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HVK Archives: Succession Act section discriminates against Christians, says Kerala HC

Succession Act section discriminates against Christians, says Kerala HC - The Indian Express

Express News Service ()
October 18, 1998

Title: Succession Act section discriminates against Christians, says Kerala HC
Author: Express News Service
Publication: The Indian Express
Date: October 18, 1998

A division bench of the Kerala High Court today struck down as
unconstitutional section 118 of the Indian Succession Act which
relates to bequests by Christians of their properties for
religious or charitable use.

The section prohibited a Christian having a nephew or niece or
any nearer relative from bequeathing any property for religious
or charitable use, except by a will executed not less than 12
months before his death, and deposited within six months from
its execution in some place provided by law for safe custody of
the wills of living persons.

That means a Christian testator having a nephew or niece or
nearer relations (father, mother, son, daughter, adopted son,
grandfather, grandmother, grandson, granddaughter, brother or
sister) cannot bequeath any property for religious or charitable
use unless (1) the will is executed not less than 12 months
before his death; (2) it is deposited within six months of its
execution in some place provided by law and (3) it remains in
deposit till the death of the testator.

Or else the bequest for religious or charitable use would be
void.

Such a harsh and rigorous procedure envisaged under section 118
does not apply to members of other communities as the section is
not applicable to Hindus, Muslims, Buddhists, Sikhs, Jains or
Parsis.

Therefore, the Bench consisting of Justice A R Lakshmanan and
Justice K Narayana Kurup declared that the section discriminates
against a Christian vis-a-vis a non-Christian.

It also discriminates against testamentary disposition by a
Christian vis-a-vis non-testamentary disposition, discriminates
against religious and charitable use of property vis-a-vis all
other uses including not-so-desirable purposes, discriminates
against a Christian who has a nephew, niece or nearest relative
vis-a-vis a Christian who has no relative at all and finally
discriminates against a Christian who dies within 12 months of
execution of the will.

The judgment was pronounced on two public interest writ
petitions filed by Valiyakalayil Preman of Thiruvalla and V J
Augustine of Kochi challenging this discrimination.

There is no answer from the Central Government Standing Counsel,
who justified the existence of the provision, as to why it
regulates only religious and charitable bequests and that too
bequests of Christians alone. The statute places undue, harsh
and special burden on Christian testators alone.

The Bench said that to stand the test of the constitutional
mandate of equality before law and equal protection of law in
the context of avoiding discrimination, the Act requires an
amendment. If Parliament does not remove the discrimination, the
courts in exercise of their jurisdiction and to remedy violation
of fundamental rights are bound to declare the impugned
provision invalid.


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