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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  of

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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  deceased

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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

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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

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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 to  the  Lt.   Governor  of Bengal or to  areas  covered  by

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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.