The Centre has informed the Madras High Court of its intent to amend Section 213 of the Indian Succession Act, 1925 which mandates that Hindus, Buddhists, Jains, Sikhs and Parsis obtain probate or Letter of Administration (LoA) from the courts concerned, to inherit for property through a will executed in Chennai, Mumbai or Kolkata. The proposed amendment would also cover wills related to immovable property situated in the three metropolitan cities.
Appearing before the first Division Bench of Chief Justice S.V. Gangapurwala and Justice P.D. Audikesavalu, Additional Solicitor General AR.L. Sundaresan said, the Union Ministry of Law and Justice was taking steps to amend the provision. He would apprise the High Court of further developments in due course. The judges recorded his submission and adjourned a batch of cases, challenging the legal provision, to October 10.
In a reply affidavit filed before the Bench, an Additional Secretary to the Ministry said: “The difference between Hindus, Buddhist, Sikhs, Jains and Parsis on the one side and Christians and Muslims on the other side for grant of probate or wills or Letters of Administration, with the will or its authenticated copy annexed by a court of competent jurisdiction, in order to establish the right as executor of Legatee, is not required to continue.”
The reply affidavit also stated that “the legislative intention and the purpose of the existing Section 213 of the Act is infructuos (sic) and not required to continue.”
E. Manohar, counsel for one of the writ petitioners, K.K. Subramanian of Shastri Nagar in Chennai, told the court that the 1925 legislation was enacted during the British era when places under colonial rule were classified as Part A, B and C depending upon their importance and land value.
The Britishers had exempted the Muslims from the rigours of Section 21 of the Succession Act because they were governed by the Sharia (Muslim personal law). This personal law permits a person to give away to a third person or entity only a maximum of one-third of his property, that could be left after payment of all debts and his funeral expenses too, without the consent of his legal heirs. A similar exemption was provided to Christians too, by way of an amendment in 2002.
However, people professing Hinduism, Buddhism, Jainism, Sikhism and Zorastrianism could not inherit properties in the three metropolitan cities merely on the basis of a will executed by their family members. They had to necessarily approach the High Court and obtain probate or an LoA on payment of a necessary court fee before being able to claim a right of ownership over those properties. This was a time consuming process, the counsel complained.
The petitioner, in his affidavit, questioned the correctness of imposing such conditions on the basis of religion and geographic location. He urged the court to declare Section 213 unconstitutional, and to be in violation of Articles 14 (right to equality) and 15 (State shall not discriminate on the basis of religion, race, caste, sex and so on) of the Constitution.
