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Religious Freedom Vis-à-vis Uniform Civil Code

John Vallamattom v. Union of India
AIR 2003 SC 2902
Judges: V.N. Khare, S.B. Sinha and A.R. Lakshmanan, JJ.
Date of Decision: 21-7-2003

In this petition under article 32 of the Constitution of India we are concerned 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.

The history of section 118 of the Act can be traced to an ancient British statute of 1735 known as ‘Charitable Uses Act, 1735’ (hereinafter referred to as “1735 Act”). 1735 Act provided that gift by Will after 24th June, 1736 of land for charitable purposes were void as a general rule. 1735 Act was repealed by Mortmain and Charitable Uses Act, 1888. Part I of Mortmain and Charitable Uses Act, 1888 prohibited assurance of land to charitable Corporations by providing that land shall not be assured to or for the benefit of or acquired by or on behalf of any corporation in Mortmain otherwise than under Royal Licence or statutory authority was provided for and if so assured shall be forfeited to the Queen. As per the Mortmain statute the expression “assurance” included gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge encumbrance, device, bequest and every other instrument by deed, Will or other instrument. The said statute also provided that the land may be assured by Will to or for the benefit of any charitable use but unless the recipient charity was authorised to retain land by the Court or the Charity Commissioner, the land must, notwithstanding any contrary direction contained in the Will, be sold within one year from the testator’s death or such extended period as may be determined. If the land is not sold within the appointed period, the land will vest in the official trustee of charity lands and Charity Commissioner was required to take steps to enforce the sale. The further restriction provided that every assurance of immoveable property for any charitable use is void unless it is executed within a period of twelve months before two witnesses and enrolled in Chancery within six months before the death. The said Act was enacted with a view to prevent persons from making ill-considered death bed bequests under religious influence. Amending Act, 1891 further provided that the land may be assured by Will to or for the benefit of any charitable use; but in such case it was required to be sold, as a rule, within one year from the testator’s death.

The Indian Succession Act, 1925 was enacted in the year 1925, by reason whereof, the Indian Succession Act, 1865 was repealed. Section 3 of the Act confers power of the State Government to exempt any race, sect or tribe residing therein from the purview of sections 5 to 49, 58 to 191 and 212. Testamentary succession has been dealt with in Part VI of the Act. Section 58 provides that the provisions of Part VI would not apply to the testamentary succession to the property of any Mohammedan, Hindu, Buddhist, Sikh or Jain. Section 59 provides that every person of sound mind not being a minor may dispose of his property by Will. Chapter VII of the Act deals with void bequests.

The provision of section 118 thus, postulates that a person having a nephew or niece or any nearer relative cannot bequeath his property for religious or charitable use unless: (i) the Will is executed not less than twelve months before the death of testator; (ii) it is deposited within six months from its execution in some place provided by law for the safe custody thereof; and (iii) it remains in such deposit till the death of the testator.

The section plainly means that to the extent to which the bequest is for religious or charitable uses, the application of this section is attracted despite the fact that the bequest may be for only a part of the property or some interest in the property.

The question as to who are the near relations for the purpose of section 118 is to be determined according to the Table of Consanguinity, as per section 28 read with Schedule I of the Act. The term ‘any nearer relative’ includes father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother or sister. The word ‘relative’ means legitimate relative and has no application to any relationship by marriage. It includes adopted son also. So a Christian testator having a nephew or niece or nearer relatives must execute the Will at least 12 months before his death, and deposit it within six months, otherwise the bequest for religious or charitable use would be void.

It was 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.

Further according to the petitioners the said provision is violative of articles 14 and 15 of the Constitution of India inasmuch as it:

(a) discriminates against a Christian vis-à-vis non-Christians;
(b) discriminates against testamentary disposition by a Christian vis-à-vis non-testamentary disposition;
(c) discriminates against religious and charitable use of property vis-à-vis all other uses including not so desirable purposes;
(d) discriminates against a Christian who has a nephew, niece or nearest relative vis-à-vis Christian who has no relative at all; and
(e) discriminates against a Christian who dies within twelve months of execution of the Will of which he has no control.

It was submitted that a citizen of India is also entitled to live with basic human dignity and, thus, has a right to effectuate his wishes according to his own discretion by having a freedom to choose his legatee under the Will as well as the purpose of bequest.

It was also submitted that the said provision is violative of article 1 of the Vienna Declaration on the Right to Development adopted by the World Conference on Human Rights of 1993 and article 18 of the United Nations Covenant on Civil and Political Rights, 1966.

The petitioners have further raised a plea that it is an essential and integral part of Christian Religious Faith to contribute for religious and charitable purposes as has been prescribed in the Canon Law of the Code of Canons of the Eastern Churches and the teachings of the Holy Bible, the impugned provision violates articles 25 and 26 of the Constitution of India.

The contention of the respondent, however, is that the Indian Succession Act, 1925 being a pre-constitution enactment having regard to article 372 of the Constitution of India, continues to be in force within the territory of India. The respondent would not deny or dispute the legislative history of the said provision but contends that the Indian Parliament is not bound by any legislative changes or development in this behalf in England or any other foreign country. Further, contention of the respondent appears to be that the Indian Christians form a separate and distinct class and in that view of the matter they cannot be treated on equal footing to Muslims or Hindus in the matter of bequeathing property for religious or charitable purposes. The respondent contends that marriage succession and like matters of secular character cannot be brought within the guarantee enshrined under articles 25, 26 and 27 of the Constitution of India.

Whether there should be Uniform Civil Code for all religions.

The Indian Succession Act came into effect on 30th September, 1925. As per section 4, Part II of the Act shall not apply if the deceased was a Hindu, Mohammedan, Buddhist, Sikh or Jain. Section 20 of Part III of the Act is not applicable to any marriage contracted before the first day of January, 1866; and is not applicable and is deemed never to have applied to any marriage, one or both of the parties to which professed at the time of marriage the Hindu Muhammadan, Buddhist, Sikh or Jain religion. As per section 23 of Part IV of the Act, that part shall not apply to any Will made or in testacy occurring before the first day of January, 1866 or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi. Likewise, as per section 29 of Part V of the Act, that shall not apply to any intestacy occurring before the first day of January, 1866 or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jain. By Act 51 of 1991. Parsis 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 religious 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. A substantive restriction is imposed based on uncertain events over which the testator has no control. I therefore, have no hesitation to hold that section 118 of the Act regarding religious and charitable bequests of all testators who are similar should be subjected to the same procedure. As the law stands today, a Christian cannot make a bequest for religious or charitable purposes without satisfying the conditions and procedures prescribed by section 118 of the Act. Such a burden, procedural burden and substantive law burden is not falling upon Hindu, Muhammadan, Jain or Parsi Testators.

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