IMPORTANT POINT
Provisions of Section 213 of the Indian Succession Act is not discriminatory against Indian Christians.

Headnote:Indian Succession Act, 1925-Section 213-Constitutional validity-Contention that application of section to Indian Christians while excluding others is discriminatory-Plea incorrect and untenable-Provisions applicable to Parsis and to Hindus who reside within territories which on 1.9.1870 were subject to Lt. Governor of Bengal or to areas covered by original jurisdiction of High Courts of Bombay and Madras and to all Wills made outside those territories and limits so far as they relate to immovable property within those territories and limits-Section not discriminatory-Differences not based on religion but for historical reasons.
       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. (Para 6)
       Section 213(1) 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 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. (Para 7)

Judgement Key Points

The legal document discusses the constitutional validity of Section 213 of the Indian Succession Act, 1925, particularly in relation to its application to Indian Christians and other communities. The key points are as follows:

Applicability of Section 213: The section mandates that rights as an executor or legatee under a will can only be established in a court of law if probate or letters of administration are obtained. Its scope is procedural, primarily affecting the formality of establishing such rights in judicial proceedings (!) (!) .
Non-Discriminatory Nature: The provision is not discriminatory against Indian Christians. It applies to certain communities like Parsis and Hindus based on historical reasons related to the territorial jurisdiction and legal procedures during British rule, rather than on religious grounds (!) (!) .
Historical and Geographical Reasons: The differences in legal requirements across communities and regions stem from historical circumstances and territorial jurisdictional differences, not from any discrimination based on religion. These variations have persisted and are justified as part of the federal structure of India (!) (!) .
Scope of Exceptions: The section does not prohibit the will from being examined for other purposes or in other proceedings. It only restricts establishing rights as an executor or legatee in a court without probate or similar legal authority (!) (!) .
Application to Communities: The section has been amended to include Parsis and applies to Hindus residing within certain territories, with the application extending to wills made outside those territories if related to immovable property within them. This demonstrates that the law's application is based on territorial and procedural considerations, not religion (!) (!) .
Procedural Nature and Justification: The requirement of probate is procedural, intended to provide conclusive proof of a will's genuineness. Such procedural laws are within the legislative competence of the state and do not violate constitutional principles of equality or non-discrimination (!) (!) .
Legal and Policy Considerations: The law aims to streamline testamentary procedures and prevent disputes, and the differentiation based on geography and community history is justified. The law's design reflects the social and legal context of India’s federal setup, which allows for such variations (!) (!) .
Conclusion: The petitions challenging the validity of Section 213 are dismissed, affirming that the law is constitutionally valid and not discriminatory, given its procedural nature and historical context (!) .

In summary, the provisions of Section 213 of the Indian Succession Act are constitutionally valid, applicable based on territorial and procedural considerations, and do not discriminate on the basis of religion.

JUDGMENT

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.

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 light 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 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.

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

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2001 Supreme(SC) 343

IMPORTANT POINTProvisions of Section 213 of the Indian Succession Act is not discriminatory against Indian Christians.

Cases Referred (7)

IMPORTANT POINT
Provisions of Section 213 of the Indian Succession Act is not discriminatory against Indian Christians.