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CASE NO.:

Writ Petition (civil) 242 of 1997

PETITIONER:

John Vallamattom and Anr.

RESPONDENT:

Vs.

Union of India

DATE OF JUDGMENT: 21/07/2003

BENCH:

CJI

JUDGMENT:

J U D G M E N T

V.N. KHARE, C.J.I.

In this petition under Article 32 of the Constitution of India we are

concerned with the constitutionality of the provisions of Section 118 of the

Indian Succession Act, 1925 (hereinafter referred to as `the Act').

Petitioner No. 1 is an Indian citizen and is a Christian Priest belonging

to the religious denomination of Roman Catholics. The second petitioner is

also a member of the Christian community. The petitioners are aggrieved by

the discriminatory treatment meted out to the members of the Christian

community under the Act by which they were practically prevented from

bequeathing property for religious and charitable purposes and that has led

them to file this writ petition.

The history of Section 118 of the Act can be traced to an ancient

British statute of 1735 known as 'Charitable Uses Act, 1735' [hereinafter

referred to as "1735 Act"]. 1735 Act provided that gift by Will after 24th

June, 1736 of land for charitable purposes were void as a general rule. 1735

Act was repealed by Mortmain and Charitable Uses Act, 1888. Part I of

Mortmain and Charitable Uses Act, 1888 prohibited assurance of land to

charitable corporations by providing that land shall not be assured to or for

the benefit of or acquired by or on behalf of any corporation in Mortmain

otherwise than under Royal Licence or statutory authority was provided for

and if so assured shall be forfeited to the Queen. As per the Mortmain

statute the expression "assurance" included gift, conveyance, appointment,

lease, transfer, settlement, mortgage, charge encumbrance, devise, bequest

and every other instrument by deed, will or other instrument. The said

statute also provided that the land may be assured by Will to or for the

benefit of any charitable but unless the recipient charity was authorized to

retain land by the court or the Charity Commissioner, the land must,

notwithstanding any contrary direction contained in the Will, be sold within

one year from the testator's death or such extended period as may be

determined. If the land is not sold within the appointed period, the land

will vest in the official Trustee of charity lands and Charity Commissioner

was required to take steps to enforce the sale. The further restriction

provided that every assurance of immoveable property for any charitable use

is void unless it is executed within a period of twelve months before two

witnesses and enrolled in Chancery within six months before the death. The

said Act was enacted with a view to prevent persons from making ill-

considered death-bed bequests under religious influence. Amending Act

1891, further provided that the land may be assured by Will to or for the

benefit of any charitable use; but in such case it was required to be sold, as a

rule, within one year from the testator's death.

Even though the statute of Mortmain created severe restrictions on

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assurance of land for charitable purposes, it provided exemption in respect

of assurance of land of any quantity for a public park, museum, universities,

colleges or to any local authority, assurance by Will not exceeding 20 acres

for a public park or two acres for a museum, etc. In this respect it is relevant

to mention that while borrowing the restrictive clauses for Mortmain Statute

at the time of enacting Section 118 of Indian Succession Act, the Indian

Legislature omitted to include the exemptions in favour of the various

charitable uses as provided in the Mortmain and Charitable Uses Act, 1888.

The consequence is that as per the impugned provision the testamentary

disposition of property in relation to all forms of religious and charitable

purposes is subject to the same restriction as contained in Section 118 of the

Act.

Ultimately, on account of the harshness and unreasonableness of

Mortmain Statutes, the same were repealed by the British Parliament by an

Act known as Charities Act, 1960. The consequential provision of repeal is

provided hereunder:

"No right or title to any property shall be defeated or

impugned and no assurance or disposition of property

shall be treated as void or voidable, by virtue of any of

the enactment relating to mortmain on 29th July, 1960

the possession was in accordance with that right or title

or with assurance or disposition and no step has been

taken to assert a claim by virtue of any such enactment."

The Indian Succession Act, 1925 was enacted in the year 1925, by

reason whereof, the Indian Succession Act, 1865 was repealed. Section 3 of

the Act confers power on the State Government to exempt any race, sect or

tribe residing therein from the purview of Sections 5 to 49, 58 to 191 and

212. Testamentary succession has been dealt with in Part VI of the Act.

Section 58 provides that the provisions of Part VI would not apply to the

testamentary succession to the property of any Mohammedan, Hindu,

Buddhist, Sikh or Jain. Section 59 provides that every person of sound mind

not being a minor may dispose of his property by Will. Chapter VII of the

Act deals with void bequests.

Section 118 is contained in the said chapter which reads as follows :

"Sec. 118. Bequest to religious or charitable uses â\200\223

No man having a nephew or niece or any nearer

relative shall have power to bequeath any property

to religious or charitable uses, except by a will

executed not less than twelve months before his

death, and deposited within six months from its

execution in some place provided by law for the

safe custody of the will of living persons."

The said provision, thus, postulates that a person having a nephew or

niece or any nearer relative cannot bequeath his property for religious or

charitable use unless : (i) the will is executed not less than twelve months

before the death of testator; (ii) it is deposited within six months from its

execution in some place provided by law for the safe custody thereof; and

(iii) it remains in such deposit till the death of the testator.

The section plainly means that to the extent to which the bequest is

for religious or charitable uses, the application of this section is attracted

despite the fact that the bequest may be for only a part of the property or

some interest in the property.

The question as to who are the near relations for the purpose of

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Section 118 is to be determined according to the Table of Consanguinity, as

per Section 28 read with Schedule I of the Act. The term 'any nearer

relative' includes father, mother, son, daughter, grandfather, grandmother,

grandson, granddaughter, brother or sister. The word 'relative' means

legitimate relative and has no application to any relationship by marriage. It

includes adopted son also. So a Christian testator having a nephew or niece

or nearer relatives must execute the Will at least 12 months before his death,

and deposit it within six months, otherwise the bequest for religious or

charitable use would be void.

It is urged that having regard to the fact that the impugned provision

owes its origin to the statute of Mortmain which is repealed in England

cannot be any reasonable justification for retaining the same in the Indian

statute books particularly in view of the fact that upon coming into force

the Constitution of India, the pre-constitution statute could remain valid only

if the same conforms to the provisions contained in Part III thereof.

Further according to the petitioners the said provision is violative of

Articles 14 and 15 of the Constitution of India inasmuch as it :

a) discriminates against a Christian vis-à-vis non-Christians;

b) discriminates against testamentary disposition by a Christian vis-à-

vis non-testamentary disposition;

c) discriminates against religious and charitable use of property vis-à-

vis all other uses including not so desirable purposes;

d) discriminates against a Christian who has a newphew, niece or

nearest relative vis-à-vis Christian who has no relative at all; and

e) discriminates against a Christian who dies within twelve months of

execution of the Will of which he has no control.

It was submitted that a citizen of India is also entitled to live with

basic human dignity and, thus, has a right to effectuate his wishes according

to his own discretion by having a freedom to choose his legatee under the

Will as well as the purpose of bequest.

It was also submitted that the said provision is violative of Article 1

of the Vienna Declaration on the Right to Development adopted by the

World Conference on Human Rights of 1993 and Article 18 of the United

Nations Covenant on Civil and Political Rights 1966.

The petitioners have further raised a plea that it is an essential and

integral part of Christian Religious Faith to contribute for religious and

charitable purpose as has been prescribed in the Canon Law of the Code of

Canons of the Eastern Churches and the teachings of the Holy Bible, the

impugned provision violates Articles 25 and 26 of the Constitution of India.

The contention of the respondent, however, is that the Indian Succession

Act, 1925 being a pre-constitution enactment having regard to Article 372 of

the Constitution of India, continues to be in force within the territory of

India. The respondent would not deny or dispute the legislative history of

the said provision but contends that the Indian Parliament is not bound by

any legislative changes or development in this behalf in England or any

other foreign country. Further, contention of the respondent appears to be

that the Indian Christians form a separate and distinct class and in that view

of the matter they cannot be treated on equal footing to Muslims or Hindus

in the matter of bequeathing property for religious or charitable purposes.

The respondent contends that marriage, succession and like matters of

secular character cannot be brought within the guarantee enshrined under

Articles 25, 26 and 27 of the Constitution of India.

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Before proceeding further I may notice that a Division Bench of the

Kerala High Court in Preman vs. Union of India [1998 (2) KLT 1004] held

the said provision to be unconstitutional. A special leave petition filed there

against by a private party was, however, dismissed by a Bench of which I

myself as I then was, was a party stating :-

"Permission to file SLP is granted.

Delay condoned.

We find that the Special Leave Petitions are

at premature stage. Whatever grievance the

petitioner may have, may be agitated in the

hierarchy of proceedings in petitioner's appeal.

The Special Leave Petitions are dismissed."

It is neither in doubt nor in dispute that clause 1 of Article 13 of the

Constitution of India in no uncertain terms states that all laws in force in the

territory of India immediately before the commencement of the Constitution,

in so far as they are inconsistent with the provisions of Part III there, shall, to

the extent of such inconsistency, be void. Keeping in view the fact that the

Act is a pre-constitution enactment, the question as regards its

constitutionality will, therefore, have to be judged as being law in force at

the commencement of the Constitution of India [See Keshavan Madhava

Menon vs. The State of Bombay - 1951 SCR 228]. By reason of clause 1 of

Article 13 of the Constitution of India, in the event, it be held that the

provision is unconstitutional the same having regard to the prospective

nature would be void only with effect from the commencement of the

Constitution. Article 372 of the Constitution of India per force does not

make a pre-constitution statutory provision to be constitutional. It merely

makes a provision for the applicability and enforceability of pre-constitution

laws subject of course to the provisions of the Constitution and until they are

altered, repealed or amended by a competent legislature or other competent

authorities.

The equality clause enshrined in Article 14 of the Constitution of

India is of wide import. It guarantees equality before the law or the equal

protection of the laws within the territory of India. The restriction imposed

by reason of a statute, however, can be upheld in the event it be held that the

person to whom the same applies, forms a separate and distinct class and

such classification is a reasonable one based on intelligible differentia

having nexus with the object sought to be achieved.

The underlying principle contained in Section 118 of the Act

indisputably was to prevent persons from making ill-considered death-bed

bequest under religious influence. It is beyond any cavil of doubt that the

restrictions imposed thereby have a great impact on a person who desires to

dispose of his property in a particular manner which would take effect upon

or after his death.

The concept of ownership of a person over a property or a right

although is a varying one includes right to dispose of his property by Will.

The Indian Succession Act confers such a right upon all persons

irrespective of caste, creed or religion he belongs to. Section 59 of the Act

provides that every person of sound mind and who is not a minor is entitled

to dispose of his property by Will. Thus all persons who have sufficient

discretion and free will are capable of disposing of their property by Will.

Section 51 provides that a Will, the making of which is caused by fraud or

coercion or by such opportunity which takes away the free agency of the

testator is void. Section 63 deals with execution of unprivileged Wills

providing that the Will shall be signed by the testator and it shall be attested

by two or more witnesses each of whom should have seen the testator sign

or affix his mark to the Will.

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Section 118 of the Act imposes a restriction only on the Indian

Christians. The said restriction is not applicable to the citizens belonging to

other religions including Parsis. The short question, therefore, which arises

for consideration is as to whether the said restriction imposed by Section 118

of the Act is a reasonable one.

The right to own or dispose of a property mainly arises either by

operation of law or by reason of some act or event. An Indian Christian in

terms of the impugned provision is forbidden from making any bequest

excepting in the manner provided for therein. Such bequest is prohibited

only in the event the testator has a nephew or a niece or any nearer relative.

Indisputably, a wife of a testator, in terms of definition as contained in

Section 28 read with the First Schedule of the Act would not be a near

relative, although an adopted son would be. It is difficult to appreciate as to

why a testator would, although, be entitled to bequeath his property by way

of charitable and religious disposition if he has a wife but he would be

precluded from doing so in the event he has a nephew or a niece.

Furthermore, a charitable disposition of property for the benefit of the

public in the advancement of religion, knowledge, commerce, health, safety,

or any other object beneficial to the mankind has specifically been

acknowledged not only in different religious texts but also in different

statutes. Section 18 of the Transfer of Property Act, 1882 states that

restrictions in Sections 14, 16 and 17 shall not apply in the case of a transfer

of property for the benefit of public in the advancement of religion,

knowledge, commerce, health, safety, or any other object beneficial to

mankind. The Indian Succession Act does not define as to what would be a

charitable disposition, but the transfers to which it refers are the same as

those described in Section 92 of the Code of Civil Procedure, 1908, as trusts

created for a public purposes of a charitable or religious nature. The

illustration appended to the impugned provision gives a list of bequests for

religious or charitable uses which is of wide import. It is really baffling that

no protection has been given to the near relatives against death-bed gifts for

non-religious or charitable purpose. Furthermore, there is no restrictive

provision with regard to gift intervivos. It is really strange as to how a

statute may permit death-bed gifts to any other person for any purpose

whatsoever including illegal or immoral purposes but restriction has been

imposed on testamentary disposition for religious or charitable uses.

It may be seen that as per Section 118 of the Act bequest of property

for religious and charitable use fails if for any reason the testator suffers

from the misfortune of death within twelve months of execution of Will or if

it is not deposited in the place provided by law within 6 months. Since as

per the impugned provision the testator who lives beyond the statutory

period of twelve months is not able to execute his wishes in relation to his

property, the impugned provision defeats the object of the Will. In this view

of the matter, such a provision is unreasonable and arbitrary.

The matter may be examined from another angle. Assuming that the

purpose of Section 118 of the Act is to prevent bequest of property under

religious influence, there is no justification in restricting testamentary

disposition of property for charitable purpose. Charitable purpose includes

relief to poor, education, medical relief, advancement of objects of public

utility, etc. As the aforesaid charitable purposes are philanthropic and since

a person's freedom to dispose of property for such purposes has nothing to

do with religious influence, the impugned provision treating bequests for

both religious and charitable purposes is discriminatory and violative of

Article 14 of the Constitution. Further, it may be seen that there is no

rationale behind limiting the survival of the testator to a period of twelve

months in order to give effect to his wishes. There is also no rationale in the

classification between a testator, who survives beyond twelve months, and a

testator, who does not survive beyond the same period, in declaring the will

of the former as void and that of the latter as valid. Apart from the fact that

the period or duration of life of a testator has no relation with the purpose of

Will, there appears to be no reason behind fixing twelve months' period.

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Testators constitute a homogeneous class and they cannot be divided

arbitrarily on the basis of duration of their survival which is unrelated to the

purpose of executing a Will. In that view of the matter, the period of twelve

months has no nexus with the object of performing a philanthropic act.

Thus, the impugned provision is violative of Article 14 of the Constitution.

The provision relating to making of testamentary disposition by the

citizens of India vis-à-vis those professing the religion of Christian must be

judged on the touch-stone of Article 14 of the Constitution of India. It is

true that they form a class by themselves but ex facie I do not find any

justifiable reason to hold that the classification made is either based on

intelligible differentia or the same has any nexus with the object sought to be

achieved. In fact, the respondent have failed to show that there exists any

such object. Once it is held that the underlying purpose for enacting the said

provision was merely to thwart influence exercised by people professing

religion resulting in death-bed disposition, having regard to the fact that such

a contingency has adequately been taken care of in terms of Section 51 of

the Act, the purport and object of the Act must be held to be non-existent. It

may be true that the Indian Parliament is not bound to take note of and

amend its statutory enactments keeping in view the amendments made in

England. But there cannot be any doubt whatsoever that while interpreting a

restrictive statute, one may consider not only the past history of the

concerned legislation but the manner in which the same has been dealt with

by the legislature of its origin. A right of transfer of land indisputably is

incidental to the right of ownership and must be construed strictly. [See M/s

DLF Qutab Enclave Complex Educational Charitable Trust vs. State of

Haryana and Others â\200\223 2003 (2) SCALE 145]. The constitutionality of a

provision, it is trite, will have to be judged keeping in view the interpretive

changes of the statute effected by passage of time. [See Kapila Hingorani vs.

State of Bihar â\200\223 2003 (4) SCALE 712].

For the aforesaid reasons, I find that Section 118 of the Act being

unreasonable is arbitrary and discriminatory and, therefore, violative of

Article 14 of the Constitution.

Furthermore, India being a signatory to the Declaration on the Right

to Development adopted by the World Conference on Human Rights and

Article 18 of the United Nations Covenant on Civil and Political Rights,

1966, the impugned provision may be judged on the basis thereof. Article

1 of the aforementioned declaration reads thus :-

"The right to development is an inalienable human

right by virtue of which every human person and

all people are entitled to participate in, contribute

to, and enjoy economic, social, cultural and

political development, in which all human rights

and fundamental freedom can be fully realized.

The human right to development also implies the

full realization of the right of people to self

determination, which includes subject to the

relevant provisions of both International

Covenants on Human Rights, the exercise of their

inalienable right to full sovereignty over all their

natural wealth and resources."

Article 18 of the United Nations Covenant on Civil and Political

Rights 1966 provides as follows :

"Everyone shall have the right to freedom of

thought, conscience and religion. This right shall

include freedom to have or adopt a religion or

belief of his choice, and freedom, either

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individually or in community with others and in

public or private, to manifest his religion or belief

or belief in worship, observance, practice and

teaching.

Freedom to manifest ones own religion or beliefs

may be subject only to such limitations as are

prescribed by law and are necessary to protect

public safety, order, health, or morals or the

fundamental rights and freedom of others."

The impugned provision must, therefore, also be judged having regard

to the aforementioned treaties and covenants. [See Kapila Hingorani (supra)

at para 47].

It is trite that having regard to Article 13(1) of the Constitution, the

constitutionality of the impugned legislation is required to be considered on

the basis of laws existing on 26th January 1950, but while doing so the court

is not precluded from taking into consideration the subsequent events which

have taken place thereafter. It is further trite that the law although may be

constitutional when enacted but with passage of time the same may be held

to be unconstitutional in view of the changed situation.

Justice Cardoze said :

"The law has its epochs of ebb and flow, the flood

tides are on us. The old order may change yielding

place to new; but the transition is never an easy

process".

Albert Campus stated :

"The wheel turns, history changes". Stability and

change are the two sides of the same law-coin. In

their pure form they are antagonistic poles; without

stability the law becomes not a chart of conduct,

but a gare of chance: with only stability the law is

as the still waters in which there is only stagnation

and death."

In any view of the matter even if a provision was not unconstitutional

on the day on which it was enacted or the Constitution came into force, by

reason of facts emerging out thereafter, the same may be rendered

unconstitutional. The world has witnessed a sea-change. The right of

equality of women vis-à-vis their male counterpart is accepted worldwide. It

will be immoral to discriminate a woman on the ground of sex. It is

forbidden both in our domestic law as also international law. Even right of

women to derive interest in a property by way of inheritance, gift or

bequeath is statutorily accepted by reason of Hindu Succession Act, 1956

and other enactments. This Court, therefore, while considering

constitutionality of Section 118 of the Indian Succession Act, is entitled to

take those facts also into consideration.

I, however, am not oblivious of the fact that a restriction to make

testamentary disposition of the property to some extent is prevalent under

the Mohammedan law but therein the purpose is to protect the near relation

which cannot be said to be the sole purpose underlying Section 118 of the

Act.

I may notice that the a Division Bench of this Court in Clarence Pais

& Others vs. Union of India [JT 2001 (3) SC 82] while considering the

constitutionality of the provisions of Section 213 of the Indian Succession

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Act did not consider the applicability of various decisions cited before it

including Preman (supra) on the ground that the said provision applies to

Christians as also non-Christians stating:

"â\200¦However, in the light of the above conclusion,

it is unnecessary to refer to those decisions though

some of them may have bearing in analyzing 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."

So far as the second argument of learned counsel for the petitioner is

concerned, it is suffice to say that Article 15 of the Constitution of India may

not have any application in the instant case as the discrimination forbidden

thereby is only such discrimination as is based, inter alia, on the ground that

a person belongs to a particular religion. The said right conferred by clause 1

of Article 15 being only on a 'citizen', the same is an individual right by

way of a guarantee which may not be subjected to discrimination in the

matter of rights, privileges and immunities pertaining to him as a citizen. In

other words, the right conferred by Article 15 is personal. A statute, which

restricts a right of a class of citizens in the matter of testamentary disposition

who may belong to a particular religion, would, therefore, not attract the

wrath of clause 1 of Article 15 of the Constitution of India.

Coming to the last argument raised by the petitioners' counsel it may

be stated that in the instant case, this Court is not concerned with the right of

a person to freedom of conscience but is only concerned with a question as

to whether by reason of Section 118 of the Indian Succession Act the right

of Christians to profess, practise and propagate religion is violated. Article

25 is subject to the other provisions contained in Part III of the Constitution

of India. What was thought of by the Constitution makers while conferring

right to profess, practise and propagate religion was that freedom of

conscience be supplemented by freedom of unhampered expression of

spiritual conviction. Article 25 provides freedom of 'profession' meaning

thereby the right of the believer to state his creed in public and freedom of

practice meaning his right to give it expression in forms of private and

public worships [See Stainislaus Rev. Vs. State of M.P. (AIR 1975 MP

163)]. A disposition towards making gift for charitable or religious purpose

may be a pious act of a person but the same cannot be said to be an integral

part of any religion. It is not the case of the petitioners that the religion of

Christianity commands gift for charitable or religious purpose compulsory or

the same is regarded as such by the community following Christianity. The

petitioner has not been able to place any material to show that disposition of

property for religious and charitable purposes is an integral part of Christian

religious faith.

Disposition of property for religious and charitable purpose is

recommended in all the religions but the same cannot be said to be an

integral part of it. If a person professing Christian religion does not show

any inclination of disposition towards charitable or religious purposes, he

does not cease to be a Christian. Even certain practices adopted by the

persons professing a particular religion may not have anything to do with the

religion itself.

Article 25 merely protects the freedom to practise rituals and

ceremonies etc. which are only the integral parts of the religion. Article 25

of the Constitution of India will, therefore, not have any application in the

instant case.

For the self-same reasons, Article 26 may also not have any

application in the instant case.

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Before I part with the case, I would like to state that Article 44

provides that the State shall endeavour to secure for the citizens a uniform

civil code throughout the territory of India. The aforesaid provision is based

on the premise that there is no necessary connection between religious and

personal law in a civilized society. Article 25 of the Constitution confers

freedom of conscience and free profession, practice and propagation of

religion. The aforesaid two provisions viz. Articles 25 and 44 show that the

former guarantees religious freedom whereas the latter divests religion from

social relations and personal law. It is no matter of doubt that marriage,

succession and the like matters of a secular character cannot be brought

within the guarantee enshrined under Articles 25 and 26 of the Constitution.

Any legislation which brings succession and the like matters of secular

character within the ambit of Articles 25 and 26 is a suspect legislation.

Although it is doubtful whether the American doctrine of suspect legislation

is followed in this country. In Smt. Sarla Mudgal, President, Kalyani and

others vs. Union of India and others [1995 (3) SCC 635], it was held that

marriage, succession and like matters of secular character cannot be brought

within the guarantee enshrined under Articles 25 and 26 of the Constitution.

It is a matter of regret that Article 44 of the Constitution has not been given

effect to. Parliament is still to step in for framing a common civil code in

the country. A common civil code will help the cause of national integration

by removing the contradictions based on ideologies.

For the reasons aforementioned, this writ petition is

allowed and Section 118 of the Indian Succession Act is declared

unconstitutional being violative of Article 14 of the Constitution of

India. The parties shall, however, pay and bear their own costs.