BOMBAY HIGH COURT
MADHUKAR RAJANNA DARBHE VS. UOI
DATED : 22.06.2007
Summarised Judgement (Scroll for Complete Judgement)
Introduction :
Both Writ Petitions are filed by original defendants in two different civil suits instituted by present Respondent No. 3 for possession of property on the ground that his father Rajanna has left 'Will' dated 28/2/1980 bequeathing the same in his favour. Both Petitioners are real brothers of Respondent No. 3. Petitioners filed applications at exhibit 44 in Regular Civil Suit No. 814/1994 (Laxmanrao v. Venkat) and at exhibit 56 in the Regular Civil Suit No. 3340/2001 (Laxmanrao v. Madhukar) raising preliminary objection that unless and until Will was probated, Civil Suits were not maintainable.
By common order dated 28/3/2003, 8th Joint Civil Judge, Junior Division, Nagpur, has rejected that contention and applications filed by Petitioners in these Suits. This common order has been challenged in these 2 Writ Petitions on the ground that provisions of Section 57(a) and (b) of Indian Succession Act, 1925, violate Article 14 and 19 of the Constitution of India with prayer to hold that Probate is required for every Will as per Section 213(1) thereof.
Facts of the Case :
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 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.
Observation of Court :
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. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors. (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: -
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.
Judgement :
In present case also basis of selection for continuation of same treatment to the class of citizens rests on geographical consideration founded on historical reasons. 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.
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Complete
Judgement
BOMBAY HIGH COURT
MADHUKAR RAJANNA DARBHE VS. UOI
DATED : 22.06.2007
Equivalent citations: 2008 (2) BomCR 418
Author: B Dharmadhikari
Bench: J Devadhar, B Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
1. Both Writ Petitions are filed by original defendants in two different civil suits instituted by present Respondent No. 3 for possession of property on the ground that his father Rajanna has left "Will" dated 28/2/1980 bequeathing the same in his favour. Both Petitioners are real brothers of Respondent No. 3. Petitioners filed applications at exhibit 44 in Regular Civil Suit No. 814/1994 (Laxmanrao v. Venkat) and at exhibit 56 in the Regular Civil Suit No. 3340/2001 (Laxmanrao v. Madhukar) raising preliminary objection that unless and until Will was probated, Civil Suits were not maintainable. By common order dated 28/3/2003, 8th Joint Civil Judge, Junior Division, Nagpur, has rejected that contention and applications filed by Petitioners in these Suits.
This common order has been challenged in these 2 Writ Petitions on the ground that provisions of Section 57(a) and (b) of Indian Succession Act, 1925, violate Article 14 and 19 of the Constitution of India with prayer to hold that Probate is required for every Will as per Section 213(1) thereof.
2. It is admitted position that as this Court did not grant any interim relief to Petitioners, both Civil Suits have been decreed in favour of Respondent No. 3 and Regular Civil Appeals filed by respective Petitioners are pending. It is further stated by Respondent No. 3 that he has received vacant possession from Petitioner Madhukar in W.P. No. 2356/2003 and hence said Writ Petition has become infructuous. Learned Counsel for said Petitioner has however stated that he has no instructions from said Petitioner and has no objection if said writ petition is disposed of as infructuous after recording said statement of Respondent No. 3.
3. We have heard Advocate B.N. Mohta for the Petitioners, Advocate Sundaram for Union Of India & for Attorney General of India, and Advocate N.A. Vyawahare for Respondent No. 3. Advocate B.N. Mohta for the Petitioners had stated that notice was not issued to Attorney General of India. Accordingly, we issued notice at the time of hearing to Attorney General of India and upon request Advocate Sundaram appearing for Union Of India has waived the service and appeared for Attorney General of India also.
4. Learned Counsel for the Petitioners Shri Mohta has stated that the facts are not at all in dispute and hence only legal question about constitutional validity or otherwise of provisions of Section 57(a) and (b) needs to be answered. He has invited attention to provisions of Section 213(1) of Succession Act to state that said provision is applicable to everybody and exclusion therefrom of certain wills executed by persons other than as mentioned in Section 57(a) and (b) is uncalled for. He further argued that separate treatment by provisions of Succession Act to wills executed not in or in relation to properties situated within Metropolitan cities of Bombay, Madras and Bengal is now not necessary. He adds that due to passage of time historical or other reasons necessitating separate treatment to wills executed elsewhere have now become irrelevant, redundant and Succession Act enacted to consolidate the law needs to be given full effect.
He also invites attention to the definition of "India" in Section 2(cc) as also to the fact that Succession Act is now applicable throughout India except State of Jammu & Kashmir. He therefore urges that uniformity in such matters is need of time & hence Suits filed by Respondent No. 3 without obtaining probate were not maintainable and impugned common order is therefore liable to be set aside and preliminary objections raised by the Petitioners need to be upheld. He has placed reliance upon judgments of Hon'ble Apex Court reported at Clarence Pais v. Union of India and John Vallamattom v. Union of India.
Lastly he stated that not only for the sake of uniformity but as judgment of Probate Court is judgment in rem while that of civil court is judgment in personam only, probate proceedings must be encouraged and preferred. Advocate N.A. Vyawahare for Respondent No. 3 as also Advocate Sundaram for Union Of India & for Attorney General of India have supported the impugned order. They state that judgments on which reliance has been placed itself justify separate treatment accorded by Succession Act, 1925, to the Will of father of Respondent No. 3 and hence, Writ Petitions are without any merit.
Lastly he stated that not only for the sake of uniformity but as judgment of Probate Court is judgment in rem while that of civil court is judgment in personam only, probate proceedings must be encouraged and preferred. Advocate N.A. Vyawahare for Respondent No. 3 as also Advocate Sundaram for Union Of India & for Attorney General of India have supported the impugned order. They state that judgments on which reliance has been placed itself justify separate treatment accorded by Succession Act, 1925, to the Will of father of Respondent No. 3 and hence, Writ Petitions are without any merit.
Learned Counsel for Respondent No. 3 has invited our attention to reported judgments of this Court to show that probate court has got limited jurisdiction and thereafter the person seeking relief has to approach Civil Court for declaration of title and for possession.Support is sought to be drawn from Everest Agencies, Bombay v. Ishrat Rafique Sharif and Mahadeo Shinde v. Maroti Shinde 2003(5) LJS 100 : 2003(2) Mah. L.J. 446. He also points out that probate is not a condition precedent to the institution of suit by relying upon the judgment of this Court in the case of Ramniklal v. Bhupendra Impex Pvt. Ltd., reported at . Section 3 of Succession Act, 1925, conferring power on State to grant exemption from Section 213 is also pointed out. Advocate Sundaram has stated that Succession Act has been amended on 28 occasions but legislature never thought it necessary to repeal Section 57(a) & (b).
As there is no challenge to Section 213(2) which according to him is independent provision, Petitions are not tenable. He contends that because of historical reasons two different procedures are prevailing since long and as no legal right is being affected, the demand in Writ Petitions is misconceived. He argues that different laws may prevail in same State and points out Shri Swamiji of Shri Admar Mutt, etc. etc. v. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors., and Bhandarikeri Mutt and Ors. etc. v. State of Mysore and Anr. He further argued that in Section 213 only declaration is granted and by placing reliance on --Dharam Das etc. etc. v. The State of Punjab and Ors., he urges that as such declaration is not very relevant in two Suits and controversy involved here. The prayers in Petition can not be granted. Both learned Counsel for Respondents therefore pray for dismissal of Writ Petitions.
As there is no challenge to Section 213(2) which according to him is independent provision, Petitions are not tenable. He contends that because of historical reasons two different procedures are prevailing since long and as no legal right is being affected, the demand in Writ Petitions is misconceived. He argues that different laws may prevail in same State and points out Shri Swamiji of Shri Admar Mutt, etc. etc. v. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors., and Bhandarikeri Mutt and Ors. etc. v. State of Mysore and Anr. He further argued that in Section 213 only declaration is granted and by placing reliance on --Dharam Das etc. etc. v. The State of Punjab and Ors., he urges that as such declaration is not very relevant in two Suits and controversy involved here. The prayers in Petition can not be granted. Both learned Counsel for Respondents therefore pray for dismissal of Writ Petitions.
5. Sections 57 and 213 of the Succession Act are as follows:
57. Application of certain provisions of Part to a class of wills made by Hindus, etc. The provisions of this Part which are set out in Schedule III shall, subject to the restricts and modifications specified therein, apply
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date 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; and
(b) 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
(c) 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 codicil.
Section 213. Right as executor or legatee when established.
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of a authenticated copy of the will annexed.
(2) This section shall not apply in the case of the wills made by Muhammadans, and shall only apply
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in Clauses (a) and (b) of Section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
6. In -John Vallamattom v. Union of India, relied upon by the Petitioners facts are clearly distinguishable and bare perusal of Section 118 of Succession Act, 1925, is sufficient to show that it affected the substantive right of the Christian citizen to bequeath his property for religious or charitable purpose. Section 118 placed restriction on a Christian having a nephew or niece or any nearer relative as regards his power to bequeath his property for religious or charitable use. The term 'any nearer relative' included father, mother, son, daughter, grandfather, grandmother, grandson, grand-daughter, brother or sister but not wife. The word 'relative' meant legitimate relative and had no application to any relationship by marriage. So a Christian testator having a nephew or niece or nearer relatives was required to execute the Will at least 12 months before his death, and deposit it within six months, otherwise the bequest for religious or charitable use made therein would be void.
This restriction did not apply to a person with no near relative but having wife. Hon'ble Apex Court found it difficult to appreciate as to why & how a testator entitled to bequeath his property by way of charitable and religious disposition even if he had a wife would be precluded from doing so because he had a nephew or a niece. It is in this background that the Hon'ble Apex Court has observed that it was further trite that the law although may be constitutional when enacted but with passage of time the same may become unconstitutional in view of the changed situation. Section 118 was therefore held violative of Article 14 by Court as also violative of Arts. 25, 28 by one Hon'ble Judge. Hon'ble Apex Court noticed that there was no rationale behind limiting the survival of the testator to a period of twelve months in order to give effect to his wishes.
There was also no rationale in the classification between a testator, who survived beyond twelve months, and a testator, who did not survive beyond the same period, in declaring the will of the former as void and that of the later as valid. Hon'ble Apex Court has observed that apart from the fact that the period or duration of life of a testator had no relation with the purpose of will, there appeared no reason behind fixing twelve months' period. Hon'ble Apex Court stated that testators constitute a homogeneous class and they cannot be divided arbitrarily on the basis of duration of their survival which is unrelated to the purpose of executing a will. In that view of the matter, the period of twelve months was found to have no nexus with the object of performing a philanthropic act. Therefore this ruling of Hon'ble Apex Court or the logic behind it is not at all relevant for deciding present controversy.
This restriction did not apply to a person with no near relative but having wife. Hon'ble Apex Court found it difficult to appreciate as to why & how a testator entitled to bequeath his property by way of charitable and religious disposition even if he had a wife would be precluded from doing so because he had a nephew or a niece. It is in this background that the Hon'ble Apex Court has observed that it was further trite that the law although may be constitutional when enacted but with passage of time the same may become unconstitutional in view of the changed situation. Section 118 was therefore held violative of Article 14 by Court as also violative of Arts. 25, 28 by one Hon'ble Judge. Hon'ble Apex Court noticed that there was no rationale behind limiting the survival of the testator to a period of twelve months in order to give effect to his wishes.
There was also no rationale in the classification between a testator, who survived beyond twelve months, and a testator, who did not survive beyond the same period, in declaring the will of the former as void and that of the later as valid. Hon'ble Apex Court has observed that apart from the fact that the period or duration of life of a testator had no relation with the purpose of will, there appeared no reason behind fixing twelve months' period. Hon'ble Apex Court stated that testators constitute a homogeneous class and they cannot be divided arbitrarily on the basis of duration of their survival which is unrelated to the purpose of executing a will. In that view of the matter, the period of twelve months was found to have no nexus with the object of performing a philanthropic act. Therefore this ruling of Hon'ble Apex Court or the logic behind it is not at all relevant for deciding present controversy.
7. In -Everest Agencies, Bombay v. Ishrat Rafique Sharif, learned Single Judge of this Court has observed that the Court in its testamentary jurisdiction does not decide title to the property. While granting probate what the Court considers is that the Will produced before it is genuine last Will of the testator. Whatever property is claimed by the executor to be the property left by the deceased is normally included in the schedule and by inclusion of the property in the schedule the Court does not decide title of that property. Therefore, any person having a rival claim to the title of the property, is always at liberty to approach the appropriate Court for decision of her/his title. By stating that judgment in the probate proceeding is judgment in rem, it does not mean that the Court exercising the testamentary jurisdiction can decide as to the title of the property and if at all it so decided, that also would be the judgment in rem.
In Mahadeo Shinde v. Maroti Shinde 2003(5) LJS 100 : 2003(2) Mah. L.J. 446 , learned Single judge of this Court has noted that Probate court is concerned only with the question as to whether the document which contained the bequest was the last Will and testament of the deceased duly executed and attested in accordance with law by the testator having a sound disposing state of mind. Question whether a particular bequest is good or bad is not within the purview of the probate court and it is no part of the duty of the testamentary Judge to consider the question of title to property. Rupali Mehta v. Tina Mehta has also pointed out lack of jurisdiction in Probate Court to examine issue of title of testator to property bequeathed.
These aspects are not even disputed by learned Counsel appearing for Petitioners. Similarly the fact that as per existing law applicable in this part, probate is not necessary or requirement of probate is not condition precedent to institution of suit are not in dispute and hence we do not find it necessary to refer to judgments relied on in this respect by learned Counsel for Respondent No. 3.
In Mahadeo Shinde v. Maroti Shinde 2003(5) LJS 100 : 2003(2) Mah. L.J. 446 , learned Single judge of this Court has noted that Probate court is concerned only with the question as to whether the document which contained the bequest was the last Will and testament of the deceased duly executed and attested in accordance with law by the testator having a sound disposing state of mind. Question whether a particular bequest is good or bad is not within the purview of the probate court and it is no part of the duty of the testamentary Judge to consider the question of title to property. Rupali Mehta v. Tina Mehta has also pointed out lack of jurisdiction in Probate Court to examine issue of title of testator to property bequeathed.
These aspects are not even disputed by learned Counsel appearing for Petitioners. Similarly the fact that as per existing law applicable in this part, probate is not necessary or requirement of probate is not condition precedent to institution of suit are not in dispute and hence we do not find it necessary to refer to judgments relied on in this respect by learned Counsel for Respondent No. 3.
8. The approach to be adopted in present matter is laid down in State of Bihar v. Bihar Distillery Ltd. by Hon'ble Apex Court as under:
18. Now coming to the reasoning in the impugned judgment, we must say with all respect that we have not been able to appreciate it. The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such deceits of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, Act made by the Legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds goods while ascertaining the intent and purpose of an enactment or its scope and application. Now, the result ----State and the concept of 'checks and balances' inherent in such scheme.
In Greater Bombay Co-op. Bank v. United Yarn Pvt. Ltd. 2007 (5) JT 201 SC, Hon'ble Apex Court in para 74 states:
The constitutional validity of an Act can be challenged only on two grounds, viz. (i) lack of legislative competence; and (ii) violation of any of the Fundamental Rights guaranteed in Part III of the Constitution or of any other constitutional provision. In State of A.P. and Ors. v. McDowell and Company and Ors. , this Court has opined that except the above two grounds, there is no third-round on the basis of which the law made by the competent Legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds.
9. We find that if arguments of Advocate B.N. Mohta are accepted, it would for the first time introduce a two-tier system under which a legatee or an executor would first be required to file probate proceedings and thereafter a civil suit to obtain substantive relief. Apart from arguments reproduced above, Petitioners could not point out any prejudice caused to them by continuation of existing system. Argument that judgment of Probate court acts as a judgment in rem is also of no assistance to Petitioners as question of title or other related issues are to be adjudicated in regular civil court only. From past history it appears that till 1925, statutory provision in the shape of Hindu Wills Act, 1870, was applicable in three areas mentioned in Section 57(a). Prior to present Succession Act of 1925, Act known as The Indian Succession Act, 1865, (hereinafter mentioned as 1865 Succession Act) which was applicable had received the assent of the Government General on 16/3/1865 and it constituted the law applicable to all cases of testamentary and in-testate succession in British India. 1865 Succession Act stood repealed by 1925 Succession Act. It was applicable to all classes domiciled in British India other than Hindus, Mohammedans and Buddhists.
When this 1865 Succession Act was under consideration of the Legislature it was proposed that its testamentary portion be extended to Hindus and Mohammedans but then as sufficient information in this respect was not available, Section 331 was introduced as a temporary provision excluding them from operation of any part of the 1865 Succession Act. On 22nd August, 1865, a circular was issued by Home Department to various Local Governments and other competent European and Indian gentlemen pointing out desirability of extension of said Act and seeking their opinion. It appears that thereafter Act No. XXI of 1870 i.e. "The Hindu Wills Act" was enacted. In commentary titled "The Hindu Wills Act", by Mahendra Chandra Majumdar(pleader), 2nd edition revised by Dwarka Nath Chakravarti and published by R. Cambray & Company, Law Booksellers and Publishers, 9, Hastings Street, Calcutta; it is mentioned that while passing 1865 Succession Act, it was noticed that practice of making Wills was sufficiently established in Bengal and in the towns of Madras and Bombay and hence said Act was confined to these places only.
Preamble of the Act states that it was thought expedient to provide rules for execution, attestation, revocation, revival, interpretation and probate of Wills of Hindus, Jainas, Sikhs and Buddhists in the territories subject to the Lieutenant Governor of Bengal and in the towns of Madras and Bombay. Section II extended certain Sections of Indian Succession Act, 1865, to Wills governed by Hindu Wills Act. Section 119 thereof which is pari materia with Section 213(1) of Succession Act 1925 read: -
When this 1865 Succession Act was under consideration of the Legislature it was proposed that its testamentary portion be extended to Hindus and Mohammedans but then as sufficient information in this respect was not available, Section 331 was introduced as a temporary provision excluding them from operation of any part of the 1865 Succession Act. On 22nd August, 1865, a circular was issued by Home Department to various Local Governments and other competent European and Indian gentlemen pointing out desirability of extension of said Act and seeking their opinion. It appears that thereafter Act No. XXI of 1870 i.e. "The Hindu Wills Act" was enacted. In commentary titled "The Hindu Wills Act", by Mahendra Chandra Majumdar(pleader), 2nd edition revised by Dwarka Nath Chakravarti and published by R. Cambray & Company, Law Booksellers and Publishers, 9, Hastings Street, Calcutta; it is mentioned that while passing 1865 Succession Act, it was noticed that practice of making Wills was sufficiently established in Bengal and in the towns of Madras and Bombay and hence said Act was confined to these places only.
Preamble of the Act states that it was thought expedient to provide rules for execution, attestation, revocation, revival, interpretation and probate of Wills of Hindus, Jainas, Sikhs and Buddhists in the territories subject to the Lieutenant Governor of Bengal and in the towns of Madras and Bombay. Section II extended certain Sections of Indian Succession Act, 1865, to Wills governed by Hindu Wills Act. Section 119 thereof which is pari materia with Section 213(1) of Succession Act 1925 read: -
Section 119 -Right as executor or legatee when established.:--No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in British India shall have granted probate of the will under which the right is claimed, or shall have granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
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) & (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 eve 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. 1/09/1870 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. Petitioners have raised the issue without even attempting to demonstrate any accompanying legal prejudice. Effort of Petitioners to seek extension of Section 213(1) to remaining part of the Country therefore must fail.
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 eve 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. 1/09/1870 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. Petitioners have raised the issue without even attempting to demonstrate any accompanying legal prejudice. Effort of Petitioners to seek extension of Section 213(1) to remaining part of the Country therefore must fail.
10. 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 on 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.
11. At this juncture it would be worthwhile to note -Clarence Pais v. Union of India, wherein Hon'ble Apex Court has observed:
6. The scope of Section 213(1) of the Act --- 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.
7. 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 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.
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. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors. (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:-
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. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors. (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 reasons. 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.
12. Writ Petitions are accordingly dismissed. Rule discharged in both matters however, without any order as to costs.
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ABHISHEK 03012020
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