Clarence
Pais & Ors Vs. Union of India [2001] Insc 102 (22 February 2001)
S. Rajendra
Babu & R.C. Lahoti Rajendra Babu, J. :
Writ Petition (civil) 674 of 1998
J U D
G M E N T
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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
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. ì¥Á5
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 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 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 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 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 accordingly. No costs
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