CLARENCE PAIS & ORS. V.

THE UNION OF INDIA 2001

Presented by :
Shivangi Mayaramka
Sana Maher
INTRODUCTION
•
The term inheritance‘ has been defined in Black‘s Law Dictionary as, ―a. Property received from an ancestor under the laws of
intestacy; b. Property that a person receives by bequest or devise.

•
The dictionary, further, defines descent and distribution‖ succession‘ as, ―the acquisition of rights or property by inheritance under
the laws of A perusal of the above definitions indicates that, inheritance‘ is associated with the act of receiving property, while
succession is related to acquiring rights or title in the property received by way of inheritance‘.

•
To briefly trace the history of law of intestate succession applicable to Indian Christians, it is imperative to segregate it into three
distinct periods, viz (i) pre1865, (ii) between 1865 and 1925 and (iii) post 1925.

•
The Indian Succession Act, 1925 provides for the inheritance laws for all other religions, including Christians. Christians have varied
laws on succession and familial relations. The rules for succession among the Christians has been codified under the Indian
Succession Act, 1925, while on the other hand customary practices also have an influence on the principles of inheritance.

•
The British Indian Government enacted the Indian Succession Act, 1865 which was to apply in the case of Christians. This Act was
later replaced by the Indian Succession Act, 1925, which currently governs the inheritance in case of Christians.
FACTS OF THE CASE:
2 subsequent writ petitions were filed :

1st : no. 674 of 1998 is by a christian belonging to the

roman catholic community residing in the state of
Kerala

The petitioner was the sole beneficiary of a registered

will dated 15/12/1986 executed by his now late aunt
Mrs. Lissa Jos Arakal (owned a flat in Pitam Pura,
New Delhi)

Mrs. Lissa remained unmarried till the day she died

and out of love and affection towards the petitioner she
bequeathed all her rights to property in favour of the
petitioner.
FACTS CONTINUED :
• Aunt died : 09/08/1991 and later the petitioner received a letter in august of ’93 from
the housing society (M/s Loyola Cooperative housing society) stating : that the flat
would not be handed over to the petitioner without the courts direction.
• The Petitioner replied with a request to not handover the flat to anyone other than him
• The follow up reply from the housing society: saying that one Barley Arakal is the
nominee of the testatrix as per the record and since it is a property dispute the status
quo will be maintained.
• The second writ petition was filed by Dakshina Kannada Karnataka
ISSUES :
1. Wether the petitioner is in a legal position to assert his right over his aunts property
considering what is laid down by section 213 of the Indian succession act? (Pre
amendment 2002)
2. Challenged the Validity of section 213 (1) on discriminatory grounds.
3. Effect of taking out probate of the will is to establish it’s genuineness or validity of the
will and if the grant of probate is a condition precedent to the vesting of the estate in the
executor in light of what is mentioned in Section 211 of the ISA.
RULE OF LAW :
Section 213 of the ISA to be read in cohorts with section 57 which grants excpetions (post 2002 amendment - subclause 1 ):

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 1[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. 2[(2) This section shall
not apply in the case of Wills made by Muhammadans 3[or Indian Christians], or and shall only apply—

2. 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

3. in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment)
Act, 1962 (16 of 1962), where such Wills are made within the local limits of the 4[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 immoveable property situated within those limits.]
SCOPE & FACETS OF S. 213 OF THE ISA
1925
• Section 2(d) of the Act defines “Indian Christian” means, a native of India who is or in good faith claims to be,
of unmixed Asiatic Descent and who professes any form of the Christian Religion. The religion of the deceased
determines the Succession to his estate.
• This property may be ancestral or self acquired and may devolve in two ways.
1. By Testamentary Succession i.e., when the deceased has left a will bequeathing his property to specific heirs.
2. By Intestate Succession, when the deceased has not left a will whereby the law governing the deceased
(according to his religion) steps in, and determines how his estate will devolve.

• Section 213(1) makes it mandatory for every legatee or executer to obtain a Probate of the will or Letter of
Administration with the will before they try to execute a will. Otherwise, an executor or legatee cannot establish
any right in a court of law pertaining to the concerned will and any estate mentioned therein.
• Probate' means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of
administration of the estate of the testator. A probate can be granted only to the executor appointed under the
Will. Further, a probate is essential if the Will is for immovable assets in multiple states.
ARGUMENTS :
PETITIONER :

• It could be noted 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 fact 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, hence the petitioner is challenging the validity of the said
provision for identical reasons as set forth in the connected writ petition filed by Dakshina Kannada Karnataka.

• It is also brought to the 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) Act1986 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 State of Kerala in respect of the property held by the
deceased but it is not clear whether the amendment would apply to the property of a testator who belongs to the State of Kerala
in respect of the property situated outside the State of Kerala, as in the present case.

• The petitioner points out the anomaly arising in the law. Thus a Christian residing in the State of Kerala owning property therein if dies
after making a Will, the legatee thereto need not to obtain a probate in terms of Section 213 of the Indian Succession Act before
establishing their right, while those residing in other parts of the country are required to do so.

• The anomaly pointed out by the petitioner is that the Will is made in respect of a property situate in some part of the country
other than Kerala.
ARGUMENTS :
GOVERNMENT:
• members of the Christian community are not put to any discrimination and they are compelled to obtain probate or
letters of administration of the Wills only by way of rule of evidence and procedure and it is intended to provide for a
right of means of establishing the genuineness of a Will conclusively.

• The State Governments bring in changes in personal law from time to time as per the social conditions prevailing in
the particular States. Therefore, the amendment made in the State of Kerala would not discriminate the persons
residing in other parts of the country.

• The contention is that the classification has achieved social acceptance as is evident from the fact that it has been in
existence in the statute book for a quite long time and it is not established that how such classification in the statute
suffers in any manner from discrimination, and the provisions being procedural in nature are intra vires to the
Constitution.

• Lastly the court pronounced: undoubtedly the states and union should be alive to this problem. Only on the basis that
some differences arise in one or the other state in regard to testamentary succession the law does not become
discriminatory so as to be invalid.
ANALYSIS
•Section 213 of the Indian Succession Act is challenged on the grounds of it being unconstitutional and hence it
shouldn’t be enforced on the Indian Christians

•The Kerala Legislature has enacted an amendment known as Indian Succession (Kerala Amendment) Act, 1986
by which sub-section (1) 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. The amendment however didn’t talk about the
property owners outside the state of Kerala. The petitioner points out this very anomaly in the act. Thus, an
Indian Christian residing in the state of Kerala needn’t obtain a Probate (the copy of Will certified under the seal
of a court of competent jurisdiction) over the Will to succeed over the property in his name. However, those
residing in other parts of the country need to obtain a Probate

•The Government of India defended the statute on the grounds that it was not discriminating the Christian
community. The Probate was merely a necessity, acting as a rule of evidence. The State Governments make
changes to personal laws based on the social conditions prevailing in the state and hence there is no basis for any
discrimination. This classification has received acceptance due to its presence in the statute book for a very long
time. The Central Government doesn’t interfere with the personal laws of the minorities unless there is some
amendment to be made
CONCLUSION
•From the facts of the case and the above mentioned sections and acts, Section 213 has proven to be
unconstitutional due to the inequality clearly seen and the discrimination between the minorities in India.

•Necessary amendments must be made to the act to promote equality amongst the minorities in India.

•In my opinion Section 213 is unconstitutional as it promotes inequality and is discriminatory in nature owing to
the fact that Hindus including Buddhists, Sikhs or Jains do not need to produce a Probate to obtain any property
legally as successors.
 LAW COMMISSION REPORT(S):
1. Law Commission of India Consultation Paper on Reform of Family Law,31 August 2018

• 5.108 : Following the decision of the Supreme Court in Mary Roy the High Court of Kerala ruled that the Cochin Christian Succession Act, 1921
also stood repealed by the Part B States (Laws) Act, 1951.

2. LAW COMMISSION OF INDIA Proposal for omission of Section 213 from the Indian Succession Act, 1925, Report No. 209 JULY 2008

• The result is that the provision of sub-section (1) of section 213 which necessitates grant of probate of the will or letters of
administration with the will or with a copy of an 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 the wills made not only by Muhammadans but also by Indian Christians. But this
provision continues to apply.

• the exemption in respect of the wills made by Muslims under the parent Act was due to the Muslim Personal Law. The stipulation imposed under
the unamended section 213 of the Act in respect of wills made by any Indian Christian, Hindu, Buddhist, Sikh or Jaina was the legacy of the
colonial rule, which was extended to Parsis in 1962. The discrimination against the wills executed by the Indian Christians has now been
removed by the 2002 Amendment on an All-India basis.

• Since there is no uniformity in the application of section 213 insofar as it relates to the Muslims and Christians on the one hand and Hindus,
Buddhists, Sikhs, Jainas and Parsis on the other, the Commission has resolved to recommend for the repeal of section 213 altogether from the
statute and remove the dis uniformity /discrimination and attain uniformity. There does not appear to be any earthy reason to ignore the
claim to equality of the major section of the people of Ind ia, the Hindus etc. Article 15 of the Constitution of India states that the State
shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
TRIVIA:
• The rules for Succession among the Christians have been codified under the Indian
Succession Act, 1925. Kochin Christian Succession Act, 1921 and the Travancore Christian
Succession Act, 1916 were repealed and now the Christians following general scheme of
inheritance under Indian Succession Act, 1925.

• Christians in the State of Goa and the Union Territories of Daman and Diu are governed by
Portuguese Civil Court 1867, while those in Pondicherry governed by French Civil Court
1804, Customary Hindu Law or Indian Succession Act. While on the other hand. Customary
practices also have an influence on the principles of inheritance, protestant and Tamil
Christians (Living in certain talukas) are still governed by their respective customary laws.
BIBLIOGRAPHY

1. Clarence Pais and ors. Vs union of India 2001 SCC 325

2. Law Commission of India Consultation Paper on Reform of Family Law,31 August 2018
3. LAW COMMISSION OF INDIA Proposal for omission of Section 213 from the Indian Succession Act, 1925, Report No. 209 JULY
2008
4. E.D. Devadason, Christian Law in India,296 (DSI Publications, Madras, 1974)
5. Class lectures
6. Poonam Pradhan Saxena : introduction laws of intestate laws and testamentary succession in india
FIN.