Honble 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 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, Jain 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 Jain after the fir.09.1870 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 Jain 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 the petitioner she exec

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