This letter addresses Shri Piyush Goyal, Minister of Commerce and Industry, regarding the discriminatory provisions in Sections 57 and 213 of the Indian Succession Act, 1925. These sections require Hindus, Buddhists, Sikhs, and Jains residing in Mumbai, Kolkata, and Chennai to obtain probate for wills, whereas citizens of other faiths or regions are exempt. The letter emphasizes the outdated, colonial nature of this rule, which imposes financial and procedural burdens, including high court fees and prolonged waiting periods. Additionally, it points out that the State of Kerala and the Indian Christians have been exempted from this requirement since 1997 and 2002, respectively. The writer argues that the law unfairly discriminates against certain citizens based on their religion and location and calls for either its repeal or suitable amendment. The letter highlights the financial and logistical difficulties faced by the affected communities and requests timely intervention before the upcoming Maharashtra Assembly elections to alleviate the hardship on voters, particularly in Mumbai, Kolkata, and Chennai.
Bhartiya Janta Party, Mumbai
Professional Cell
Date:02/10/2024
To
Shri Piyush Goyal
The Hon’ble Minister of Commerce and Industry
And Member of Parliament, Mumbai.
Email ID: [email protected]
Sub: Cancellation of or suitable amendment in Sections 57 and 213 of the Indian Succession Act, 1925, which makes mandatory to obtain Probate only to Hindus, Buddhists, Sikhs and Jains residing in Mumbai, Kolkata and Chennai.
AND
In the absence of a Probate, such Will is invalid.
Respected Sir,
1. It is to bring to your kind notice that the provisions of Sections 57 and 213 of the Indian Succession Act, 1925 was enacted pre-Independence of our country. For the sake of convenience, the provisions of Sections 57 and 213 of the Indian Succession Act, 1925 are reproduced as under:
“57. Application of certain provisions of Part to a class of wills made by Hindus, etc.
The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits, and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such will or codicil.”
“213. Right as executor or legatee when established.—
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by Muhammadans or Indian Christians, and shall only apply—
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the ordinary-original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.”
2. As per the above provisions, which stand today, it is mandatory to obtain a Probate of a Will executed by any Hindu, Buddhist, Sikh or Jain having property in the cities of Bombay, Calcutta and/or Madras. The said provisions exempt any person of any other religion. The Muslims were exempted from application of the said provisions of obtaining Probate due to their Muslim Personal Law.
3. The provisions of Section 3 of the Indian Succession Act, 1925 gives power to the State Government to exempt any race, sect or tribe in the State from operation of Section 213. For the sake of convenience, the provisions of Section 3 of the Indian Succession Act, 1925 are reproduced as under:
“3. Power of State Government to exempt any race, sect or tribe in the State from operation of Act.—
(1) The State Government may, by notification in the Official Gazette, either retrospectively from the sixteenth day of March, 1865, or prospectively, exempt from the operation of 2 any of the following provisions of this Act, namely, sections 5 to 49 , 58 to 191 , 212, 213 and 215 to 369, the members of any race, sect or tribe in the State, or of any part of such race, sect or tribe, to whom the State Government considers it impossible or inexpedient to apply such provisions or any of them mentioned in the order.
(2) The State Government may, by a like notification, revoke any such order, but not so that the revocation shall have retrospective effect.
(3) Persons exempted under this section or exempted from the operation of any of the provisions of the Indian Succession Act, 1865 (10 of 1865), under section 332 of that Act are in this Act referred to as “exempted persons”.”
4. Though none of the above three cities were in the State of Kerela, in the year 1997, the State of Kerala used the power under Section 3 of the Indian Succession Act, 1925 and by way of State Amendment, amended Section 213 and exempted the Indian Christians from its application.
5. In the year 2002, the then NDA Government amended the provisions of Section 213 of the Indian Succession Act, 1925 and exempted the Indian Christians from its application, following which the Indian Christians having properties in the said three cities were exempted from obtaining Probate of the Will. The said amendment was brought by the then Central Government by Act 26 of 2002 made effective from 27th May 2002.
6. The provisions of Sections 57 and 213 of the Indian Succession Act, 1925 apply to the properties situated in Mumbai, Kolkata and Chennai or in the event of the Testator having executed the Testament (Will) while within these cities, a Probate is mandatory, leaving aside the rest of the entire country. The said provisions are highly discriminatory between the citizens residing in these three cities on the one side and the citizens residing in the rest of the country. This can be explained by simple illustration as under:
It is not mandatory for a legal heir to obtain a Probate of a Will executed by their deceased parent in respect of an immovable property in a city of Thane (Maharashtra) whereas for a legal heir residing in Mulund, which falls within the boundaries of Mumbai city, the immediate neighbourhood of Thane city, it is mandatory to obtain a Probate of a Will from the Hon’ble Bombay High Court.
Due to application of these colonial provisions, it is mandatory only for any Hindu, Buddhist, Sikh or Jain residing or immovable property situate in these three cities to obtain a Probate of a Will, whereas it is optional for others elsewhere in the country. In the absence of a Probate, a Will executed by any Hindu, Buddhist, Sikh or Jain of Mumbai, Kolkata and Chennai expressing his/her last desire is not acceptable.
7. This colonial rule is causing great hardship and inconvenience to lakhs of citizens residing in these three cities. The cost of obtaining such Probate is too high, which includes a Court fee of Rs. 75,000/- and another few lakhs of rupees towards professional fees and other legal charges. The average timeframe of granting such Probate is more than one year. The removal of these illogical colonial provisions from the statute shall give huge relief to lakhs of citizens residing in these three cities.
8. In view of the aforesaid facts and circumstances, there is no logic or valid reason to keep such draconian colonial provisions on the Statute. We therefore humbly request you to look into the aforesaid matter and do the justice.
9. We strongly feel that if above deletion is done prior to the issuance of election notification to hold the Maharashtra Assembly elections, it shall be a gift to lakhs of Mumbaikar voters, which shall help our party in the coming elections not only in the city of Mumbai, but also in Kolkata and
Thanking you,
Yours truly,
(Shailesh R Ghedia)
President
M no: 9869437888
