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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 ofhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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 deceasedhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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 crosssection 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 boundhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
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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
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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@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJ
accordingly. No costs.@@
JJJJJJJJJJJJJJJJJJJJJJJ
S. RAJENDRA BABU
R.C. LAHOTI
February 22, 2001.
