CLARENCE PAIS Vs. UNION OF INDIA

JUDGEMENT

(1.) 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.

(2.) 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 father's 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 Court 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 Clauses (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.

(3.) 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 facts 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.