Supreme Court of India

JOHN VALLAMATTOM AND ANR.versusUNION OF INDIA

Citation: 2003 INSC 322
Decided: 21 July 2003
Disposal: Case Allowed
Bench: V N KHARE

Holding

Section 118 of the Indian Succession Act is unconstitutional as it arbitrarily discriminates against Christians and violates Articles 14, 15, 25 and 26 of the Constitution.

Summary

The petitioners, two Christians, challenged Section 118 of the Indian Succession Act, 1925 which barred Christians from bequeathing property for religious or charitable purposes unless a will was executed at least twelve months before death and deposited as prescribed. They argued that the provision discriminated against Christians compared to other religions and violated Articles 14, 15, 25 and 26 of the Constitution. The Court examined the historical origin of the provision, its classification of testators, and the lack of any rational nexus between the restriction and its purported purpose of preventing death‑bed bequests. It held that the provision was arbitrary, discriminatory and had no reasonable basis, thereby contravening the equality clause and religious‑freedom guarantees. Consequently, Section 118 was declared unconstitutional and the writ petition was allowed.

Issues considered

The constitutionality of Section 118 of the Indian Succession Act, 1925
Whether Section 118 violates Article 14 (equality before law) of the Constitution
Whether Section 118 infringes Articles 15, 25 and 26 (non‑discrimination and religious freedom)
Whether a pre‑Constitution enactment can be sustained under Articles 13 and 372
Whether the classification of Christians for this restriction is reasonable and has a rational nexus to the legislative objective

Legislation cited

Constitution of Indias. Art.13, s. Art.14, s. Art.15, s. Art.25, s. Art.26, s. Art.372, s. Art.44
Indian Succession Act, 1925s. Sec.118, s. Sec.51, s. Sec.58, s. Sec.59, s. Sec.63
Transfer of Property Act, 1882s. Sec.18

Subjects

constitutional lawequality before lawreligious discriminationcharitable bequestsIndian Succession ActSection 118pre‑Constitution legislationArticle 14Article 25Article 26Christian community

Judgment

A JOHN VALLAMATTOM AND ANR.
v.
UNION OF INDIA

JULY 21, 2003

B [V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]

Constitution of India, 1950; Articles 13, 14, 15, 25, 26, 51 and 3721
Indian Succession Act, 1925; Section 118:

c Testamentary disposition of property by Christians-Restriction to
bequest property to religious or charitable uses-Constitutionality of-Held:
Though restrictions prevent testator from making ill considered death-bed
bequest under religious influence but restrictions are arbitrary/unreasonable
as it restricts only the Christians in bequeathing property for charitable
D purposes-Bequeathing of property for charitable/religious purpose only if
the testator has a wife but having no nephew/niece or the testator survives
for 12 months after execution of the Will-Interpretive changes of the statute
effected by passage of time-Such restrictions are unreasonable/arbitrary/
discriminatory-Hence, violative of Article 14 of the Constitution of Jndia-
Charitable Uses Act, 1935-Mortmain and Charitable Uses Act, 1858-
E Charities Act, 1960-/ndian Succession Act, 1865.

Words and Phrases:

'Testamentary disposition ofproperty', 'bequest', 'death-bed disposition',
'philanthropic act', 'suspect legislation '-Meaning of
F
Petitioners are members of the Christian community aggrieved by the
discriminatory treatment meted out to them in India under the Indian
Succession Act. They were prevented from bequeathing property for
religious and charitable purposes under Section 118 of the Act. Hence the
G present Writ Petition.

It was contended for the petitioners that the impugned provision
was violative of Articles 14 and 15 of the Constitution of India as it
discriminates against a Christian vis-a-vis non-Christian, against
testamentary disposition by a Christian vis-a-vis non-testamentary disposition,
H 638
JOHN VALLAMATTOM v. U.0.1. 639
against religious and charitable use of property vis-a-vis all other uses A
including not so desirable purposes, a (:hristian who has a nephew, niece or
nearest relative vis-a-vis Christian who has no relative at all against a
Christian who dies within twelve months of execution of the will of which he
has no control; that since the impugned provision owes its origin to the Statute
of Mortmain which was repealed in England, it could not be retained in the
Indian Statute Book particularly when it does not conform to the provisions B
contained in Part III of the Constitution of India; that since petitioners are
citizens of India, they have right to effectuate their wishes according to their
discretion with freedom to choose legatee under the will for the purpose of
bequest; that the impugned provision is violative of Article I of the Vienna
Declaration in the World Conference on Human Rights; and that contribution C
for religious and charitable purpose is an essential and integral part of
Christian Religious Faith; and that the impugned provision violates Articles
25 and 26 of the Constitution of India.

On behalf of the respondent, it was submitted that since the Indian
Succession Act - a pre-Constitution enactment having regard to Article D
372 of the Constitution, continues to be in force within the territory of
India; that the Indian Parliament is not bound by the legislative changes
in any foreign country; that since Indian Christians form a separate class
distinct from other communities in India, they could not be treated equally;
and that the secular matters like succession/marriage could not be brought E
within the guarantee enshrined under Articles 25, 26 and 27 of the
Constitution of India.

Allowing the Petition, the Court

HELD: Per Khare, CJ: I.I. The history of Section 118 of the Indian F
Succession Act can be traced to an ancient British statute known as
Charitable Uses Act, 1735. The Act was repealed by Mortmain and
Charitable Uses Act, 1888. The statute of Mortmain created severe
restrictions on assurance of land for charitable purposes, it provided
exemption in respect of assurance of land of any quantity for a public park,
museum, universities, colleges or to any local authority. While borrowing G
the restrictive clauses for Mort main Statute at the time of enacting Section
118 of the Act, the Indian Legislature omitted to include the exemptions in
favour of the various charitable uses as provided in the Mortmain and
Charitable Uses Act. The consequence is that as per the impugned provision
the testamentary disposition of property in relation to all forms of religious H
640 SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A and charitable purposes is subject to the same restriction as contained in
Section 118 of the Indian Succession Act. 1647-B-C, H; 648-A-BI

1.2. Clause 1 of Article 13 of the Constitution of India in no uncertain
terms states that all laws in force in the territory of India immediately
before the commencement of the Constitution, in so far as they are
B inconsistent with the provisions of Part Ill of the Constitution, shall, t11
the extent of such inconsistency, be void. Keeping in view the fact that
the Indian Succession Act is a pre-Constitution enactment, the question
as regards its constitutionality will have to be judged as being law in force
at the commencement of the Constitution of India. By reason of clause 1
C of Article 13 of the Constitution of India, in the event, it be held that the
provision is unconstitutional the same having regard to the prospective
nature would be void only with effect from the commencement of the
Constitution. Article 372 of the Constitution of India per force does not
make a pre-constitution statutory provision to be constitutional. It merely
makes a provision for the applicability and enforceability of pre-
D constitution laws subject to the provisions of the Constitution and until
they are altered, repealed or amended by a competent legislature or other
competent authorities. (651-B-DI

Keshvan Madhava Menon v. The State of Bombay, 119511 SCR 228,
relied on.
E
1.3. 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
F to dispose of his property in a particular manner which would take effect
upon or after his death. 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 way of will. The Indian Succession Act confers such a right
upon all persons'irrespective of caste, creed or religion he belongs to. Section
118 of the Act imposes a restriction only on the Indian Christians. The said
G restriction is not applicable to the citizens belonging to other religions
including Parsis.1651-G-H; 652-A, q

1.4. 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 onl}' in the event the testator has a nephew or a niece or
H any nearer relative. Indisputably, a wife of a testator, in terms of definition as
JOHN VALLAMATTOM v. U.0.1. 641

contained in Section 28 read with the First Schedule of the Act would not be A
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.1652-D-F]

-
.• 1
1.5. A charitable disposition of property for the benefit of the public in
the advancement of religion, knowledge, commerce, health, safety, or any other
object beneficial to the mankind has specifically been acknowledged not only
in different religious texts but also in different statutes. The Indian Succession
B

Act does not define as to what would be a charitable disposition, but the
transfers to which it refers are the same as those described in Section 92 C
CPC as trusts created for public purposes of a charitable or religious nature.
It is really baffling that no protection has been given to the near relatives
against death-bed gifts for non-religious or charitable purpose. Furthermore,
there is no restrictive provision with regard to gift intervivos. It is really
strange as to how a statute may permit death-bed gifts to any other person for
any purpose whatsoever including illegal or immoral purposes but restriction D
has been imposed on testamentary disposition for religious or charitable uses.
1652-F-H; 653-A-B]

1.6. Assuming 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. E
As the 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. (653-E-F] F
1.7. 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. Besides, G
the period of duration of life of a testator has no relation with the purpose of
will, there is 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. Hence, the period of twelve months has no nexus with the object of
H
642 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A performing a philanthropic act. Thus, the impugned provision is violative of
Article 14 of the Constitution.1653-G-H; 654-AI

1.8. Once it is held that the underlying purpose for enacting the
provision was merely to thwart intluence exercised by people professing
religion resulting in death-bed disposition, having regard to the fact that
B such a contingency has adequately been taken care of in terms of Section
51 of the Act, the purport and Gbject of the Act must be held to be non-existent.
It may be true that the Indian parliament is not bound to take note of and
amend its statutory enactments keeping i11 view the amendments made in
England. But there cannot be any doubt whatsoever that while interpreting a
C restrictive statute, one may consider not only the past history of the concerned
legislation but the manner in which the same has been dealt with by the
legislature of its origin. A right of transfer of land indisputably is incidental
to the right of ownership and must be construed strictly. The constitutionality
of a provision, it is trite, will have to be judged keeping in view the interpretive
changes of the statute effected by passage of time. Hence Section 118 of the
D Act being unreasonable is arbitrary and discriminatory and, therefore,
violative of Article 14 of the Constitution. 1654-C-E, Fl

Mis. DLF Qutab Enclave Complex Educational Charitable Trust v. State
ofHaryana and Ors., 120031 2 SCALE 145 and Kapila Hingorani v. State of
Bihar, 120031 4 SCALE 712, relied on.
E
2. It is trite that having regard to Article 13(1) of the Constitution,
the constitutionality of the impugned legislation is required to be
considered on the basis of laws existing as on 26th .January, 1950, but while
doing so the Court is not precluded from taking into consideration the
F subsequent events which have taken place thereafter. It is further trite
that the law although may be constitutional when enacted but with passage
of time the same may be held to be unconstitutional in view of the changed
situation. In view of the matter even if a provision was not unconstitutional
on the day on which it was enacted or the Constitution came into force,
by reason of facts emerging out thereafter, the same may i>e rendered
G unconstitutional. The world has witnessed a sea-change. This Court, therefore,
while considering the constitutionality of Section 118 of the Act, is entitled
to take those facts also into consideration. Though a restriction to make
testamentary disposition of the property to some extent is prevalent under
the Mohammedan law but therein the purpose is to protect the near relation
H which cannot be said to be the sole purpose underlying Section 118 of the
JOHN VALLAMATTOM v. U.0.1. 643

Act. 1655-F; 656-B-EI A
Clarence Pais and Ors. v. Union of India, JT (2001) 3 SC 82, referred
to.

3.1. In the instant case, this Court is not concerned with the right of
a person to freedom of conscience but is only concerned with a question B
as to whether by reason of Section 118 of the Act the right of Christians
to profess, practise and propagate religion is violated. 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 worships. Disposition of property C
for religious and charitable purpose is recommended in all the religions
but the same cannot be said to be an integral part of it. Article 25 merely
protects the freedom to practise rituals and ceremonies etc. which are only
the integral parts of the religion. Article 25 of the Constitution of India
would not have any application and so Article 26 may also not have any
application in the instant case. 1657-C-E, G; 658-A) D
Stainislaus Rev. v. State ofM.P., AIR (1975) MP 163, relied on.

3.2. The two provisions viz. Articles 25 and 44 of the Constitution of
India show that the former guarantees religi!>us freedom whereas the latter
divests religion from socia.l relations and personal law. It is no matter of doubt E
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 matters
of secular character within the ambit of Articles 25 and 26 is a suspect
legislation. [658-C-E)
F
Smt. Sar/a Mudgal, President, Kalyani and Ors. v. Union of India and
Ors,. ll 995) 3 SCC 635, relied on.

Per Sinha, J. (Supplementing):

I. I. Message of charity and compassion is to be found in all religions G
without any exception. Only because charity and compassion are preached
in every religion, the same by itself would not be a part of the 'religious
practice' within the meaning of Article 25 of the Constitution of India. Thus
the Religion of Christianity encouraging the Christians to practise charities
to attain spiritual salvation is of not mucli relevance for this purpose.
H
644 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A Renouncement of world by a person following any religion is necessarily not
the essential practice of the religion which is meant for commonness. Such
preachings for renouncement from the world have no co-relation with the
tenets of Article 25 of the Constitution of India. (658-H; 659-A, B, GI

Lily Thomas and Ors. v. Union of India and Ors., (20001 6 SCC 224,
B referred to.

English Dictionary by Crillins, referred to.

1.2. The impugned provision was enacted to prevent person from making
ill-considered death bequest under religious influence. The object behind the
C said legislation was to protect a section of illiterate or semi-literate persons
who used to blindly follow the preachers of the religion. Such a purpose has
lost all its significance with the passage of time and, therefore, has to be
declared ultra vires Article 14 of the Constitution oflndia. (659-H; 660-AJ

Per Dr. AR. Lakshmanan, J (Supplementing):
D
I.I. The harsh and rigorous procedure envisaged under Section 118 of
the Indian Succession Act in relation to testamentary disposition of property
for religious and charitable use does not apply to members of Hindu,
Mohammadan, Buddhist, Sikh or Jain Community by virtue of Section 58 of
E 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. There is no justification in retaining the impugned provision in the
F statute book, which is arbitrary and violative of Article 14 of the Constitution,
since the Mortmain Statutes were repealed by the Charities Act, and by that
the very basis and foundation of the impugned provision has become non-
existent. The impugned provisions are also violative of Articles 25 and 26 of
the Constitution inasmuch as it is an essential and integral part of Christian
G religious faith to give property for religious and charitable purposes. The
impugned provision defeats object of the will and is harsh, unjust and arbitrary.
1661-B-FJ

1.2. The classification between testators who belong to Christian
community and those belonging to other religions is extremely unreasonable.
H All the testators who bequeath property for religious and charitable purpose
.JOHN VALLAMATTOM v. U.O.I. 645
belong to the same category irrespective of their religious identity and so the A
impugned provision, which discriminates between the members of one
commun~ty as against another, amounts to violation of Article 14 of the
Constitution. There is no rationale behind limiting the survival of testator to
a period of 12 months in order to give effect to his wishes. There is no rationale
in the classification between a testator who survives beyond 12 months and a B
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. There is no logic behind
fixing 12 months' period, and the testators who constitute a homogenous class
cannot be decided arbitrarily on the basis of the duration of their survival
which is unrelated to the purpose of executing a will. Since fixation of such
a period has no nexus with the object of performing a philanthropic act, the C
impugned provision is liable to be declared void as violative of Article 14 of
the Constitution. (661-H; 662-A-q

1.3. The first part of Article 14 of the Constitution of India is a
declaration of equality of civil rights for all purposes within the territory of
India and basic principles of republicanism and there will be no D
discrimination. The guarantee of equal protection embraces the entire realm
of 'State action'. It would extend not only when an individual is discriminated
against in the matter of exercise of his right or in the matter of imposing
liabilities upon him, but also in the matter of granting privileges etc. In all
these cases, the principle is the same, namely, that there should be no
discrimination between one person and another if as regards the subject- E
matter of the legislation their position is the same. All persons of similar
circumstances shall be treated alike both in privileges and liabilities imposed.
The classification should not be arbitrary; it should be reasonable and i.'. must
be based on qualities and characteristics and not any other who are left out,
and those qualities or characteristics must have reasonable relation to the F
object of the legislation. [662-D-F]

D.S. Nakara v. Union of India, [1983[ I SCC 305, relied on.

1.4. The contribution for religious and charitable purposes is a
philanthropic act intended to serve humanity at large and is also recognized
as a religious obligation. Therefore, bequeathing property for religious and G
charitable purposes cannot be controlled or restricted by the Legislature as
it would offend the fundamental rights of the testator under Articles 25 and
26 of the Constitution. Hence, the impugned provision is arbitrary and
unconstitutional. It is also violative of Article 26 of the Constitution inasmuch
as it is an essential and integral part of Christian religious faith to give H
646 SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A property for religious and charitable purposes. Every Christian shall have
the right to establish and maintain institutions for religious and charitable
purposes, manage its own affairs, own and acquire movable and immovable
properties and to administer such property in accordance with law. 1663-D-EI

1.5. There cannot be any unusual burden on Christian testators alone
B when all other testators making similar bequests for similar charities and
similar religious purposes are not subjected to such procedure. Therefore,
Section 118 of the Act is anomalous, discriminatory and violative of Articles
14, 15, 25 and 26 of the Constitution and should be struck down. 1663-G I
1.6. A substantive restriction is imposed based on uncertain events over
C which the testator has no control. Thus, Section 118 of the Act regarding
religious and charitable bequests of all testators who are similar should be
subjected to the same procedure. It is pertinent to notice that the judgment of
the Kerala High Court was not appealed against by the Union of India, in the
case of Preman v. Union ofIndia*. However, even then the Parliament did. not
D remove the discrimination. Under such circumstances, this Court, in exercise
of its jurisdiction and to remedy violation of fundamental rights, is bound to
declare the impugned provision as invalid and being violative of Articles 14,
15, 25 and 26 of the Constitution. Hence Section 118 of the Act is
unconstitutional and is liable to be struck down as unconstitutional.
(664-E; 665-C-DI
E
*Preman v. Union of India, (1998) 2KLT1004, approved.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 242of1997.
(Under Article 32 of the Constitution of India).

F Romy Chacko and Ms. V. Mohana for the Petitioners
P.P. Malhotra, Ms. Anjani Aiyagari, S.N. Terdol and B.K. Prasad for the
Respondent.
The Judgment of the Court was delivered by
G V.N. KHARE, CJ. 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
H to the religious denomination of Roman Catholics. The second petitioner is
JOHN VALLAMATTOM v. U.0.1. lV.N. KHARE, Cl] 647

also a member of the Christian community. The petitioners are aggrieved by A
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 B
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 C
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, devise, bequest and every D
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 bo~nefit of any
charitable but unless the recipient charity was authorized 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 E
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 , period
of twelve months before two witnesses and enrolled in Chancery within six F
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.
G
Even though the statute of Mortmain created severe restrictions on
assurance of land for charitable purposes, it provided exemption in respect
of assurance of land of any quantity for a public park, museum, universities,
colleges or to any local authority, assurance by Will not exceeding 20 a(;res
for a public park or two acres for a museum, etc. In this respect it is relevant H
648 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A to mention that while borrowing the restrictive clauses for Mortmain Statute
at the time of enacting Section 118 of Indian Succession Act, the Indian
Legislature omitted to include the exemptions in favour of the vario•.1s charitable
uses as provided in the Mortmain and Charitable Uses Act, 1888. The
consequence is that as per the impugned provision the testamentary disposition
B of property in relation to all forms of religious and charitable purposes is
subject to the same restriction as contained in Section 118 of the Act.

Ultimately, on account of the harshness and unreasonableness of
Mortmain Statutes, the same were repealed by the British Parliament by an
Act known as Charities Act, 1960. The consequential provision of repeal is
C provided hereunder:

"No right or title to any property shall be defeated or impugned and
no assurance or disposition of property shall be treated as void or
voidable, by virtue of any of the enactment relating to mortmain on
29th July, 1960 the possession was in accordance with that right or
D title or with assurance or disposition and no step has been taken to
assert a claim by virtue of any such enactment."

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 on the State Government to exempt any race, sect or
E 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
F a minor may dispose of his property by Will. Chapter VII of the Act deals
with void bequests.

Section i 18 is contained in the said chapter which reads as follows :

"Sec. 118. Bequest to religious or charitable uses - No man having a
nephew or niece or any nearer relative shall have power to bequeath
G any property to religious or charitable uses, except by a will executed
not less than twelve months before his death, and deposited within
six months from its execution in some place provided by law for the
safe custody of the will of living persons."

The said provision, thus, postulates that a person having a nephew or
H
JOHN VALLAMA TTOM v. U.0.1. [V.N. KHARE, CJ.] 649
niece or any nearer relative cannot bequeath his property for religious or A
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 B
religious or charitable uses, the application of this section is attracted despite
the fact that the bequest may be for only a part o..- 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 C
Section 28 read with Schedule 1 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 D
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 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 E
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 F
Articles 14 and 15 of the Constitution of India inasmuch as it :

(a) discriminates against a Christian vis-a-vis non-Christians;
(b) discriminates against testamentary disposition by a Christian vis-
a-vis non-testamentary disposition; G
(c) discriminates against religious and charitable use of property vis-
a-vis all other uses including not so desirable purposes;

(d) discriminates against a Christian who has a nephew, niece or
nearest relative vis-a-vis Christian who has no relative at all; and
H
650 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A (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
B well as the purpose of bequest.

It was also submitted that the said provision is violative of Article I 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.
c
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 purpose 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
D 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
E 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
F 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.

Before proceeding further I may notice that a Division Bench of the
Kerala High Court in Preman v. Union of India, (1998) 2 KL T I 004 held the
G said provision to be unconstitutional. A special leave petition filed there
against by a private party was, however, dismissed by a Bench of which I
myself as I then was, a party stating :-

"Permission to file SLP is granted.
Delay condoned.
H
.JOHN VALLAMATTOM v. U.O L (V.N. KHARE, CJ.] 651
We find that the Special Leave Petitions are at premature stage. A
Whatever grievance the petitioner may have, may be agitated in the
hierarchy of proceedings in petitioner's appeal. The Special Leave
Petitions are dismissed."

it is neither in doubt nor in dispute that clause 1 of Article 13 of the
Constitution of India in no uncertain terms states that all laws in force in the B
territory of India immediately before the commencement of the Constitution,
in so far as they are inconsistent with the provisio•-> o~ ?art Ill there, shall,
to the extent of such inconsistency, be void. Keeping in view the fact that
the Act is a pre-constitution enactment, the question as regards its
constitutionality will, therefore, have to be judged as being law in force at the C
commencement of the Constitution of India [See Keshavan Madhava Menon
v. The State of Bombay, (1951] SCR 228. By reason of clause 1 of Article 13
of the Constitution of India, in the event, it be held that the provision is
unconstitutional the same having regard to the prospective nature would be
void only with effect from the commencement of the Constitution. Article
372 of the Constitution of India per force does not make a pre-constitution D
statutory provision to be constitutional. It merely makes a provision for the
applicability and enforceability of pre-constitution laws subject of course to
the provisions of the Constitution and until they are altered, repealed or
amended by a competent legislature or other competent authorities.

The equality clause enshrined in Article 14 of the Constitution of India E
is of wide import. It guarantees equality before the law or the equal protection
of the laws within the territory of India. The restriction imposed by reason
of a statute, however, can be upheld in the event it be held that the person
to whom the same applies, forms a separate and distinct class and such
classification is a reasonable one based on intelligible differentia having nexus F
with the object sought to be achieved.

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 G
his property in a particular manner which would take effect upon or after his
death.

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.
H
652 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 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.
B 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.
c 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 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.
D
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
E in the event 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
p precluded from doing so in the event he has a nephew or a niece.

Furthermore, a charitable disposition of property for the benefit of the
public in the advancement of religion, knowledge, commerce, health, safety,
or any other object beneficial to the mankind has specifically been
acknowledged not only in different religious texts but also in different statutes.
G Section 18 of the Transfer of Property Act, 1882 states that restrictions in
Sections 14, 16 and 17 shall not apply in the case of a transfer of property
for the benefit of public in the advancement ofreligion, knowledge, commerce,
health, safety, or any other object beneficial to mankind. The Indian Succession
Act does not define as to what would be a charitable disposition, but the
H transfers to which it refers are the same as those described in Section 92 of
JOHN VALLA MA TTOM v. U.0.1. [V.N. KHARE. Cl] 653
the Code of Civil Procedure, 1908, as trusts created for a public purposes of A
a charitable or religious nature. The illustration appended to the impugned
provision gives a list of bequests for religious or charitable uses which is of
wide import. It is really baffling that no protection has been given to the near
relatives against death-bed gifts for non-religious or charitable purpose.
Furthermore, there is no restrictive provision with regard to gift intervivos. It B
is really strange as to how a statute may pennit death-bed gifts to any other
person for any purpose whatsoever including illegal or immoral purposes but
restriction has been imposed on testamentary disposition for religious or
charitable uses.

It may be seen that as per Section 118 of the Act bequest of property C
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 D
matter, such a provision is unreasonable and arbitrary.

The matter may be examined from another angle. Assuming 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 E
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 F
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 G
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 H
654 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A with the object of performing a philanthropic act. Thus, the impugned provision
is violative of Article 14 of the Constitution.

The provision relating to making of testamentary disposition by the
citizens of India vis-a-vis those professing the religion of Christian must be
judged on the touch-stone of Article 14 of the Constitution of India. It is true
B that they form a class by themselves but ex facie I do not find any justifiable
reason to hold that the classification made is either based on intelligible
differentia or the same has any nexus with the object sought to he achieved.
In fact, the respondent have failed to show that there exists any such object.
Once it is held that the underlying purpose for enacting the said provision
C was merely to thwart influence exercised by people professing religion
resulting in death-bed dispm.ition, having regard to the fact that such a
contingency has adequately been taken care of in terms of Section 51 of the
Act, the purport and object of the Act must be held to be non-existent. It may
be true that the Indian Parliament is not bound to take note of and amend its
statutory enactments keeping in view the amendments made in England. But
D there cannot be any doubt whatsoever that while interpreting a restrictive
statute, one may consider not only the past history of the concerned legislation
but the manner in which the same has been dealt with by the legislature of
its origin. A right of transfer of land indisputably is incidental to the right of
ownership and must be construed strictly. [See Mis. DLF Qutab Enclave
E Complex Educational Charitable Trust v. State of Haryana and Ors., (2003)
2 SCALE 145). The constitutionality of a provision, it is trite, will have to be
judged keeping in view the interpretive changes of the statute effected by
passage of time. [See Kapila Hingorani v. State of Bihar, (2003) 4 SCALE
712.

p For the aforesaid reasons, I find that Section 118 of the Act being
unreasonable is arbitrary and discriminatory and, therefore, violative of Article
14 of the Constitution.

Furthermore, India being a signatory to the Declaration on the Right to
Development adopted by the World Conference on Human Rights and Article
G 18 of the United Nations Covenant on Civil and Political Rights, 1966, the
impugned provision may be judged on the basis thereof. Article I of the
aforementioned declaration reads thus :-

"The right to development is an inalienable human right by virtue of
which every human person and all people are entitled to participate
H in, contribute to, and enjoy economic, social, cultural and political
JOHN VALLAMATTOM v. U.0.1. [V.N. KHARE. CJ.] 655
development, in which all human rights and fundamental freedom can A
be fully realized.

The human right to development also implies the full realization of the
right of people to self determination, which includes subject to the
relevant provisions of both International Covenants on Human Rights,
the exercise of their inalienable right to full sovereignty over all their B
natural wealth and resources."

Article 18 of the United Nations Covenant on Civil and Political Rights
1966 provides as follows :

"Everyone shall have the right to freedom of thought, conscience and C
religion. This right shall include freedo~ to have or adopt a religion
or belief of his choice, and freedom, either individually or in
community with others and in public or private, to manifest his religion
or belief or belief in worship, observance, practice and teaching.

Freedom to manifest ones own religion or beliefs may be subject D
only to such limitations as are prescribed by law and are necessary
to protect public safety, order, health, or morals or the fundamental
rights and freedom of others."

The impugned provision must, therefore, also be judged having regard
to the aforementioned treaties and covenants. [See Kapi/a Hingorani (supra) E
at para 47].

It is trite that having regard to Article 13(1) of the Constitution, the
constitutionality of the impugned legislation is required to be considered on
the basis of laws existing on 26th January 1950, but while doing so the court
is not precluded from taking into consideration the subsequent events which F
have taken place thereafter. It is further trite that the law although may be
constitutional when enacted but with passage of time the same may be held
to be unconstitutional in view of the changed situation.

Justice Cardoze said :
G
"The law has its epochs of ebb and flow, the flood tides are on us.
The old order may change yielding place to new; but the transition
is never an easy process". Albert Campus stated :

"The wheel turns, history changes". Stability and change are the two
H
656 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A sides of the same law-coin. In their pure form they are antagonistic
poles; without stability the law becomes not a chart of conduct, but
a gare of chance: with only stability the law is as the still waters in
which there is only stagnation and death."

In any view of the matter even if a provision was not unconstitutional
B on the day on which it was enacted or the Constitution came into force, by
reason of facts emerging out thereafter, the same may be rendered
unconstitutional. The world has witnessed a sea-change. The right of equality
of women vis-a-vis their male counterp'rt is accepted worldwide. It will be
immoral to discriminate a woman on the ground of sex. It is forbidden both
C in our domestic law as also international law. Even right of women to derive
interest in a property by way of inheritance, gift or bequeath is statutorily
accepted by reason of Hindu Succession Act, 1956 and other enactments.
This Court, therefore, while considering constitutionality of Section 118 of
the Indian Succession Act, is entitled to take those facts also into consideration.

D I, however, am aot oblivious of the fact that a restriction to make
testamentary disposition of the property to some extent is prevalent under the
Mohammedan law but therein the purpose is to protect the near relation
which cannot be said to be the sole purpose underlying Section 118 of the
Act.

E I may notice that the a Division Bench of this Court in Clarence Pais
and Ors. v. Union of India, JT (2001) 3 SC 82 while considering the
constitutionality of the provisions of Section 213 of the Indian Succession
Act did not consider the applicability of various decisions cited before it
including Preman (supra) on the ground that the said provision applies to
F Christians as also non-Christians stating:

"..... However, in the light of the above conclusion, it is unnecessary
to refer to those decisions though some of them may have bearing in
analyzing and understanding the scope of the provisions which are
made applicable exclusively to Christians as it happened in the case
of Section 118 of the Act or in the case of the Indian Divorce Act.
G
Therefore, we have not adverted to any one of these provisions. If
Christians alone had been discriminated against by treating them as
a separate class, we think the argument could have been understood
and merited consideration."

H So far as the second argument of learned counsel for the petitioner is
JOHN VA LLAMA TTOM v. U.O.l. (V.N. KHARE, CJ.] 657
concerned, it is suffice to say that Article 15 of the Constitution of India may A
not have any application in the instant case as the discrimination forbidden
thereby is only such discrimination as is based, inter alia, on the ground that
a person belongs to a particular religion. The said right conferred by clause
I of Article 15 being only on a 'citizen', the same is an individual right by
way of a guarantee which may not be subjected to discrimination in the matter B
of rights, privileges and immunities pertaining to him as a citizen. In other
words, the right conferred by Article 15 is personal. A statute, which restricts
a right of a class of citizens in the matter of testamentary disposition who may
belong to a particular religion, would, therefore, not attract the wrath of clause
1 of Article 15 of the Constitution of India.

Coming to the last argument raised by the petitioners' counsel it may
c
be stated that in the instant case, this Court is not concerned with the right
of a person to freedom of conscience but is only concerned with a question
as to whether by reason of Section 118 of the Indian Succession Act the right
of Christians to profess, practise and propagate religion is violated. Article 25
is subject to the other provisions contained in Part III of the Constitution of D
India. 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 E
to give it expression in forms of private and public worships [See Stainislaus
Rev. v. State of MP., AIR (1975) MP 163. 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
•1
or religious purpose compulsory or the same is regarded as such by the F
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.

Disposition of property for religious and charitable purpose is
recommended in all the religions.but the same cannot be said to be an integral G
part of it. 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 hy the persons professing a
particular religion may not have anything to do with the religion itself.
H
658 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A Article 25 merely protects the freedom to practise 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. ._
I

For the self-same reasons, Article 26 may also not have any application
B in the instant case.
Before I part with the case, I would like to state th~t 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
C 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
D 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 matters of secular
character within the ambit of Articles 25 and 26 is a suspect legislation.
Although it is doubtful whether the American doctrine of suspect legislation.
E is followed in this country. In Smt. Sar/a Mudgal, President, Kalyani and
Ors. v. Union ofIndia and Ors., [1995] 3 SCC 635, it was held that marriage,
succession and like matters of secular character cannot be brought within the
guarantee enshrined under Articles 25 and 26 of the Constitution. It is a
matter of regret that Article 44 of the Constitution has not been given effect
F to. Parliament is still to step in for framing a common civil code in the
country. A common civil code will help the cause of national integration by
removing the contradictions based on ideologies.

For the reasons aforementioned, this writ petition is allowed and Section
118 of the Indian Succession Act is declared unconstitutional being violative
G of Article 14 of the Constitution of India. The parties shall, however, pay and
bear their own costs.

S.B. SINHA, J. While agreeing with the opinion of My Lord, the Chief
Justice of India, I would like to add only a few words. Message of charity
and compassion is to be found in all religions without any exception. Only
H because charity and compassion are preached in every religion, the same by
JOHN VALLAMA TTOM v. U.0.1. [S.B. SINHA, J.] 659

itself would not be a part of the 'religious practice' within the meaning of A
Article 25 of the Constitution of India.

Thus, the Religion of Christianity encouraging the Christians to practise
charities to attain spiritual salvation is of not much relevance for this purpose.
Such preachings are also found in Bhagavat Geeta and Upanishad.
B
In Collins English Dictionary, 'Christian' is defined as a person who
believes in and follows Jesus Christ.

Similarly, we may notice that this Court in Lily Thomas and Ors. v.
Union of India and Ors., [2000) 6 SCC 224 in relation to the religion of Islam
observed thus : C
"The word "Islam" means "peace and submission". In its religious
connotation it is understood as "submission to the will of God";
according to Fyzee (outlines of Mohammedan Law, 2nd Edn.), in its
secular sense, the establishment of peace. The word "Muslim" in
Arabic is the active principle of Islam, which means acceptance of D
faith, the noun of which is Islam."

The petitioners have quoted a passage purported to be from Chapter 19
of Gospel according to Luke. The Holy Bible published by Gideons does not
contain the said passage.
E
Assuming that the said preachings have found place in the Holy Bible,
the same ex facie would go to show that what was being preached is
renouncement.

Even if the said passage is taken to be correct, the same appears to be F
a person who had followed namely : Do not commit adultery; do not commit
murder; do not steal; do not accuse anyone falsely; respect your father and
your mother. That was an advice to a person.

Renouncement of world by a person following any religion is necessarily
not the essential practice of the religion which is meant for commonness. G
Gandhiji also said renouncement and enjoy.

Such preachings for renouncement from the world have no co-relation
with the tenets of Article 25 of the Constitution of India.

The impugned provision was enacted to prevent persons from making H
660 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A ill-considered death bequest under religious influence. The object behind the
said legislation was, therefore, to protect a section of illiter~te or semi-literate
persons who used to blindly follow the preachers of the religion. Such a
purpose has lost all significance with the passage of time and, therefore, has
to be declared ultra vires Article 14 of the Constitution of India.

B DR. AR. LAKSHMANAN, J. I have the benefit of going though the
detailed and elaborate judgment prepared by My Lord Hon'ble the Chief
Justice of India. I am respectfully in agreement with the same. However, I
would like to add few more paragraphs as to how the Christians are aggrieved
by the discriminatory treatment meted out to members of Christian community
C under the Indian Succession Act, I925 (hereinafter referred to as "the Act")
by which they are practically prevented from bequeathing property for religious
and charitable purposes. The impugned provision has already been extracted
in the judgment prepared by Hon'ble the Chief Justice of India. 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 (I) the
D Will is executed not less than I2 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 remain in deposit till the death of the testator. The
harsh and rigorous procedure envisaged under Section 118 of the Act in
relation to testamentary disposition of property for religious and charitable
E use does not apply to members of Hindu. Mohammadan, Buddhist Sikh or
Jain 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, Christian cannot bequest
property for religious or charitable use unless fresh will is executed on the
expiry of every 12 months, ifthe testator does not suffer from the misfortune
F of death within the statutory period of 12 months.
There is no restriction on Muhammadan on bequeathing property for
religious or charitable purposes. A Muhammadan can validly bequeath one
third of his net assets, when there are heirs. The only restriction as regards
the legator is that he should be of sound mind and he should not be a minor.
G As regards the legatee, it is stated that if the legatee causes the death of the
legator, the Will becomes void and ineffective. Under Mohammedan Law, a
Will can be lawfully made in favour of an individual, an institution, a non
Muslim, a minor and an insane. As regards the subject-matter any property
can form the subject of a Will, and both corpus and usufructs can be
H bequeathed.
JOHN VALLAMATTOM v. U.O.L [DR. AR. LAKSHMANAN. J.] 661

In the case of Hindus, the founding of a temple or a charitable institution A
is considered as an act of religious duty and has all the aspects of Dharma.

In my opinion, there is no justification in retaining the impugned
provision in the stature book, which is arbitrary and violative of Article 14
of the Constitution, since the mortmain statutes were repealed by the Charities
Act, 1960 and by that the very basis and foundation of the impugned provision B
has become non-existent. The impugned provision is also violative of Articles
25 and 26 of the Constitution in as much as it is an essential and integral part
of Christian religious faith to give property for religious and charitable purpose.
The teachings from the Holy Book of Bible also encourage Christian to
practice charities to attain spiritual salvation. Whenever fundamental right to C
freedom of conscience and to profess, practice and to propagate religion is
invoked, the petitioners, contend that the act complained of as offending the
fundamental right must be examined to dishonour whether such act is to
protect order, morality and health, whether it is to give effect to the other
provisions of Part Jil of the Constitution or whether it is authorised by a law
made to regulate or restrict any economic, financial, political or secular activity D
which may be associated with religious practice or to provide for social
welfare and reform. It is the duty and function of the Court so to do.

As per Section 118 of the Act, bequest of property for religious and
charitable use fails, if, for any reason, the testator does not suffer from the
misfortune of death within 12 months of execution of the Will or if it is not E
deposited in the place provided by law within 6 months, and that since as
per the impugned provision a testator who lives beyond the statutory period
of 12 months is not able to effectuate his wishes in relation to his property,
the impugned provision defeats object of the Will and is harsh, unju:;t and
arbitrary. In order to survive the challenge under Article 14 of the Constitution, F
it must be established that the classification arising out of the impugned
provision is reasonable and that it has a nexus with the object sought to be
achieved, and since in the instant case, the classification between bequests
for religious and charitable use and bequests for other purposes is
unreasonable and since it has no nexus with the object sought to be achieved,
the impugned provision is hit by Article 14 of the Constitution. The impugned G
provision is also attacked as discriminatory and violative of Articles 14 and
15 of the Constitution inasmuch as the restriction on bequest for religious and
charitable purpose is confined to Christians alone and not to members of
other communities. In my opinion, the classification between testators who
belong to Christian community and those belonging to other religion is H
662 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A extremely unreasonable. All the testators who bequeath property for religious
and charitable purpose belong to the same category irrespective of their
religious identity and so the impugned prt>vision, which discriminates between
the members of one community as against another, amounts to violation of
Article 14 of the Constitution. There is no rationale behind limiting the
survival of testator to a period of 12 months in ord'!r to give effects to his
B wishes. There is no rationale in the classification between a testator who
survives beyond 12 months and a testator who does not survive beyond the
same period in declaring the will of the former as void and that of latter is
valid. There is no logic behind fixing 12 months period, and the testators who
constitute a homogenous class cannot be decided arbitrarily on the basis of
C the duration of their survival which is unrelated to the purpose of executing
a will. Since fixation of such a period has no nexus with the object of
performing a philanthropic act, the impugned provision is attacked as liable
to be declared void as violative of Article 14 of the Constitution.

Article 14 of the Constitution states that the State shall not deny to any
D person equality before the law or the equal protection of the laws within the
territory of India. The first part of Article 14 of the Constitution of India is
a declaration of equality of civil rights for all purposes within the territory of
India and basic principles of republicanism and there will be no discrimination.
The guarantee of equal protection embraces the entire realm of 'State action'
E . It would extend not only when an individual is discriminated against in the
matter of exercise of his right or in the matter of imposing liabilities upon him,
but also in the matter of granting privileges etc. In all these cases, the
principle is the same, namely, that there should be no discrimination between
one person and another if as regards the subject-matter of the legislation their
position is the same. In my view, all persons of similar circumstances shall be
F treated alike both in privileges and liabilities imposed. The classification
should not be arbitrary; it should be reasonable and it must be based on
qualities and characteristics and not any other who are left out, and those
qualities or characteristics must have reasonable relations to the object of the
legislation.

G In the case of D.S. Nakara v. Union of India, [1983] I SSC 305, this
Court has observed thus:

"Thus the fundamental principle is that Article 14 forbids class
legislation but permits reasonable classification for the purpose of
legislation which classification must satisfy the twin tests of
H
JOHN VALLAMATTOM v. U.0.1. [DR. AR. LAKSHMANAN, J.] 663

classification being founded on an intelligible diferentia which A
distinguishes persons or things that the grouped together from those
that are left out of the group and that diffemtia must have a rational
nexus to the object sought to be achieved by the statute in question".

It has been also observed in the above judgment that in the very nature
of things, the society being composed of unequals a welfare State will have B
to strive by both executive and legislative action to help the less fortunate
in the society to ameliorate their condition so that the social and economic
unequality in the society may be bridged and in the absence of doctrine of
classification such legislation is likely to flounder on the bed rock of equality
enshrined in Article 14 of the Constitution.
c
Article 25 of the Constitution deals with freedom of conscience and the
right freely to profess, practice and propagate religion. The contribution for
religious and charitable purposes is a philanthropic act intended to serve
huminity at large and is also recognised as a religious obligation. Therefore,
bequeathing property for religious and charitable purposes cannot be controlled D
or restricted by the Legislature as it would offend the fundamental rights of
the testator under Articles 25 and 26 of the Constitution and therefore the
impugned provision is arbitrary and unconstitutional. It is also violative of
Article 26 of the Constitution inasmuch as it is an essential and integral part
of Christian religious faith to give property for religious and charitable
purposes. Every Christian shall have the right to establish and maintain E
institutions for religious and charitable purposes, manage its own affairs, own
and acquire movable and immovable properties and to administer such property
in accordance with law.

In my opinion, whether in an enactment religious bequests by a Christian F
is discriminatory and violative of Articles 14 and 15 of the Constitution must
be determined as per the rule of procedure laid down by Section 118 of the
Act, which comes within the purview of Articles 14 and 15 of the constitution,
and it is therefore, necessary that all testators who are similarly situated
should be subjected to the same rule of procedure. There cannot be any
unusual burden on Christian testators alone when all other testators making G
similar bequests for similar charities and similar religious purposes are not
subjected to such procedure. Therefore, in my opinion Section 118 of the Act
is anamolous discriminatory and violative of Articles 14, 15, 25 and 26 of the
Constitution and should be struck down.

The Indian Succession Act though is claimed to be a universal law of H
664 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A testamentary disposition, but in effect, crucial sections apply only to Christian.
There is no acceptable answer from the other side as to why Section 118 of
the Act is made applicable to Christians alone and not to others.

The Indian succession Act came into effect on 30th September, 1925.
B As per Section 4, Part II of the Act shall not apply if the deceased was a
Hindu, Muhammadan, Buddhist, Sikh or Jaina. Section 20 of Part IJI 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 Jaina religion. As per section 23
C of Part IV of the act, that part shall not apply to any Will made or intestacy
occurring before the first day of January, 1866 or to intestate or testamentary
succession to the property of any Hindu, Muhammadan, Buddhist, Sikh, Jaina
or Parsi. Likewise as per Section 29 of Part V of the Act that part 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 Jaina. By Act
D 51 of 1991, Parsis were also excluded from the application of Section 118 of
the Act. Thus, it is seen that the procedure 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
E 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
F 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.

The very same question was raised before the Kerala High Court. The
G Division Bench ofKerala High Court in the case of Preman v. Union of India
reported in 1998(2) KL T I004 to which I was a party, declared thus:

(a) discriminates against a Christian vis-a-vis non Christian;
(b) discriminates against testamentary disposition by a Christian vis-
a-vis non-testamentary disposition;
H
JOHN VALLAMA TTOM v. U.O.l. [DR. AR. LAKSHMANAN, J.] 665
(c) discriminates against religious and charitable use of property vis- A
a-vis all other uses including not so desirable purposes.

(d) discriminates against the Christian who has a nephew, niece, or
nearest relative vis-a-vis a Christian who has no relative at all;
and
(e) discriminates a Christian who dies within 12 months of execution B
of the Will, of which he has no control.
It is pertinent to notice that the judgment of the Kerala High
Court was not appealed against by the respondent therein, namely,
the Union of India. Even after the judgment of the Kerala High
Court dated 16.\0.1998, the Parliament did not remove the C
discrimination. Under such circumstances, this Court, in my
opinion, in exercise of its jurisdiction and to remedy violation of
fundamental rights, are bound to declare the impugned provision
as invalid and being violative of Articles 14, 15, 25, and 26 of the
Constitution. For the foregoing reason, I am respectfully in D
agreement with My Lord Hon 'ble the Chief Justice of India that
Section 118 of the Act is unconstitutional and is liable to be
struck down as unconstitutional.
In the result, the writ petition is allowed.

S.K.S. Petition allowed. E

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "constitutional law"Sign in to search