2007 Supreme(Bom) 815

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
J.P. DEVADHAR AND B.P. DHARMADHIKARI, JJ.
Madhukar Rajanna Darbhe - PETITIONER.
Versus
Union of India - RESPONDENT
WRIT PETITION NO. 2356 OF 2003
with
WRIT PETITION NO. 2357 OF 2003
Decided on : JUNE 22, 2007.

Headnote:Succession Act, 1925 - Sections 57 and 213 - Suit for probate of Will - Civil Court decided suit in his favour - Appeals against that - Other sharer of ’Willed’ property filed writ petitions - Held that Court could entertain suit only if probate of Will was obtained. - After Hindu Wills Act, 1870, but before coming into force of Indian Succession Act, 1925, on 28.9.1916, the Hindu Disposition of Property Act, 1916 (XV of 1916) was enacted which applied to whole of India except Part B States and except the State of Madras. By Section 2 thereof it was declared that disposition of property by a Hindu either inter vivos or by Will could not be invalid only for the reason that person for whose benefit it was made was not in existence at the date of such disposition. It is therefore apparent that first enactment in relation to Hindu Wills was in 1870 and thereafter in 1916. These enactment applied in certain areas only for historical reasons. This treatment has been maintained while enacting Indian Succession Act, 1925. Provisions of Section 213(2)(i) read with Section 57(a) and (b) clearly show that the distinction noticed by framers of provisions of Hindu Wills Act, 1870, has been maintained. Thus this separate treatment insofar as procedural aspect is concerned, was necessary because of past history not only in 1925 but even thereafter. It is clear that on the even of independence of our country, different procedure was thus prevailing in Bengal and in the towns of Madras and Bombay while separate procedure was being followed in remaining part thereof. Hence Section 213(1) of Succession Act, 1925, was not then extended to remaining States. Thus probate has been a requirement only within the territories which at the said date i.e. 1.9.1870 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. Said area is very small as compared to rest of India. In large area of country probate is not the requirement since last more than 135 years. Uniform procedure prevailing in large area of country since long therefore need not to be discontinued because of only difference in procedural law when there is no violation of any constitutional right of an individual.

       Provisions of Section 3 of Succession Act, 1925, confer upon State Government power to exempt any race, sect or tribe within its area from operation of said Act by publishing notification in Official Gazette. Said power can be exercised retrospectively from 16.3.1865 i.e., the date or which 1865 Succession Act came into force or prospectively. In list of sections from which such exemptions can be granted, Section 213 has also been mentioned. This power can be exercised if State Government considers it impossible or inexpedient to apply such provisions or any of them to such race, sect or tribe. By like notification such order of exemptions can be withdrawn by State Government but not with retrospective effect. Thus intention of Legislature to preserve differential treatment, if necessary, is revealed even from this provision.

       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 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 of 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 above observations clearly show that the difference in treatment is because under British Empire probate was must to prove the right of legatee or executor and that was not the requirement in Part "B" or "C" States. Thus an exception prevailing in small area has been continued even after independence and in large part of country where such requirement did not exist, that requirement was not extended. No discrimination can result from preserving existing different classes receiving different treatment. No new legal obligation or new benefit is being conferred on any class by such an arrangement. We therefore find that in present facts no case is made out for extending said practice to remaining part of country where it is/was never applicable. In Shri Swamiji of Shri Admar Mutt, etc. etc. v. Commissioner, Hindu Religious and Charitable Endowments Department and others, (supra) relied upon by Advocate Sundaram, similar view has been taken by Constitutional Bench of Hon’ble Apex Court because of historical reasons. Hon’ble Apex Court observes : -

       "25. These decisions are authority for the validity of Section 76(1) of the Madras Act of 1951 in its application to the South Kanara District of the State of Mysore, now the State of Karnataka. This Court has said time and again that dissimilar treatment does not necessarily offend against the guarantee of equality contained in Article 14 of the Constitution. The rider is that there has to be a valid basis for classification and the classification must bear nexus with the object of the impugned provision. In matters arising out of reorganisation of States, continued application of laws of a State to territories, which were within that State but which have become a part of another State, is not discriminatory since the classification rests on geographical consideration founded on historical reasons."

       In present case also basis of selection for continuation of same treatment to the class of citizens rests on geographical consideration founded on historical reason s. Petitioners who have been exempted from requirement of probate for more than a century cannot seek to equate themselves with others who were/are not so exempted without pointing out breach of any constitutional provision or of any law conferring such legal right upon them. We, therefore, do not find any merit in these writ petitions.

       Writ petitions are accordingly dismissed. Rule discharged in both matters however, without any order as to costs.

       Civil Procedure Code, 1908 - Section 9 - Succession Act, 1925, Section 213(1) - Probate proceedings - Jurisdiction of Court - Question of title and other related issues - To be adjudicated in regular Civil Court only. - Question of title or other related issues to be adjudicated in regular Civil Court only.