Section 213 of the Indian Succession Act, 1925, lays down that “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 an authenticated copy of the will annexed.” Further, the section “shall not apply in the case of wills made by [a] Muhammadan or [an] Indian Christian”. It shall only apply in the case of wills made by a Hindu, Buddhist, Sikh or Jaina where wills are of the classes specified in section 57; and by a 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, insofar as they relate to immovable property situate within those limits.”
The words “Indian Christian” were inserted by the Indian Succession (Amendment) Act 26 of 2002, following pressure from Christians of Kerala. It was done by means of the Indian Succession (Kerala Amendment) Act, 1996 (Act 1 of 1997). Thus, Christians of Kerala were exempted from the applicability of Section 213.
In Kalari Thresslamma v. Kathidukkanamikhal Joseph (AIR 1998 Ker 116) it was held that Christians of Kerala did not require to get their wills probated, by virtue of the Kerala State Amendment Act 1 of 1997. But the amendment did not give immunity from Section 213(1) to wills executed by Christians of Kerala involving property outside Kerala: in such cases they still required probate or letters of administration to establish rights. Clarence Pais v. Union of India (AIR 2001 SC 1151 @ 1152), was filed by a Christian residing in Kerala who was the beneficiary of a registered will executed by his aunt in 1986 bequeathing him a flat in Delhi. After she died in 1991, the housing society refused to hand over the flat to him without a court direction. He could not get relief from the court as he was a Christian bound by the restriction provided under Section 213. He challenged the constitutional validity of Section 213 as being discriminatory against Christians, but the court held that historical reasons may justify differential treatment of separate geological regions, that Christians alone had not been discriminated.
The Government of India conceded the demand made by the Christian community and enacted Amendment Act 26 of 2002 inserting the words “or Christians” after the word “Mohammedans” in sub-section (2) of Section 213 as was done in the Kerala Amendment Act 1 of 1997.
As a result, the provisions of Section 213(1) which necessitate the grant of probate of the will or letters of administration with the will or with a copy of the authenticated copy of the will annexed by a court of competent jurisdiction in order to establish the right as executor or legatee is now not applicable to wills made by Mohammedans and Christians. The provision, however, continues to apply in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in Section 57.
The exemption for Muslims under the parent Act stemmed from Muslim Personal Law. The stipulation imposed in Section 213(1) in respect of wills made by a Christian, Hindu, Buddhist, Sikh or Jaina was the legacy of colonial rule; it was extended to Parsis in 1962. Wills executed by Christians have been exempted across India, while the provision remains for Hindus, Buddhists, Sikhs, Jainas or Parsis in a limited form.
An article by this writer, published in Law Weekly (2003 (2) LW 35 (JS)), challenged the validity of Section 213. An appended Editorial Note said: “If in regard only to properties in Chennai, Mumbai or Kolkata or in the event of the testator having executed the testament while within these cities, is a probate made requisite by this provision leaving aside the entire country does not this provision appear an anachronism?”
The Law Commission headed by Dr. AR. Lakshmanan, in its 209th Report (2008), referred to the article and recommended the deletion of Section 213. But the Ministry of Law and Justice seems to have put the matter in cold storage. MPs from Maharashtra, West Bengal and Tamil Nadu have not raised the issue either. The subjects of “wills” and “succession” are in the Concurrent List, and the three States are free to pass amendments to the Succession Act deleting Section 213, as was done by Kerala.
(The author is a former Judge of the High Court of Madras)
