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CASE NO.:

Writ Petition (civil) 137 of 1997

Writ Petition (civil) 674 of 1998

PETITIONER:

CLARENCE PAIS & ORS.

Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT: 22/02/2001

BENCH:

S. Rajendra Babu & R.C. Lahoti

JUDGMENT:

J U D G M E N TL...I...T.......T.......T.......T.......T.......T.......T..J

RAJENDRA BABU, J. :

These two writ petitions have been filed challenging the

validity of Section 213 of the Indian Succession Act, 1925

(hereinafter referred to as the Act] as unconstitutional

and to restrain the Union of India from enforcing the

provisions thereof against the Indian Christians.

In Writ Petition (C) No. 137 of 1997, petitioner No. 1

is an Indian Christian and a citizen of India. He has been

in the legal profession for about 48 years, and on account

of experience gained in having appeared in many probate

cases and had occasions to obtain probate of his fathers

Will, his experience has made him decide to file this writ

petition. Petitioner No.2 is a Catholic Association of

Dakshina Kannada, Karnataka. It is submitted that the

effect of taking out probate of a Will is to establish the

genuineness or validity of the Will and the grant of probate

is not a condition precedent to the vesting of the estate in

the executor in light of the provisions of Section 211 of

the Act. Section 211 of the Act provides for vesting of the

property in the executor or administrator, as the case may

be, of a deceased person in his legal representative for all

purposes. However, when the deceased is a Hindu,

Muhammadan, Buddhist, Sikh, Jaina or Parsi nothing contained

in the Act shall vest in an executor or administrator any

property of the deceased person, which would otherwise have

passed by survivorship to some other person. Section 213(1)

requires that no right as executor or legatee under a Will

can be established in a Court of Justice without obtaining

probate or letters of administration of the Will under which

such right is sought to be established. Section 57 of the

Act makes it clear that the provisions of that part which

are set out in Schedule III subject to the restrictions and

modifications specified therein, shall apply to all Wills

and codicils made by any Hindu, Buddhist, Sikh or Jaina

after the first September, 1870 who are originally residents

in the jurisdiction of the High Courts of Judicature at

Madras and Bombay or subject to the jurisdiction of

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Lieutenant Governor of Bengal and to all such Wills and

codicils made outside those territories and limits so far as

relates to immovable property situate within those

territories or limits and to all Wills and codicils made by

any Hindu, Buddhist, Sikh or Jaina on or after the first day

of January, 1927 to which those provisions are not applied

by clause (a) and (b), provided that marriage shall not

revoke any such Will or codicils. In view of the aforesaid

provisions, there is compulsory requirement of probating a

Will to establish such a right by virtue of the provisions

of Section 213 which is made applicable and is restricted to

Indian Christians and certain other categories of persons

professing Hindu and other faiths. The contention of the

petitioner is that there is no rational or discernible basis

for making the requirement of probate necessary for only a

limited section of Indian citizens such as Indian Christians

excluding other sections. The Indian Succession Act, 1925

repealing the Indian Succession Act, 1865 was enacted by

Parliament with a view to consolidate the law applicable to

intestate and testamentary succession in India and, as a

consequence no intentional change in the law was made at

that stage. While no distinction is made with respect to

establishing a right to property of a person dying intestate

belonging to different communities and professing different

faiths, Christians alone are subjected to this requirement.

In Writ Petition (C) No. 674 of 1998 petitioner is an

Indian Christian who belongs to Roman Catholic community

residing in the State of Kerala. The petitioner was the

sole beneficiary of a registered Will dated 15.12.1986

executed by his aunt Mrs. Lissa Jos Arakal owner of a flat

No. 5, Ashiana Apartment, Pitam Pura, Delhi. She was a

Christian and she remained unmarried till her death. Out of

love and affection towards the petitioner she executed a

Will on 15.12.1986 bequeathing her entire rights in respect

of the said flat in favour of the petitioner. She died on

9.8.1991 at Lourdes Hospital, Kochi. The petitioner

received a letter in August 1993 from the Secretary of M/s

Loyola Co- operative Housing Society, Ashiana Apartments,

Road No. 41, Pitam Pura, Delhi stating that the committee

of the Society had decided not to hand over the flat to him

without any court direction. The petitioner also informed

the Society not to transfer the said flat to any one else

other than himself. However, he received a reply from the

Society stating that Mr. Barley Arakal is the nominee of

the testatrix as per their record and as such since there is

a dispute regarding the property the status quo will be

maintained until further orders. It is stated that the

petitioner is not in a position to establish his legal right

over the property in question or to obtain any relief from

the court on account of the fact that he is a Christian who

is bound by the restriction provided under Section 213 of

the Act and since Section 213 of the Act comes in the way of

exercising his right, the petitioner is challenging the

validity of the said provision for identical reasons as set

forth in the connected writ petition. It is also brought to

our notice in these proceedings that in view of the harsh

procedure contemplated in the provisions under challenge the

Kerala Legislature has enacted an amendment known as Indian

Succession (Kerala Amendment) Act, 1986 dated 14.3.1997 by

which sub-section (2) of Section 213 of the Act has been

amended to the effect that after the word Muhammadans the

words or Indian Christians shall be inserted. It is thus

evident from this provision that it would apply to the State

of Kerala in respect of the property held by the deceased

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but it is not clear whether the amendment would apply to the

property of a testator who belongs to the State of Kerala in

respect of the property situated outside the State of

Kerala, as in the present case. The petitioner points out

the anomaly arising in the law. Thus a Christian residing

in the State of Kerala owning property therein if dies after

making a Will, the legatee thereto need not to obtain a

probate in terms of Section 213 of the Indian Succession Act

before establishing their right, while those residing in

other parts of the country are required to do so. The

anomaly pointed out by the petitioner is that the Will is

made in respect of a property situate in some part of the

country other than Kerala.

The defence taken by the Government of India is that the

members of the Christian community are not put to any

discrimination and they are compelled to obtain probate or

letters of administration of the Wills only by way of rule

of evidence and procedure and it is intended to provide for

a right of means of establishing the genuineness of a Will

conclusively. So far as marriage and divorce, infants and

minors, adoption, wills, intestacy and succession, joint

family and partition and all matter in respect of which

parties in judicial proceedings were immediately before the

commencement of the Constitution subject to their personal

law, it is open to the State Legislatures to undertake any

legislation of the nature of Section 213 of the Act. The

State Governments bring in changes in personal law from time

to time as per the social conditions prevailing in the

particular States. Therefore, the amendment made in the

State of Kerala would not discriminate the persons residing

in other parts of the country. The contention is that the

classification has achieved social acceptance as is evident

from the fact that it has been in existence in the statute

book for a quite long time and it is not established that

how such classification in the statute suffers in any manner

from discrimination, and the provisions being procedural in

nature are intra vires to the Constitution. It is further

submitted that the Central Government has been consistently

following a policy of non-interference in the personal laws

of the minority communities unless the necessary initiative

for amendments or repeal from a majority or sizable cross-

section of the community arises.

On several representations having been made in this

regard by the Christian community in India amendment was

sought to be introduced by way of a Bill to amend Section

213 of the Act to bring Christians at par with other

communities who are not required to obtain probate. The

grievance of the petitioners in these cases, it is stated,

is well brought out in the Statement of Objects and

Reasons dated May 13, 1942 in respect of proposed amendment

of Section 213 which reads as under:-

Prior to 1901, Indian Christians laboured under a

serious grievance, namely, that they were compelled to

obtain probate of wills and letters of administration with

liability to pay death duties on the death of every owner of

property under the Indian Succession Act X of 1865, while

Hindus and Muslims were exempt from the provisions of the

Act. They have since been partially relieved by being

placed practically on the same footing as their

non-Christian countrymen in cases of intestacy under the

Indian Christian Estates Administration Act VII of 1901;

but where the deceased has left a will, they are still bound

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to obtain probate and pay probate duty as required by

section 213 of the Indian Succession Act XXXIX of 1925, a

section which does not apply to will of Hindu, Buddhists,

Sikhs or Jains except where such wills are of the class

specified in clauses (a) and (b) of section 57 and to all

wills of Muhammadans.

The necessity of making wills has been imposed upon

Indian Christians by the provisions of the Indian Succession

Act as to intestate succession being made applicable to

them, which are far in advance of their usages and are

derived from English law. It is felt as a serious hardship

that in such circumstances Indian Christians should be

compelled to obtain probate and should be made liable to pay

death duties while their non-Christian countrymen to whom

wills are a luxury are exempt. From this injustice they

should be relieved by placing Indian Christians on the same

footing as Hindus and Muhammadans in Sections 213 and 370 of

the Act.

Sections 57 and 213 of the Act provide as follows :

57. Application of certain provisions of Part to a

class of wills made by Hindus, etc. The provisions of this

Part which are set out in Schedule III shall, subject to the

restricts and modifications specified therein, apply

(a) to all wills and codicils made by any Hindu,

Buddhist, Sikh or Jaina, on or after the first day of

September, 1870, within the territories which at the said

date were subject to the Lieutenant-Governor of Bengal or

within the local limits of the ordinary original civil

jurisdiction of the High Courts of Judicature at Madras and

Bombay; and

(b) to all such wills and codicils made outside those

territories and limits so far as relates to immovable

property situate within those territories or limits; and

(c) to all wills and codicils made by any Hindu,

Buddhist, Sikh or Jaina, on or after the first day of

January, 1927, to which those provision:

Provided that marriage shall not revoke any such will or

codicil.

Section 213. Right as executor or legatee when

established. (1) No right as executor or legatee can be

established in any Court of Justice, unless a Court of

competent jurisdiction in India has granted probate of the

will under which the right is claimed, or has granted

letters of administration with the will or with a copy of a

authenticated copy of the will annexed.

(2) This section shall not apply in the case of the

wills made by Muhammadans, and shall only apply-

(i) in the case of wills made by any Hindu, Buddhist,

Sikh or Jaina where such wills are of the classes specified

in clauses (a) and (b) of section 57; and

(ii) in the case of wills made by any Parsi dying, after

the commencement of the Indian Succession (Amendment) Act,

1962, where such wills are made within the local limits of

the ordinary original civil jurisdiction of the High Courts

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at Calcutta, Madras and Bombay and where such wills are made

outside those limits, in so far as they relate to immovable

property situate within those limits.

Hindu Wills Act, 1870 is the forerunner of Section 57 of

the Act. This Section without the proviso together with

Schedule III except Article (5) is Section 2 of Hindu Wills

Act, 1870 as amended by Section 154 of the Probate and

Administration Act, 1881. The proviso is proviso to Section

3 of the Hindu Wills Act. Thus, the scheme of the said

enactment is retained in Section 57 of the Act.

The scope of Section 213(1) of the Act is that it

prohibits recognition of rights as an executor or legatee

under a will without production of a probate and sets down a

rule of evidence and forms really a part of procedural

requirement of the law of forum. Section 213(2) of the Act

indicates that its applicability is limited to cases of

persons mentioned therein. Certain aspects will have to be

borne in mind to understand the exact scope of this section.

The bar that is imposed by this section is only in respect

of the establishment of the right as an executor or legatee

and not in respect of the establishment of the right in any

other capacity. The section does not prohibit the will

being looked into for purposes other than those mentioned in

the section. The bar to the establishment of the right is

only for its establishment in a court of justice and not its

being referred to in other proceedings before administrative

or other Tribunal. The section is a bar to everyone

claiming under a will, whether as plaintiff or defendant, if

no probate or Letters of Administration is granted. The

effect of Section 213(2) of the Act is that the requirement

of probate or other representation mentioned in sub-section

(1) for the purpose of establishing the right as an executor

or legatee in a court is made inapplicable in case of a will

made by Muhammadans and in the case of wills coming under

Section 57(c) of the Act. Section 57(c) of the Act applies

to all wills and codicils made by any Hindu, Buddhist, Sikh

or Jain, on or after the first day of January, 1927 which

does not relate to immovable property situate within the

territory formerly subject to the Lieutenant-Governor of

Bengal or within the local limits of the ordinary civil

jurisdiction of the High Courts of Judicature at Madras and

Bombay, or in respect of property within those territories.

No probate is necessary in the case of wills by Muhammadans.

Now by the Indian Succession [Amendment] Act, 1962, the

section has been made applicable to wills made by Parsi

dying after the commencement of the 1962 Act. A combined

reading of Sections 213 and 57 of the Act would show that

where the parties to the will are Hindus or the properties

in dispute are not in territories falling under Section

57(a) and (b), sub-section (2) of Section 213 of the Act

applies and sub-section (1) has no application. As a

consequence, a probate will not be required to be obtained

by a Hindu in respect of a will made outside those

territories or regarding the immovable properties situate

outside those territories. The result is that the

contention put forth on behalf of the Petitioners that

Section 213(1) of the Act is applicable only to Christians

and not to any other religion is not correct.

We have shown above that it is applicable to Parsis

after the amendment of the Act in 1962 and to Hindus who

reside within the territories which on 1.9.1870 were subject

to the Lt. Governor of Bengal or to areas covered by

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original jurisdiction of the High Courts of Bombay and

Madras and to all wills made outside those territories and

limits so far as they relate to immovable property situate

within those territories and limits. If that is so, it

cannot be said that the section is exclusively applicable

only to Christians and, therefore, it is discriminatory.

The whole foundation of the case is thus lost. The

differences are not based on any religion but for historical

reasons that in British Empire in India, probate was

required to prove the right of a legatee or an executor but

not in Part B or C States. That position has continued

even after the Constitution has come into force. Historical

reasons may justify differential treatment of separate

geographical regions provided it bears a reason and just

relation to the matter in respect of which differential

treatment is accorded. Uniformity in law has to be

achieved, but that is a long drawn process. Undoubtedly,

the States and Union should be alive to this problem. Only

on the basis that some differences arise in one or other

States in regard to testamentary succession, the law does

not become discriminatory so as to be invalid. Such

differences are bound to arise in a federal set up.

The learned counsel for the Petitioners relied on the

decisions in B.Venkataramana vs. State of Madras & Anr.,

AIR 1951 SC 229, Sheokaransingh vs. Daulatram, AIR 1955

Raj. 201, State of Rajasthan & Ors. vs. Thakur Pratap

Singh, AIR 1960 SC 1208, Mrs.Hem Nolini Judah vs. Mrs.

Isolyne Sarojbashini Bose, 1962 Supp.(3) SCR 294, Mary Sonia

Zachariah vs. Union of India, 1995(1) KLT 644, Ahmedabad

Women Action Group (AWAG) & Ors. vs. Union of India, 1997

(3) SCC 573 and Preman vs. Union of India, 1998(2) KLT

1004. However, in the light of the above conclusion, it is

unnecessary to refer to those decisions though some of them

may have bearing in analysing and understanding the scope of

the provisions which are made applicable exclusively to

Christians as it happened in the case of Section 118 of the

Act or in the case of the Indian Divorce Act. Therefore, we

have not adverted to any one of these provisions. If

Christians alone had been discriminated against by treating

them as a separate class, we think the argument could have

been understood and merited consideration.

In that view of the matter, we do not think there is any

merit in these petitions and the same stand dismissed@@

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accordingly. No costs.@@

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S. RAJENDRA BABU

R.C. LAHOTI

February 22, 2001.