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Report No. 209

2. Disuniformity

2.1 A perusal of the above article and the note published by the Law Weekly, Madras would clearly demonstrate and reveal the discrimination against Hindus, Buddhists, Sikhs, Jainas and Parsis in the matter of obtaining probate of a will or letters of administration with respect to the wills executed by Hindus, Buddhists, Sikhs, Jainas and Parsis 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 properties situate within those limits, that the learned author pleaded for the removal.

2.2 Hardship is experienced by litigants in obtaining probate or letters of administration paying high duty. While obtaining of probate or letters of administration is not insisted upon in respect of wills executed by Muslims and Christians anywhere in India in respect of properties situated anywhere in India and wills executed by Hindus, Buddhists, Sikhs, Jainas and Parsis outside the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay in respect of properties situated outside those limits, there is no rationale in insisting upon obtaining of probate or letters of administration in respect of wills executed by Hindus, Buddhists, Sikhs, Jainas and Parsis 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.

2.3 Article 15 of the Constitution reads as follows:

"Article. 15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30."

2.4 The above Article prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

2.5 The constitutional validity of section 118 of the Indian Succession Act was challenged before the High Court of Kerala in Preman v. Union of India, AIR 1999 Kerala 93. It was argued that the said provision was anomalous and anachronistic being violative of Articles 14, 15, 25 and 26 of the Constitution of India and, therefore, the said section was liable to be struck down as unconstitutional. The case was decided by the Division Bench headed by Hon'ble Dr. Justice AR. Lakshmanan (as he then was). The High Court held:

"In the instant case, Section 118 of the Act regarding religious bequests of all testators, viz. of Hindus, Muhammadans, Parsis, Jaina, etc., are not subjected to this procedure and the bequests by Christians alone is singled out. Therefore, we hold that Section 118 of the Indian Succession Act regarding religious and charitable bequests is discriminatory and violative of Articles 14 and 15 of the Constitution of India and it is necessary that all testators who are similarly situated should be subjected to the same procedure.

As the law stands today, a Christian cannot make a bequest for religious or charitable purposes without satisfying the conditions and procedures prescribed by Section 118 of the Act. Such a burden, procedural burden and substantive law burden is not falling upon Hindu, Muhammadan, Jaina or Parsi testators.

we declare that Secton 118 of the Indian Succession Act: (a) discriminates against a Christian vis-à-vis non-Christian; (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 nephew, niece or nearest relative vis-à-vis a Christian who has no relative at all; and (e) discriminates against a Christian who dies within 12 months of execution of the will, of which he has no control.

We, therefore, declare that Section 118 of the Indian Succession Act is anomalous and anachronistic being violative of Articles 14, 15, 25 and 26 of the Constitution of India. Section 118 of the Indian Succession Act is, therefore, struck down as unconstitutional."

2.6 This matter was taken to the Supreme Court through a writ petition and heard by its Bench comprising Hon'ble Chief Justice of India V.N. Khare, Hon'ble Justice S.B. Sinha and Hon'ble Dr. Justice AR. Lakshmanan in John Vallamattom v. Union of India, AIR 2003 SC 2902. The Supreme Court allowed the writ petition for the elaborate reasons recorded in the judgments and also declared Section 118 of the Indian Succession Act as unconstitutional being violative of Articles 14, 15, 25 and 26 of the Constitution of India.

2.7 Hon'ble Dr. Justice AR. Lakshmanan delivered a separate judgment agreeing with the other two Judges. In his concurring judgment, he has elaborately dealt with discriminatory treatment meted out to the members of the Christian community under the Indian Succession Act, 1925 by which they are practically prevented from bequeathing property for religious and charitable purposes. In conclusion, he observed:

"The Indian Succession Act though is claimed to be a universal law of testamentary disposition, but in effect, crucial sections apply only to Christians. There is no acceptable answer from the other side as to why S. 118 of the Act is made applicable to Christians alone and not to others. ...

The Indian Succession Act came into effect on 30th September, 1925. As per S. 4, Part II of the Act shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina. Section 20 of Part III of the Act is not applicable to any marriage contracted before the first day of January, 1866; and is not applicable and is deemed never to have applied to any marriage, one or both of the parties to which professed at the time of marriage the Hindu, Muhammadan, Buddhist, Sikh or Jain religion.

As per S. 23 of Part IV of the Act, that part shall not apply to any Will made or intestacy occurring before the first day of January, 1866 or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi. Likewise, as per S. 29 of Part V of the Act, that shall not apply to any intestacy occurring before the first day of January, 1866 or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.

By Act 51 of 1991, Parsis were also excluded from the application of S. 118 of the Act. Thus, it is seen that the procedure prescribed has been made applicable to Christians alone. There is also no acceptable answer from the respondent as to why it regulates only religious and charitable bequests and that too, bequests of Christians alone. The whole case, in my view, is based upon undue, harsh and special burden on Christian testators alone.

A substantive restriction is imposed based on uncertain events over which the testator has no control. I, therefore, have no hesitation to hold that S. 118 of the Act regarding religious and charitable bequests of all testators who are similar should be subjected to the same procedure. As the law stands today, a Christian cannot make a bequest for religious or charitable purposes without satisfying the conditions and procedures prescribed by S. 118 of the Act. Such a burden, procedural burden and substantive law burden is not falling upon Hindu, Muhammadan, Jain or Parsi testators.

The very same question was raised before the Kerala High Court. It is pertinent to notice that the judgment of the Kerala High Court was not appealed against by the respondent herein, namely, the Union of India. Even after the judgment of the Kerala High Court dated 16.10.1998, the Parliament did not remove the discrimination.

Under such circumstances, this Court, in my opinion, in exercise of its jurisdiction and to remedy violation of fundamental rights, are bound to declare the impugned provision as invalid and being violative of Arts. 14, 15, 25 and 26 of the Constitution. For the foregoing reasons, I am respectfully in agreement with My Lord Hon'ble the Chief Justice of India that S. 118 of the Act is unconstitutional and is liable to be struck down as unconstitutional.

In the result, the writ petition is allowed."

2.8 Sub-section (2) of section 213 of the Indian Succession Act was amended by the Indian Succession (Amendment) Act, 2002 introducing the words "or Indian Christians" after the word "Muhammadans". The result is that the provision of sub-section (1) of section 213 which necessitates grant of probate of the will or letters of administration with the will or with a copy of an authenticated copy of the will annexed, by a Court of competent jurisdiction in order to establish the right as executor or legatee is now not applicable to the wills made not only by Muhammadans but also by Indian Christians. But this provision continues to apply-

(1) 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, that is, wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the 1st day of September, 1870, within the territories which on 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 Madras and Bombay and all such wills and codicils made outside those territories and limits so far as they relate to immovable property situate within those territories or limits; and

(2) in the case of wills made by Parsis 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 of Calcutta, Madras and Bombay and where such wills are made outside those limits, insofar as they relate to immovable property situate within those limits.



Proposal for omission of Section 213 from the Indian Succession Act, 1925 Back




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