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John Vallamattom & Anr. v. Union of India
AIR2003SC2902, (2003)6SCC611, 2003(5)SCALE384
Hon’ble Judges/Coram: V.N. Khare, C.J., S.B. Sinha and AR. Lakshmanan, JJ.
Date of Decision: 21.07.2003
FACTS:-
In this petition under Article 32 of the Constitution of India the Court has to deal with the constitutionality of the provisions of Section 118 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’). Petitioner No. 1 is an Indian citizen and is a Christian Priest belonging to the religious denomination of Roman Catholics. The second petitioner is also a member of the Christian community. The petitioners are aggrieved by the discriminatory treatment meted out to the members of the Christian community under the Act by which they were practically prevented from bequeathing property for religious and charitable purposes and that has led them to file this writ petition. It is urged that having regard to the fact that the impugned provision owes its origin to the statute of Mortmain which is repealed in England cannot be any reasonable justification for retaining the same in the Indian statute books particularly in view of the fact that upon coming into force the Constitution of India, the pre-constitution statute could remain valid only if the same conforms to the provisions contained in Part III thereof.
ISSUE:-
- Whether Section 118 of the Act is unconstitutional or not?
- Whether statutory restrictions on disposition of property for religious and charitable purpose is violative of the fundamental right to profess, practise and propagate religion under Article 25?
JUDGMENT:-
The concept of ownership of a person over a property or a right although is a varying one includes right to dispose of his property by Will. The underlying principle contained in Section 118 of the Act indisputably was to prevent persons from making ill-considered death-bed bequest under religious influence. It is beyond any cavil of doubt that the restrictions imposed thereby have a great impact on a person who desires to dispose of his property in a particular manner which would take effect upon or after his death. The Indian Succession Act confers such a right upon all persons irrespective of caste, creed or religion he belongs to. Section 59 of the Act provides that every person of sound mind and who is not a minor is entitled to dispose of his property by Will. Thus all persons who have sufficient discretion and free will are capable of disposing of their property by Will. Section 51 provides that a Will, the making of which is caused by fraud or coercion or by such opportunity which takes away the free agency of the testator is void. Section 63 deals with execution of unprivileged Wills providing that the Will shall be signed by the testator and it shall be attested by two or more witnesses each of whom should have seen the testator sign or affix his mark to the Will.
Section 118 of the Act imposes a restriction only on the Indian Christians. The said restriction is not applicable to the citizens belonging to other religions including Parsis. The harsh and rigorous procedure envisaged under Section 118 of the Act in relation to testamentary disposition of property for religious and charitable use does not apply to members of Hindu, Mohammedan, Buddhist, Sikh or Jaina Community by virtue of Section 58 of the act. At the same time, since no exemption is granted by the State Government to the members of the Christian community under Section 3 of the Act, Christians cannot bequest property for religious or charitable use unless fresh Will is executed on the expiry of every 12 months, if the testator does not suffer from the misfortune of death within the statutory period of 12 months. By Act 51 of 1991, Parsi were also excluded from the application of Section 118 of the Act. Thus, it is seen that the procedure prescribed has been made applicable to Christians alone. There is also no acceptable answer from the respondent as to why it regulates only religions and charitable bequests and that too, bequests of Christians alone. the whole case, in my view, is based upon undue, harsh and special burden on Christian testators alone. The short question, therefore, which arises for consideration is as to whether the said restriction imposed by Section 118 of the Act is a reasonable one.
As per the impugned provision, a person having a nephew or niece or nearer relative cannot bequeath any property for religious or charitable use unless (1) the Will is executed not less than 12 months before the death of the testator, (2) it is deposited within six months from the date of execution in some place provided by law and (3) it remains in deposit till the death of the testator. The right to own or dispose of a property mainly arises either by operation of law or by reason of some act or event. An Indian Christian in terms of the impugned provision is forbidden from making any bequest excepting in the manner provided for therein. Such bequest is prohibited only in the event of the testator has a nephew or a niece or any nearer relative. Indisputably, a wife of a testator, in terms of definition as contained in Section 28 read with the First Schedule of the Act would not be a near relative, although an adopted son would be. It is difficult to appreciate as to why a testator would, although, be entitled to bequeath his property by way of charitable and religious disposition if he has a wife but he would be precluded from doing so in the event he has a nephew or a niece.
It may be seen that as per Section 118 of the Act bequest of property for religious and charitable use fails if for any reason the testator suffers from the misfortune of death within twelve months of execution of Will or if it is not deposited in the place provided by law within 6 months. Since as per the impugned provision the testator who lives beyond the statutory period of twelve months is not able to execute his wishes in relation to his property, the impugned provision defeats the object of the Will. In this view of the matter, such a provision is unreasonable and arbitrary.
Court went on further to hold that even if it is assumed that the purpose of Section 118 of the Act is to prevent bequest of property under religious influence, there is no justification in restricting testamentary disposition of property for charitable purpose. Charitable purpose includes relief to poor, education, medical relief, advancement of objects of public utility, etc. As the aforesaid charitable purposes are philanthropic and since a person’s freedom to dispose of property for such purposes has nothing to do with religious influence, the impugned provision treating bequests for both religious and charitable purposes is discriminatory and violative of Article 14 of the Constitution. Further, it may be seen that there is no rationale behind limiting the survival of the testator to a period of twelve months in order to give effect to his wishes. There is also no rationale in the classification between a testator, who survives beyond twelve months, and a testator, who does not survive beyond the same period, in declaring the will of the former as void and that of the latter as valid. Apart from the fact that the period or duration of life of a testator has no relation with the purpose of Will, there appears to be no reason behind fixing twelve months’ period. Testators constitute a homogeneous class and they cannot be divided arbitrarily on the basis of duration of their survival which is unrelated to the purpose of executing a Will. In that view of the matter, the period of twelve months has no nexus with the object of performing a philanthropic act. Thus, the impugned provision is violative of Article 14 of the Constitution.
Now, with regards to the second issue, Court observes that Article 25 is subject to the other provisions contained in Part III of the Constitution of India. Disposition of property for religious and charitable purpose is recommended in all the religions but the same cannot be said to be an integral part of it. What was thought of by the Constitution makers while conferring right to profess, practise and propagate religion was that freedom of conscience be supplemented by freedom of unhampered expression of spiritual conviction. Article 25 provides freedom of ‘profession’ meaning thereby the right of the believer to state his creed in public and freedom of practice meaning his right to give it expression in forms of private and public meaning his right to give it expression in forms of private and public worships [See Stainislaus Rev. v. State of M.P. AIR1975MP163]. A disposition towards making gift for charitable or religious purpose may be a pious act of a person but the same cannot be said to be an integral part of any religion. It is not the case of the petitioners that the religion of Christianity commands gift for charitable or religious purpose compulsory or the same is regarded as such by the community following Christianity. The petitioner has not been able to place any material to show that disposition of property for religious and charitable purposes is an integral part of Christian religious faith. If a person professing Christian religion does not show any inclination of disposition towards charitable or religious purposes, he does not cease to be a Christian. Even certain practices adopted by the persons professing a particular religion may not have anything to do with the religion itself.
Article 25 merely protects the freedom to practice rituals and ceremonies etc. which are only the integral parts of the religion. Article 25 of the Constitution of India will, therefore, not have any application in the instant case. For the self-same reasons, Article 26 may also not have any application in the instant case.
In the end, Court took the liberty to discuss the relation between Article 25 and 44 of the Constitution. According to Court, Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matter of secular character within the ambit of Articles 25 and 26 is a suspect legislation.
HELD:-
Section 118 of the Indian Succession Act is declared unconstitutional being violative of Article 14 of the Constitution of India.
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