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CASE NO.: Writ Petition (civil)   of 242  

PETITIONER: John Vallamattom & Anr.                                          

RESPONDENT: Vs. Union of India                                           

DATE OF JUDGMENT: 21/07/2003

BENCH: AR. Lakshmanan  

JUDGMENT:

JUDGMENT

Dr. AR. LAKSHMANAN, J.

       I have the benefit of going through the detailed and elaborate  judgment prepared by My Lord Hon’ble the Chief Justice of India.  I am  respectfully in agreement with the same.  However, I would like to add few  more paragraphs as to how the Christians are aggrieved by the discriminatory  treatment meted out to members of Christian community under the Indian  Succession Act, 1925 (hereinafter referred to as "the Act")  by which they are  practically prevented from bequeathing property for religious and charitable  purposes.  The impugned provision has already been extracted in the  judgment prepared by Hon’ble the Chief Justice of India.  As per the  impugned provision, a person having a nephew or niece or nearer relative  cannot bequeath any property for religious or charitable use unless (1) the  Will is executed not less than 12 months before the death of the testator, (2) it  is deposited within six months from the date of execution in some place  provided by law and (3) it remains in deposit till the death of the testator.  The  harsh and rigorous procedure envisaged under Section 118 of the Act in   relation to testamentary disposition of property for religious and charitable use  does not apply to members of Hindu, Mohammadan, Buddhist, Sikh or  Jaina  Community by virtue of  Section 58 of the Act.  At the same time, since no  exemption is granted by the State Government to the members of the  Christian community under Section 3 of the  Act, Christians cannot bequest  property for religious or charitable use unless fresh Will is executed on the  expiry of every 12 months, if the testator does not suffer from the  misfortune  of  death within the statutory period of 12 months.   

There is no restriction on Muhammadan on bequeathing property for  religious or charitable purposes.     A Muhammadan can validly bequeath one  third of his net assets, when there are heirs.  The only restriction as regards  the legator is that he should be of sound mind and he should not be a minor.   As regards the legatee, it is stated that if the legatee causes the death of the  legator, the Will becomes void and ineffective.  Under Muhammadan Law,  a  Will can be lawfully made in favour of an individual, an institution, a non- Muslim, a minor and an insane.  As regards the subject- matter, any property  can form the subject of a Will, and both corpus and usufructs can be  bequeathed.   

In the case of Hindus, the founding of a temple or a charitable  institution is considered as an act of religious duty and has all the aspects of  Dharma.

In my opinion, there is no justification in retaining the impugned  provision in the statute book, which is arbitrary and violative of Article 14 of  the Constitution, since the mortmain statutes were repealed by the Charities  Act, 1960 and by that the very basis and foundation of the impugned

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provision has become non-existent.  The impugned provision is also violative  of  Articles 25 and 26 of the Constitution inasmuch as it is an essential and  integral part of Christian religious faith to give property for religious and  charitable purposes.  The teachings from the Holy Book of Bible also  encourage Christians to practice charities to attain spiritual salvation.   Whenever fundamental right to freedom of conscience and to profess,  practice and to propagate religion is invoked, the petitioners contend that the  act complained of as offending the fundamental right must be examined to  dishonour whether such act is to protect order, morality and health, whether it  is to give effect to the other provisions of Part III of the Constitution or whether  it is authorised by a law made to regulate or restrict any economic, financial,  political or secular activity which may be associated with religious practice or  to provide for social welfare and reform.  It is the duty and function of the  Court so to do.   

As per Section 118 of the Act,  bequest of property for religious and  charitable use fails, if, for any reason, the testator does not suffer from the  misfortune of death within 12 months of execution of the Will or if it is not  deposited in the place provided by law within 6 months, and that since as per  the impugned provision a testator who lives beyond the statutory period of 12  months is not able to effectuate his wishes in relation to his property, the  impugned provision defeats object of the Will and is harsh, unjust and  arbitrary.  In order to survive the challenge under Article 14 of the  Constitution, it must be established that the classification arising out of the  impugned provision is reasonable and that it has a nexus with the object  sought to be achieved, and since in the instant case, the classification  between bequests for religious and charitable use and bequests for other  purposes is unreasonable and since it has no nexus with the object sought to  be achieved, the impugned provision is hit by Article 14 of the Constitution.   The impugned provision is also attacked as discriminatory and violative of  Articles 14 and 15 of the Constitution inasmuch as the restriction on bequest  for religious and charitable purpose is confined to Christians alone and not to  members of other communities. In my opinion, the classification  between  testators who belong to Christian community and those belonging to other  religions is extremely unreasonable.    All the testators who bequeath property  for religious and charitable purpose belong to the same category irrespective  of their religious identity and so the impugned provision, which discriminates  between the members of one community as against another, amounts to  violation of Article 14  of the Constitution.  There is no rationale behind limiting  the survival of testator to a period of 12 months in order to give effect to his  wishes.  There is no rationale in the classification between a testator who  survives beyond 12 months and a testator who does not survive beyond the  same period in declaring the will of the former as void and that of the latter as  valid.  There is no logic behind fixing 12 months’  period, and the testators  who constitute a homogenous class cannot be decided arbitrarily on the basis  of the duration of their survival which is unrelated to the purpose of executing  a will.  Since fixation of such a period has no nexus with the object of  performing a philanthropic act, the impugned provision is attacked as liable to  be declared void as violative of Article 14 of the Constitution.   

Article 14 of the Constitution states that the State shall not deny to any  person equality before the law or the equal protection of the laws within the  territory of India.  The first part of Article 14 of the Constitution of India is a  declaration of equality of civil rights for all purposes within the territory of India  and basic principles of republicanism and there will be no discrimination.  The  guarantee of equal protection embraces the entire realm of ’State action’.  It  would extend not only when an individual is discriminated against in the  matter of exercise of his right or in the matter of imposing liabilities upon him,  but also in the matter of granting privileges etc. In all these cases, the  principle is the same, namely, that there should be no discrimination between  one person and another if as regards the subject-matter of the legislation their  position is the same.  In my view, all persons of similar circumstances shall be  treated alike both in privileges and liabilities imposed.  The classification  should not be arbitrary; it should be reasonable and it must be based on  qualities and characteristics and not any other who are left out, and those

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qualities or characteristics must have reasonable relations to the object of the  legislation.   

In the case of D.S. Nakara vs. Union of India (1983) 1 SCC 305, this  Court has observed thus:

"Thus the fundamental principle is that Article 14  forbids class legislation but permits reasonable  classification for the purpose of legislation which  classification must satisfy the twin tests of classification  being founded on an intelligible differentia which  distinguishes persons or things that the grouped together  from those that are left out of the group and that differentia  must have a rational nexus to the object sought to be  achieved by the statute in question."

It has been also observed in the above judgment that in the very  nature of things, the society being composed of unequals a welfare State will  have to strive by both executive and legislative action to help the less  fortunate in the society to ameliorate their condition so that the social and  economic inequality in the society may be bridged and in the absence of  doctrine of classification such legislation is likely to flounder on the bed rock  of equality enshrined in Article 14 of the Constitution.

Article 25 of the Constitution deals with freedom of conscience and the  right freely to profess,  practice and propagate religion.  The contribution for  religious and charitable purposes is a philanthropic act intended to serve  humanity at large and is also recognised as a religious obligation.  Therefore,  bequesting property for religious and charitable purposes cannot be  controlled or restricted by the Legislature as it would offend the fundamental  rights of the testator under Articles 25 and 26 of the Constitution and  therefore, the impugned provision is arbitrary and unconstitutional.  It is also  violative of Article 26 of the Constitution inasmuch as it is an essential and  integral part of Christian religious faith to give property for religious and  charitable purposes.  Every Christian shall have the right to establish and  maintain institutions for religious and charitable purposes, manage its own  affairs, own and acquire movable and immovable properties and to administer  such property in accordance with law.   

In my opinion, whether in an enactment religious bequests by a  Christian  is discriminatory and violative of Articles 14 and 15 of the  Constitution must be determined as per the rule of procedure laid down by  Section 118 of the Act, which comes with the purview of Articles 14 and 15 of  the Constitution, and it is, therefore, necessary that all testators who are  similarly situated should be subjected to the same rule of procedure.  There  cannot be any unusual burden on Christian testators alone when all other  testators making similar bequests for similar charities and similar religious  purposes are not subjected to such procedure.  Therefore, in my opinion,  Section 118 of the Act  is anamalous, discriminatory and violative of Articles  14, 15, 25 and 26 of the Constitution and should be struck down.   

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  Section 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 Section 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 Jaina religion.  As per  Section 23 of Part IV of the Act, that part shall not apply to any Will made or

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intestacy occurring before the first day of January, 1866 or to intestate or  testamentary succession to the property of any Hindu, Muhammadan,  Buddhist, Sikh, Jaina or Parsi.  Likewise, as per Section 29 of Part V of the  Act, that part 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 Section 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 Section 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 Section 118 of the Act.  Such a burden,  procedural burden and substantive law burden is not falling upon Hindu,  Muhammadan, Jaina or Parsi testators.   

The very same question was raised before the Kerala High Court.  The  Division Bench of Kerala High Court in the case of Preman vs. Union of  India reported in 1998(2) KLT 1004  to which  I was a party,  declared thus:

a)      discriminates against a Christian vis-Ã -vis non-Christians; b)      discriminates against testamentary disposition by a Christian vis-Ã - vis non-testamentary disposition; c)      discriminates against religious and charitable use of property vis-Ã - vis all other uses including not so desirable purposes; d)      discriminates against the Christian who has a nephew, niece or  nearest relative vis-a-vis a Christian who has no relative at all; and e)      discriminates a Christian who dies within 12 months of execution of  the Will, of which he has no control.

It is pertinent to notice that the judgment of the Kerala High Court  was not appealed against by the respondent therein, 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  Articles 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 Section 118 of the Act is unconstitutional  and is liable to be struck down as unconstitutional.            In the result, the writ petition is allowed.