TMI Blog2001 (2) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... ecedent 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 Madias and Bombay or subject to the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived 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 St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om a majority or sizable cross-section of the community arises. 5. On several representations having been made in this regard by the Christian community in India amendment was sought to be introduced by way of a Bill to amend Section 213 of the Act to bring Christians at par with other communities who are not required to obtain probate. The grievance of the Petitioners in these cases, it is stated, is well brought out in the Statement of Objects and Reasons dated May 13, 1942 in respect of proposed amendment of Section 213 which reads as under: Prior to 1901, Indian Christians laboured under a serious grievance, namely, that they were compelled to obtain probate of wills and letters of administration with liability to pay death duties on the death of every owner of property under the Indian Succession Act X of 1865, while Hindus and Muslims were exempt from the provisions of the Act. They have since been partially relieved by being placed practically on the same footing as their non-Christian countrymen in cases of intestacy under the Indian Christian Estates Administration Act VII of 1901; but where the deceased has left a will, they are still bound to obtain probate and pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Hindu Wills Act, 1870 is the forerunner of Section 57 of the Act. This section without the proviso together with Schedule III except Article (5) is Section 2 of Hindu Wills Act, 1870 as amended by Section 154 of the Probate and Administration Act, 1881. The proviso is proviso to Section 3 of the Hindu Wills Act. Thus, the scheme of the said enactment is retained in Section 57 of the Act. 6. 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 procedura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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