CLARENCE PAIS AND ORS versus UNION OF INDIA

Citation: [2001] 2 S.C.R. 43 · Decided: 22-02-2001 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

CLARENCE PAIS AND ORS. 
A 
v. 
* 
UNION OF INDIA 
FEBRUARY 22, 2001 
[S. RAJENDRA BABU AND R.C. LAHOTI, JJ.] 
B 
Indian Succession Act, 1925 : 
.oi, 
Section 213(2) (as amended by KeralaAmendment Act, 1986)--Scope 
and ambit of-Probate ofWill-Reqidrement of-Applicability-Held: S. 213 c 
is not only applicable to Christians but also to other religions-Hence, it is not 
discriminatory-Indian Succession (KeralaAmendment) Act, 1986. 
In Writ Petition (C) No. 137 of 1997 the petitioner was an Indian 
Christian and citizen of India. Under Section 213 of the Indian Succession 
Act, 1925 there was a compulsory requirement of probating a Will to 
establish the right of an executor or a legatee under a Will and was 
D 
restricted to Indian Christians and certain other categories of persons 
professing Hindu and other faiths. The contention of the petitioner was 
that there was no rational or discernible basis for making the require-
ment of probate for only ~limited section of Indians citizen necessary such 
E 
..... 
as Indian Christians excluding other sections . 
In Writ Petition (C) No. 674 of 1998 the petitioner was an Indian 
Christian residing in the State of Kerala. The petitioner was the sole 
beneficiary of a registered Will in respect of a property situated outside the 
State executed by his aunt who was a Christian. The petitioner contended 
F 
that as per the Indian Succession (Kerala Amendment) Act, 1986 a Chris-
tian residing in the State of Kerala owning property therein if died 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 his right, 
while those residing in other parts of the country were required to do so. 
G 
Dismissing the petitions, the Court 
HELD : 1. The scope of Section 213(1) of the Indian Succession Act, 
...,.-
1925 is that it prohibits recognition of rights as an executor or a legatee 
under a Will without production of a probate and sets down a rule of 
evidence and forms really a part of procedural requirement of the law of 
H 
43 
A 
B 
c 
D 
E 
F 
G 
44 
SUPREME COURT REPORTS 
[2001] 2 S.C.R. 
forum. Section 213(2) of the Act indicates that its applicability is limited 
to cases of persons mentioned therein. The bar that is imposed by this 
Section is only in respect of the establishment of the right as an executor 
or a legatee and not in respect of the establishment of the right in any 
other capacity. The Section does not prohibit the Will being looked into 
for purposes other than those mentioned in the Section. The bar to the 
ei>tablishment of the right is only for its establishment in a court of justice 
and not its being referred to in other proceedings before administrative or 
other Tribunal. The Section is a bar to everyone claiming under a Will, 
whether as plaintiff or defendant, if no probate or Letters of Administra-
tion is granted. The effect of Section 213(2) of the Act is that the require-
ment of probate or other representation mentioned in sub-section (1) for 
the purpose of establishing the right as an executor or a legatee in a court 
is made inapplicable in case of a Will made by Muhammadans and in the 
case of Wills coming under Section 57(c) of the Act. [50-B-E] 
2. A combined reading of Sections 213 and 57 of the Act would show 
that where the parties to the Will are Hindus or the properties in dispute 
are not in territories falling under Section 57(a) and (b), sub-section (2) of 
Section 213 of the Act applies and sub-section (1) has no application. As a 
consequence, a probate will not be required to be obtained by a Hindu in 
respect of a Will made outside those territories or regarding the immov· 
able properties situated outside those territories. The result is that the 
contention put forth by the petitioners that Section 213(1) of the Act is 
applicable only to Christians and not to any other religion is not correct. 
It cannot be said that the Section is exclusively applicable only to Chris· 
tians and, therefore, it is discriminatory. [50-G-H; 51-A; CJ 
B. Venkataramana v. State of Madras, AIR (1951) SC 229; Staie of 
Rajasthan v. Thakur Pratap Singh, AIR (1960) SC 1208; Ms. Hem Nolini 
Judah v. Mrs. Isolyne Sarojbashini Bose, [1962] Supp. 3 SCR 294; Ahmedabad 
Women Action Group (AWAG) v. Union of India, [1997) 3 SCC 573; 
Sheokaransingh v. DaulaJram, AIR (1955) Raj. 201; Mary Sonia Zachariah v. 
Union of India, (1995) 1 KLT 644 and Preman v. Union of Indi

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