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Report No. 209

Report No. 209

Proposal for Omission of Section 213 form The Indian Succession Act, 1925

1. Introduction

1.1 An article entitled "The Indian Succession (Amendment) Act 26 of 2002 - Why this discrimination against Hindus, Buddhists, Sikhs, Jainas and Parsis?", authored by Hon'ble Mr. Justice S.A. Kader, former Judge of the Madras High Court, was published at page 35 of the Journal Section of The Law Weekly, Madras in 2003 (Vol.2). The entire article is reproduced hereunder:

'The Indian Succession (Amendment) Act 2002 which received the assent of the President on the 27th May 2002 and published in the Gazette of India on 22.11.2002 has amended section 32 and section 213(2) of the parent Act which ran as follows:

"32. Devolution of such property.- The property of an intestate devolves upon the wife or husband, or upon those who are the kindred of the deceased, in the order and according to the rules hereinafter contained in the Chapter.

Explanation.- A widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate."

[This section does not apply to Hindus, Buddhists, Sikhs, Jainas and Parsis. It applies to only Indian Christians.]

Section 213:

"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 an authenticated copy of the will annexed.

(2) This Section shall not apply in the case of 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 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 (16 of 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."

2. The Statement of Objects and Reasons for the Amendment Act 26 of 2002 are as follows:-

"The Indian Succession Act 1925 was aimed at consolidating the Indian law relating to testamentary and intestate succession. Section 32 of this Act recognizes the Christian widow as one of the heirs to succeed the property of her deceased husband dying intestate. However, the Explanation to the said section provides that the widow would not be entitled to succeed such distributive share if there is a valid contract made before her marriage to that effect.

The Kerala Women's Commission and some Non-Governmental Organizations have pointed out that this provision of the Act excluding a Christian widow from her distributive share on the basis of the contract is discriminatory and they have suggested that she should be entitled to succeed her distributive share notwithstanding any contract to the contrary.

Section 213 of this Act requires that no person claiming a right as executor or legatee of a will can establish such right in any court of justice under the will unless he has been granted a probate or Letters of Administration with the will or a copy of the authenticated copy of the will annexed, by a court of competent jurisdiction.

No such probate or Letters of Administration is required for a Mohammedan to establish rights under the will nor there is any requirement in the case of other communities on an All India basis. The Law Commission of India, the Kerala Women's Commission, Members of Parliament belonging to Christian community and various other individuals and organizations have pointed out and represented to the Government that this provision is discriminatory and should not apply to Christians alone.

The matter has been examined by the Government and it has been decided to-

(a) delete the Explanation to Section 32; and

(b) make Section 213 inapplicable to Indian Christians by amending the Indian Succession Act, 1925.

The Bill seeks to achieve the above objects."

3. Section 2 of the Indian Succession (Amendment) Act 2002 deletes the Explanation to section 32 of the parent Act thereby relieving the Christian widow of the bar to succeed distributive share of her husband's estate even if there was a valid contract made to that effect before marriage. This is indeed a welcome amendment which has done away with the discrimination against Christian widows.

4. Section 3 of the Amendment Act 2002 has inserted the words "or Indian Christians" after the word "Muhammadans" in Section 213(2) of the Principal Act, which now reads thus:-

"This Section shall not apply in the case of Wills made by Muhammadans or Indian Christians and shall only apply -

ii. ......"

5. The result is the provisions of Section 213(1) which necessitates the grant of probate of the Will or Letters of Administration with the Will or with a copy of the authenticated copy of the Will annexed by a court of competent jurisdiction in order to establish the right as executor or legatee is not now applicable to the Wills made not only by Mohammedans but also by Indian Christians. But the aforesaid provision continues to 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, i.e., Wills and Codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the 1st 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 all such Wills and Codicils made outside those Territories and limits so far as relates to immovable property situate within those Territories or limits;

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, insofar as they relate to immovable property situate within those limits.

6. The exemption in respect of Wills made by Muslims under the parent Act was due to the Muslim Personal Law. The stipulation imposed in section 213(1) of the Act in respect of Wills made by any Indian Christian, Hindu, Buddhist, Sikh or Jaina was the legacy of Colonial Rule which has been extended to Parsis in 1962. The discrimination against the Wills executed by the Indian Christians has now been removed by the present Amendment on an All India basis.

In Kerala, this discrimination against Indian Christians has already been done away with by the Kerala Act 1 of 1997 with effect from 1514.3.1997. The discrimination in respect of Wills made by Hindus, Buddhists, Sikhs, Jainas or Parsis continues in a limited form, i.e., where the Will is made within the Territories of the ordinary original civil jurisdiction of the High Courts of Judicature at Calcutta, Madras and Bombay and where such Wills are made outside those Territories so far as they relate to immovable property situate within those Territories.

This discrimination is liable to be struck down under Article 15 of the Constitution which prohibits discrimination on grounds of religion, race, caste or place of birth. Will the Parliament look into this anomaly and repeal Section 213(1) and (2) altogether?'

1.2 On the above article, a note was published by the Law Weekly, Madras, 2003 (2) page 57 (JS), which is also reproduced hereunder:-

'The litigant public in our land, why for the matter of that, even our legal fraternity is greatly obliged to Mr. S.A. Kader, former Judge of our High Court for his piece, "The Indian Succession (Amendment) Act 26 of 2002 - Why this discrimination against Hindus, Buddhists, Sikhs, Jainas and Parsis?" which we have carried at pages 35 J.S. to 37 J.S. (in Part 4 of this Volume) in our Journal Section.

We had ourselves noticed that the 2002 November part of AIR carried the text of the Amending Act, Act 26 of 2002 at page 120 of journal part.

We were wondering what to make of this amendment made 77 years after the enactment of Indian Succession Act, 1925, assented to by the then Governor General in Council on 30th September 1925, itself a Consolidating Act whose forerunner was the Act of 1865.

Our inability to get down to business which we can only attribute to our lacking in facilities has been exposed by the young gentleman that Mr. Kader who is only 76 years young is by his commitment to legal research. That he quoted from Thomas Gray in his retirement speech from his seat on the Bench of our Court on 4.11.1988 may be only one incident.

Parliament had passed the Bill placed before it in the year 2001 itself and the Rashtrapathy gave his assent to the same on 27.5.2002, but the Law or Legislative department of the Union Cabinet could get the enactment printed in the Official Gazette of India only on 22.11.2002.

Mr. Kader has been able to locate the Statement of Objects and Reasons for the Amending Bill/Act. The selective approach made by Parliament to go to the help of only those who open their mouths and make a full throated noise is clearly brought out on a mere look at the Objects and Reasons for this measure.

Mr. Kader's conclusion that the provisions of the Indian Succession Act, 1925, as now remain, are clearly discriminatory and require to be struck down by the High Court (s) is the only obvious one.

On 22.2.2001, a Bench of the Supreme Court of India (Rajendra Babu and Lahoti, JJ.) delivered judgment in W.P.(C) No.137 of 1997 and connected cases. The same is reported in AIR 2001 SC 1151 and 2001-4-SCC-325.

The claim made by the petitioners in the said case, in the main, was that just as Muslims and Parsis have been exempted from the operation of section 213, Indian (?) Christians of this country should also enjoy the same exception and that it should be so declared.

Though the prayer came to be rejected by the Bench, it is found that the Indian Parliament lost no time in conceding the request and obliging a significant section of our country's citizens, namely, Christians.

What is sauce for the goose is (or at least, must be!) sauce for the gander too.

There does not appear to be any earthy reason why Parliament or the concerned Ministry of the Union Cabinet came to ignore the claim to equality of the major section of the people of India, the Hindus and enable them to be freed from the shackles.

If in regard only to properties in Chennai, Mumbai or Kolkata or in the event of the testator having executed the testament while within these cities, is a probate made requisite by this provision leaving aside the entire country does not this provision appear an anachronism? More so, when a distinct and not a small percentage of the population will be affected by this Rule.

Here we can also take note of Section 3 of the Act of 1925 and Section 332 of its predecessor Act 10 of 1865 has made provision for the State Government to exempt by notification, the operation of, among others, Sections 212, 213, and 215 to 369, the members of any race etc. to whom the State Government considers it impossible or inexpedient to apply such provision. One can even apply the maxim 'cessante ratione legis cessat ipsa lex.' (-Broom) Can't we!

We leave it to the Mega Association of lawyers in our State, the Madras High Court Advocates Association and its office bearers to take up the issue with the T.N. Government to make a notification under Section 3 of Act 39 of 1925 and relieve a large section of our people.'



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