PREMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. P. Chidambaram Senior Advocate, for Mr. Tony George Kannanthanam and Mr. Romy Chacko for the petitioners and Mr. K. Ramakumar, Senior Central Government Standing Counsel for the first respondent in O.P. No. 5150 of 1995 and the sole respondent in O.P. 16501 of 1996. The petitioners in both the Original Petitions are Christians. Aggrieved against S.118 of the Indian Succession Act, 1925, they have filed the Original petitions to declare the said provision as unconstitutional, discriminatory and violative of Art.13(1), 14, 15(1), 25 and 51A of the Constitution of India and to direct the State Government to exempt Christians from S.118 by invoking S.3 of the Indian Succession Act since S.118 is violative of Art.14 of the Constitution of India. A further direction is also sought for to the State Government to take a decision on Ext. P1 representation and pass a speaking order within one month.

(2.) According to the petitioners, they are aggrieved by the discriminatory treatment meted out to members of Christian community under the Indian Succession Act by which they are practically prevented from bequeathing property for religious and charitable purposes. The Indian Succession Act 1865 was repealed and replaced by the Indian Succession Act, 1925, which was enacted consolidating various other enactments relating to intestate and testamentary succession. The statement of objects and reasons of the 1925 Act discloses that it is intended to consolidate Indian law relating to succession. S.3 of the said Act confers power on the State Government to exempt any race, sect or tribe in the State from the operation of S.5 to 49,58 to 191 and 212 of the Act Under S.4 (Part III of the Act (of domicile), the provisions of Part II of the Act shall not apply if the deceased was a Hindu, Mohammadan, Budhist, Sikh or Jaina, S.20 Part III deals with interests and powers not acquired nor lost by marriage. This provision will not apply to any marriage contracted before the first day of January, 1866; and it shall not apply and shall be deemed never to have applied, to any marriage, one or both of the parties to which professed at the time of the marriage the Hindu, Mohammedan, Buddhist, Sikh or Jaina religion. S.23 of Part IV (of consanguinity) of the Act provides that the said part shall apply to any will made or intestacy occurring before the first day of January, 1866, or to intestate or testamentary succession to the property of any Hindu, Mohammadan, Budhist, Sikh or Jaina or Parsi. Under S.29(1) Part V of the Act (intestate Succession), Part V of the Act shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Mohammadan, Budhist, Sikh or Jaina. Sub-s. (2) of S.29 states that save as provided in sub-s. (1) or any other law for the time being in force, the provisions of this Part shall constitute the law of India in all cases of intestacy. S.31 of Chapter II of the Act provides that the said Chapter shall not apply to Parsis. S.50 of the Chapter III lays down general principles relating to intestate succession among Parsis. S.57 of Part VI deal with the application of certain provisions of that Part to class of wills made by Hindus, etc. and provides that the provisions of the said part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply to (a) all wills and codicils made by any Hindu, Mohammadan, Budhist, 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, Budhist, 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. As a result of the above provisions wills made by any Hindus, Budhists, Sikhs or Jaina, on or after 1927 must be reduced to writing, signed and attested. But all wills made by any Hindu, Budhist, Sikh or Jaina, before the 1st January 1927, outside the areas governed by the Hindu Will; act, ie., outside the Province of Bengal and the Presidency towns of Madras and Bombay, were valid even if made orally or unattested. S.58 does not apply to Muhammadans and has a limited application only to the extent specified in S.57 to Hindus, Budhists, Sikhs or Jaina. S.58(2) says that the provisions of Part VI shall constitute the law of India applicable to all cases of testamentary succession, save as provided in sub-s. (1) or any other law for the time being in force.

(3.) We will now come to S.118, the Constitutional validity of which is challenged in these proceedings. S.118 reads as follows: