U D G M E N T & O R D E R (CAV) Heard Mr. Joseph L. Renthlei, learned counsel for the appellant and Mr. Johny L. Tochhawng, learned counsel for the respondent. This is an appeal filed by the Page No.# 2/13 appellant against the Judgment & Order dated 23.08.2021 and the Decree dated 23.08.2021 passed by the Court of Senior Civil Judge, Lunglei in Heirship Certificate No. 66/2017 by which the respondent/plaintiff was held to be the legal and rightful wife of late Thannghinglova while the counter claim filed by the appellant was dismissed. The learned Court below has also directed the appellant to pay a sum of Rs. 10,000/- as cost of the Suit to the respondent plaintiff and another sum of Rs. 5,000/- as Court fees. The learned Court below has also directed issuance of Heirship Certificate in favor of the respondent in respect of Family Pension and Leave Salary of the deceased Thannghinglova. [2.] Brief facts of the case is that on the death of Sh. Thannghinglova, the respondent submitted an application for issuance of HeirshipCertificate in her favor in respect of Family Pension and Leave Salary claiming to be the legal wedded wife of late Sh. Thannghinglova. After a notice was published in the local newspaper about the application for Heirship Certificate submitted by the respondent, the learned Court below granted Heirship Certificate No. 66/2017 in favor of the respondent as applied for by her. However, being aggrieved with the same, the instant appellant filed Regular First Appeal No. 16/2018 before this Court challenging the Heirship Certificate on the ground that it was issued without adducing evidence. The appeal was disposed of by this Court vide Order dated 09.05.2019 by remanding the matter back to the Court of Senior Civil Judge, Page No.# 3/13 Lunglei to proceed with the case afresh from the stage of filing written statement by the appellant. On remand, the appellant filed her written statement and the parties adduced their evidence. Thereupon, the learned Trial Court vide the impugned Judgment & Order dated 23.08.2021 disposed of the Heirship Certificate application in favor of the respondent in the manner as already stated herein above. Aggrieved, the appellant is again before this Court. [3.] Mr. Joseph L. Renthlei, learned counsel submits that the appellant and the deceased got married in accordance with the Mizo Customary Law and have three (3) children out of their wedlock. During the subsistence of their marriage, the appellant and her late husband had a lot of fights and disagreements between themselves since her late husband had an acute alcohol dependency problem. The same resulted in their separation but there was no judicial separation in any form or in accordance with the Mizo Customary Law. The deceased continued to maintain the appellant till his death in accordance with the order dated 21.03.2011 passed by the Court concerned on an application filed by the appellant under Section 125 Cr.PC. That the late husband of the appellant shortly before his death came back to live with the appellant and he expired on 26.10.2016. His Death Certificate was issued to the appellant and that the respondent was not even present at the time of his funeral. The learned counsel submits that till their separation, the late husband of the appellant may have cohabited with the Page No.# 4/13 respondent but the marriage of the appellant with her late husband subsisted. Therefore, even assuming that the respondent got married to her late husband as per the Mizo Customary Law, the same would be void ab initio as the same would be in clear violation of Rule 21 of the CCS Conduct Rules and also Section 10 of the Mizo Marriage, Divorce and Inheritance of Property Act, 2014 (Inheritance Act). [4.] The learned counsel submits that the respondent claims to have secured certain documents such as Voter’s I.D Card, Family Ration Card and Aadhar Card wherein, she has been depicted as wife of late Thannghinglova. He submits that the respondent obtained her Aadhar Card only on 03.10.2017 whereas, the deceased had expired on 26.10.2016. He submits that according to the respondent in her evidence before the learned Trial Court, the son of the appellant in the year 2014 forcibly took her husband (the deceased) and after which, the deceased never return back to her. The Voter’s I.D Card and the Family Ration Card have all been obtained by the respondent after the year 2014 which only goes to show that the respondent cannot have any claim that she was duly married with the deceased person. [5.] The learned counsel further submits that late Thannghinglova who was working in the Agriculture Department in fact on 28.04.2016 wrote to the District Agricultural Officer, Lawngtlai District, Lawngtlai requesting the said authority not to give out his salary to anyone unless it was he himself or his son Lalthanpuia, Page No.# 5/13 residing at ChawnpuiVeng, Aizawl. He also stated that he had come to learn that the respondent was trying to take his salary and that she had taken his important documents including his GP Fund withdrawal application and GP Fund statement from the Directorate of Agriculture Department in Aizawl without his approval. In his letter he clearly stated that he and the respondent were not married and that she was not his wife and did not have his authorization. The learned counsel submits that the same was exhibited by the appellant as Exhibit D-3 but however, the same was not considered by the learned Trial Court. [6.] The learned counsel further submits that an RTI application was submitted to the Agriculture Department asking as to whether late Thannghinglova had sought for any permission to marry the respondent in accordance with the provisions of Rule 21 of the CCS Conduct Rules and as to whether he had divorced his first wife through a Court decree. Further, if he had not divorced his first wife, then whether he maintain her or not and by which order. A copy of all the documents submitted by the respondent to the Department was also sought for through the said application. In response to the RTI query, the appellant through her counsel was informed that late Thannghinglova did not make any application to marry the respondent and that the Department was not aware about his divorce with his first wife through a Court decree. It was stated that late Thannghinglova maintained his first wife and a copy of the Court’s order was enclosed with the reply. Further, a Page No.# 6/13 copy of the Legal Notice under Section 80 CPC which the respondent had given to the Department for the service benefits of late Thannghinglova was also given to the appellant. The learned counsel submits that the said documents were duly exhibited by the appellant but however, the learned Trial Court failed to take the same into consideration while passing he impugned Judgment & Order. [7.] The learned counsel also submits that the late husband of the appellant had also left behind a Will dated 03.05.2016 wherein, he had clearly stated that 100% of his pension would be the share of the appellant, his wife. The same was duly probated by the Court of Senior Civil Judge, Aizawl in Probate application No. 16/2018 vide Order dated 11.09.2018. However, the same was also not considered by the learned Trial Court while passing the impugned Judgment & Order. [8.] The learned counsel also submits that according to the applicant witness - 4, who deposed in favor of the respondent, she was the bridesmaid on the marriage of the respondent with late Thannghinglova on 04.06.2011 and that the bride’s price of Rs. 420/- was given by one T. Laltlanchhunga on behalf of late Thannghinglova and it was received by K. Lalrammawia in the presence of Tlanlawma, the then President of Young Mizo Association, Luangmual Branch, Lunglei and R. Rualkhuma at Lungmaul, Lunglei. However, in her cross- examination, she stated that she did not know whether the bride’s price was paid or not. The learned counsel therefore submits that under the circumstance, the Page No.# 7/13 evidence of applicant’s witness No. 4 is not at all reliable and the learned Trial Court could not have given the Heirship Certificate for Family Pension and Leave Salary in favor of the respondent. [9.] The learned counsel also submits that according to the learned Trial Court, since the appellant failed to subscribe her signature in her pleadings, her written objection and counter claim cannot be maintained as it does not conforms the requirements prescribed by Order 4 Rule 1 and Order 6 Rule 14 of the Code of Civil Procedure, 1908 (CPC). The learned counsel submits that even the respondent too had failed to conform with the said provisions of law since she had not subscribed her signature in her pleadings and it was only her counsel who had put the signature. Therefore, the learned Trial Court could not have rejected the written statement and counter claim of the appellant while accepting the application/plaint submitted by the respondent. The learned counsel submits that at any rate, failure to put signature in the plaint is a curable defect and that pleadings of the appellant could not have been rejected in view of the fact that she herself had appeared before the Court and stood in the witness box to give her deposition as DW-1. He therefore submits that the impugned Judgment & Order and Decree passed by the learned Trial Court cannot be sustained and the same should be set aside. The appellant being the legally wedded wife of late Thannghinglova, the Family Pension and Leave Salary should be given to her. In support of his submission, the learned Page No.# 8/13 counsel has relied upon the following authorities:- (1) Uday Shankar Triya Vs. Ram Kaleswar Prasad Singh & Ors. AIR 2006 SC 269 (2) Kailash Singh Vs. Hiralal Dey (1993) 1 GLR 494 (3) Rameshwar Devi Vs. State of Bihar & Ors. (2000) 2 SCC 431 (4) Dhurandhar Prasad Sing Vs. Jai Prakash University & Ors. (2001) 6 SCC 534 (5) Yamunabai Anantrao Adhav Vs. Anatrao Shivvram Adhav & Anr. (1988) 1 SCC 530 & (6) Madan Mohan Singh & Ors. Rajni Kant & Ors. (2010) 9 SCC 209 [10.] Per contra, Mr. Johny L. Tochhawng, learned counsel for the respondent submits that the written statement and the counter claim of the appellant being not in conformity with Order 6 Rule 14 CPC, the same was rightly rejected by the learned Trial Court. He submits that even otherwise, the appellant failed to cure the defect by taking appropriate steps during the pendency of the case before the Trial Court. He submits that the Trial Court had framed three (3) issues to be considered whereas, the appellant has travelled beyond the issues framed. He submits that one of the issue which was framed by the learned Trial Court was whether the appellant or the respondent were the legal and rightful wife of the deceased Page No.# 9/13 Thannghinglova. In support of her claim, the respondent exhibited the payment of bride’s price and the Marriage Certificate indicating her marriage with late Thannghinglova. However, the appellant neither exhibited a Marriage Certificate nor a document showing the payment of bride’s price by late Thannghinglova. Therefore, under the such circumstance, the learned Trial Court declined to accept her claim that she was married with late Thannghinglova. The finding is based on the evidence led by the respondent and therefore should be upheld by this Court. [11.] The learned counsel further submits that in so far as the claim of the appellant that she is the legally wedded wife of late Thannghinglova in view of the fact that he was maintaining her until his death and hence establishes the fact that she is his wife is concerned, the learned counsel submits that marriage is not the pre-condition for grant of maintenance under Section 41 Cr.PC. He submits that the Apex Court in the case of Vimal (K.) Vs. Veerswamy (K.) reported in (1991) 2 SCC 275 held that Section 125 Cr.PC is meant to achieve social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for supply of food, clothing and shelter to the deserted wife. The term ‘wife’ in Section 125 Cr.PC includes a woman who has been divorced by a husband or who has obtained divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. He therefore submits that merely because the Page No.# 10/13 appellant was enjoying maintenance, she cannot claim to be the legally wedded wife of late Thannghinglova. The learned counsel also refers to the case of Chanmuniya Vs. Virendra Kumar Singh Kushwaha reported in (2011) 1 SCC 141. In respect of the maintainability of the written statement and counter claim, the same can only be maintainable if it is presented in terms of the prescription of the relevant provisions of the CPC. In support of his submission, the learned counsel relies upon the case of Sinnamani & Anr. Vs. G. Vettivel & Ors. reported in (2012) 5 SCC 759. [12.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. The learned Trial Court while decreeing the Heirship Certificate application in favor of the respondent, declined to entertain the written statement and counter claim of the appellant on the ground that the same was not duly signed by the appellant as required under the provisions of Order 4 Rule 1 and Order 6 Rule 14 CPC. Order 4 Rule 1 CPC provides that every Suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in its behalf and every plaint shall comply with the rules contained in Order 6 and 7 so far as they are applicable. Order 6 Rule 14 provides that every pleadings shall be signed by the party and his pleader, if any. Provided that where a party pleading is by reason or absence or for other good cause unable to sign the pleading, it may be signed by Page No.# 11/13 any person duly authorized by him to sign the same or to sue or defend on his behalf. [13.] The Apex Court in Uday Shankar Triya (supra) in the given facts of that case held that if a plaint is not signed by the plaintiff or his duly authorized agent due to any bonafide error as required under Order 6 Rule 14 CPC, the defect can be permitted to be rectified either by the Trial Court at any time before judgment or even by the appellate court by permitting the appropriate amendment when such defect comes to its notice during hearing. A coordinate Bench of this Court in Kailash Singh (supra) in the given facts of that case while examining as to whether Order 6 Rule 14 and 15 CPC are mandatory or directive by agreeing to the decision rendered by the Punjab & Haryana High Court in Smt. Mukhtiar Kaur Vs. Smt. Ghulab Kaur reported in AIR 1977 Punjab & Haryana 257 held that a stage has come in our jurisprudence where we should not be tied down with procedural technicalities and instead we should try to do substantial justice to the parties. It would therefore be unfair and injustice to reject the plaint merely on the ground that the plaint being not properly signed or verified as the plaintiff himself came to the witness box and made out a case in the plaint. Consequently, it was held that the provisions of Order 6 Rule 15 CPC are not mandatory but directive in nature and that any defect can be cured at any stage. [14.] Coming back to the present case, for want of signature of the appellant in Page No.# 12/13 her plaint, her written statement and counter claim was not considered by the learned Trial Court. It is therefore seen that the RTI reply dated 12.06.2018, the Judgment & Order dated 04.03.2011 in Criminal Complaint No. 99/2009, the Legal Notice dated 08.11.2016, the Will dated 03.05.2016 and Form - 7 dated 18.01.2016 exhibited as Exhibit D-5, D-6, D-7, D-9 and D-12 respectively amongst others, have not received consideration of the learned Trial Court and under the circumstance, this Court is of the considered view that it is a fit case for remanding the matter back to the learned Trial Court by giving an opportunity to the appellant to cure the defect of having not signed in the pleadings since such a defect is curable defect in terms of the Judgment referred to herein above Kailash Singh (supra). [15.] Another aspect of the matter which has drawn the attention of this Court is that three (3) issues were initially framed on 27.06.2019 but later on, the three (3) issues were modified as reflected in paragraph No. 6 of the impugned Judgment & Order. It appears that the three (3) issues were modified at the time of passing the impugned Judgment & Order as the order sheet of the Court does not reflect when it was framed. Since the issues framed at two different point of time cannot be said to be similar and identical, it would only be fair to given the rival parties an opportunity to place their arguments on the basis of the issues framed subsequently as reflected in paragraph No. 6 of the impugned Judgment & Order. Page No.# 13/13 [16.] In the result, without expressing anything on merits and in view of the observation made herein above, the matter is remanded back to the learned Trial Court for fresh consideration by allowing the appellant to cure the defect and thereafter to consider and dispose of the Heirship Certificate application after giving due opportunity of hearing to the parties. Since the Heirship Certificate application has been pending since institution in the year 2017 although for the reason that an appeal was filed earlier and the matter remanded back, the learned Trial Court shall therefore consider and dispose of the same as expeditiously as possible and preferably within a period of three (3) months from the date of appearance of the parties. The parties are directed to appear before the learned Trial Court on 09.04.2025 whereafter, the learned Trial Court shall proceed in accordance with law and bring the case to its logical conclusion. [17.] Registry shall send back the LCR to the Trial Court immediately. JUDGE Comparing Assistant