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The Indian Succession Act came into effect on 30th
September, 1925. As per S. 4, Part II of the Act shall not apply
if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or
Jaina. 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 S. 23 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, Jain or Parsi. Likewise, as per S. 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 Jaina. By Act 51 of
1991, Parsis were also excluded from the application of S. 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 S. 118 of the Act regarding religious
and charitable bequests of all testators who are similar should
25
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 S. 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. …
It is pertinent to notice that the judgment of the Kerala
High Court was not appealed against by the respondent
herein, namely, the Union of India. Even after the judgment of
the Kerala High Court dated 16.10.1998, the Parliament did
not remove the 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 Arts.
14, 15, 25 and 26 of the Constitution. For the foregoing
reasons, I am respectfully in agreement with My Lord Hon'ble
the Chief Justice of India that S. 118 of the Act is
unconstitutional and is liable to be struck down as
unconstitutional. …

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