Kerala High Court
Kurian @ Jacob vs Mrs.Chellamma John on 23 January, 2001
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR.JUSTICE DAMA SESHADRI NAIDU
THURSDAY, THE 28TH DAY OF SEPTEMBER 2017/6TH ASWINA, 1939
MFA.No. 41 of 2009 ( )
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AGAINST THE ORDER IN OS 3/1999 of ADDL.DISTRICT COURT, KOTTAYAM DATED
23-01-2001
APPELLANT/9TH DEFENDANT:
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KURIAN @ JACOB, KALARICKAL HOUSE,
MANGANAM KARA, VIJAYAPURAM VILLAGE,
KOTTAYAM DISTRICT.
BY ADVS.SRI.MATHEW JOHN (K)
SRI.BABY THOMAS
RESPONDENTS:
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1. MRS.CHELLAMMA JOHN, W/O LATE JOHN,
KALARICKAL HOUSE, MANGANAM KARA,
VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT. (DIED)
2. MRS.SELI MATHEN, W/O MATHEN PONNUR HOUSE,
ERAVIPEROOR, TIRUVALLA, PATHANAMTHITTA DIST.
3. MRS.JOLLY VARGHESE, W/O VARGHESE,
KOIKKALPARAMBIL, TIRUVALLA,PATHANAMTHITTA DIST.
4. MRS.MOLLY CHERIAN, W/O CHERIAN,
PARAYIL HOUSE, VADAVATHOOR KARA,
VIJAYAPURAM VILLAGE, KOTTAYAM DIST.
5. MRS.DOLLY ABRAHAM, W/O ABRAHAM,
MADATHUMKAL HOUSE, THOLIKKODU,
NEDUMANGADU, TRIVANDRUM DIST.
6. JOHN K.EAPEN, S/O LATE JOHN,
KALARICKAL HOUSE, VIJAYAPURAM VILLAGE,
KOTTAYAM DIST.
MFA No.41 of 2009 2
7. JOHN K.JOHN, S/O LATEJ JOHN, DO. DO.
8. MRS.MARY MANI, W/O LATE MANI, KALARICKAL
RAJU VILASAM HOUSE, VIJAYAPURAM VILLAGE,
VADAVATHOOR, KOTTAYAM DIST.
* 9. MRS.MARY MANI, W/O LATE MANI,
KALARICKAL RAJU VILASAM HOUSE,
VIJAYAPURAM VILLAGE, VADAVATHOOR, KOTTAYM DIST.(DIED)
10. MRS.SHEELA EAPEN, W/O LATE EAPEN, DO. DO.
11. SONIA EAPEN, D/O DO. DO.
12. SARUN K.MANI, S/O DO. DO.
13. SOUMYA EAPEN, D/O DO. DO.
14. MRS.SUSAN GEORGE, ENNASSERIAL HOUSE,
CHANDANAPPALLY, PATHANAMTHITTA DIST.
15. MRS.SEENA PAULSON, PURATHOOR HOUSE,
12/31, SHANMUGHA THEATRE ROAD,
R.S.PURAM, COIMBATORE, TAMIL NADU.
* 16. K.E.EAPEN @ KUNJUMON, C/O BABY
VEDIYAICHERIL, ST.MARY'S CHURCH,
KURAVILANGADU P.O., KOTTAYAM.
* 17. M.J.THOMAS, MALLAKATTU HOUSE,
MEENADOM, KOTTAYAM DIST. (DIED)
18. MRS.MARIAMMA KURIAN, NEDUMPARAMBIL HOUSE,
CHUNGAMA, KOTTAYAM DISTRICT.
19. MRS.CHINNAMMA ABRAHAM, QUARTERS NO.F.26,
H.A.L. SUNABEDA, KORAPAT DISTRICT, ORISSA.
20. J.THANKARAJ, RETD.SUPERINTENDENT OF CENTRAL
EXCISE, 53,SOUTH PANNAGORAM, RAJAPALAYAM,
KAMARAJ DISTRICT 626 108., TAMIL NADU.
21. JOHN GEORGE, EX-SERVICEMEN, TAXI OWNER,
WEDO SANDHAR POST, DINDIGAL, TAMILNADU.
ADDL. 22. ELCY EAPEN, W/O K.E.EAPEN,
KALAPPURACKAL HOUSE, VADAVATHOOR POST,
KOTTAYAM 686 010.
ADDL. 23. RENJU EAPEN, D/O K.E.EAPEN,
KALAPPURACKAL HOSUE, VADAVATHOOR POST,
KOTTAYAM 686 010.
ADDL. 24. BINDHU THOMAS, D/O K.E.EAPEN,
VELICHAPATTU HOSUE, AMAYANOOR POST,
KOTTAYAM 686 025.
MFA No.41 of 2009 3
ADDL. 25. SINDHU K.EAPEN, D/O K.E.EAPEN,
PULLOORMADATHIL HOUSE, MULAKKULAM, PIRAVOM,
ERNAKULAM.
ADDL. 26. ELCY EAPE, D/O K.E.EAPEN,
VAIDYANPARAMBIL, MEENADOM POST,
KOTTAYAM 686 516.
ADDL. 27. ANNAMMA THOMAS, W/O LATE M.V.THOMAS,
MALLEKATTU HOUSE, MEENADOM, KOTTAYAM DIST.
ADDL. 28. GEORGE THOMAS, S/O LATE M.V.THOMAS,
MALLEKATTU HOUSE, MEENADOM, KOTTAYAM DIST.
ADDL. 29. EANA RAVI, D/O LATE M.V.THOMAS,
MALLEKATTU HOUSE, MEENADOM, KOTTAYAM DIST.
(R2 TO R8 RECORDED AS THE LEGAL REPRESENTATIVES OF
DECEASED IST RESPONDENT AS PER ORDER DTD.3.4.2012
IN I.A.825 OF 2012)
(R10 TO R15 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF
DECEASED 9TH RESPONDENT, AS PER THE ORDER DTD.11.6.2014 IN
I.A.1340 OF 2014)
(R22 TO R26 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF
DECEASED 16TH RESPONDENT AS PER ORDER DTD.28.9.2017 in I.A.
nO.2958 OF 2013)
(ADDL.R27 TO R29 ARE IMPLEASED AS LEGAL REPRESENTATIVES
OF DECEASED R17 AS PER ORDER DTD.9.11.2016
IN I.A.NO.415 OF 2015 IN MFA NO.41/2009)
R2 TO 4, 6 AND 8 BY ADV. SRI.RAJEEV V.KURUP
R22 TO R26 BY ADV.MATHEW JOHN
R10 TO R15 BY ADV.MATHEW JOHN
R27 TO R29 BY ADV.MATHEW JOHN
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
26.7.2017, THE COURT ON 28.9.2017 DELIVERED THE FOLLOWING:
C.R.
P.N. RAVINDRAN & DAMA SESHADRI NAIDU, JJ.
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M.F.A.No.41 of 2009
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Dated this the 28th day of September 2017
JUDGMENT
Dama Seshadri Naidu, J.
Introduction:
The controversy concerns a will--testament--and the parties are Christians. One of the legal heirs to the testator wanted letters of administration. It was opposed. In this first appeal, only two issues arise: Do the statutes of limitation apply to the proceedings under section 213 of the Indian Succession Act, 1925, ("the Act")? Is the amendment to section 213 of the Act prospective or retrospective? Granted that both are pure questions of law, we propose to refer to the facts only for contextualising the controversy.
Facts:
2. One Yohannan, the common ancestor, died testate on 24 October 1978. He executed his last will on 24 June 1974, M.F.A No. 41/2009 : 2 : after executing and cancelling a series of wills--at least four times.
Yohannan was survived by two daughters, whose children now fight for his estate. That is, the succession dispute involves his grandchildren and their children.
3. Chellamma John, the wife of Yohannan's one of the grandsons, and her children filed OP (LA) No. 290 of 1996 claiming the letters of administration; they base their claim on Yohannan's registered will No. 34 of 1974. Later, the original petition was renumbered as OS No. 3 of 99 on the file of the Additional District Judge, Kottayam. The 14 defendants included Jacob@Kurian1 as the ninth respondent; he alone contested the case.
4. Jacob's principal contention was that Yohannan died intestate. On the questions of law, he maintained that the proceedings for the letters of administration were proscribed--barred by limitation. He also contended, alternatively, that if it all Yohannan had executed a will, it was under duress. 1In another appeal--RSA No.94 of 2004--between the same parties the ninth respondent described himself Jacob; in this appeal, he was described as Kurian@Jacob. For uniformity's sake, we refer to him as Jacob.
M.F.A No. 41/2009 : 3 :
5. The Trial Court, through its judgment dated 23 January 2001, decreed the suit: that the will is genuine and that Chellamma John and her children can have the letters of administration. Aggrieved, Jacob filed this first appeal.
Submissions:
Appellant's:
6. Sri Mathew John, the learned counsel for the appellant, has fairly given up his contentions on the merits: the genuineness of the will. But he strenuously canvassed his twin pleas--that the suit was hit by Article 137 of the Limitation Act, 1963, and that Chellamma John and others failed to fulfil the conditions stipulated under section 213 of the Act.
Respondents':
7. The respondents supported the impugned judgment and maintained that they should have the letters of administration. Amicus curiae:
8. On the questions of limitation and of amendment--whether the amended section 213 affects prospectively or retrospectively--we M.F.A No. 41/2009 : 4 : noticed some precedential ambivalence. So we requested Dr. Sebastian Champappilly, an advocate and author on Christian laws, to assist the Court. Besides making elaborate submissions, Dr.Sebastian submitted a 16-page note, covering both the legal aspects.
9. On the question of limitation, Dr. Sebastian contends that the period prescribed under Article 137 of the Limitation Act applies to an application for probate or letters of administration under the Indian Succession Act, 1925. He maintains that this period runs from the time "the right to apply accrues," which is not necessarily from the date of death of the testator, as the right to apply for probate or letters of administration is a continuing right. And the starting point is the happening of an event.
10. Drawing our attention to the amended section 213 of the Act, Dr. Sebastian has submitted that the amendment has taken the Indian Christians out of the rigours of that section. There is no longer, according to Dr. Sebastian, any prohibition against an Indian M.F.A No. 41/2009 : 5 : Christian asserting his rights under a will without obtaining probate or letters of administration.
11. Heard Sri Mathew John, the learned counsel for the appellant, Sri Rajeev V. Kurup, the learned counsel for the respondents, and Dr. Sebastian Champappilly, the learned amicus curiae, besides perusing the record.
Issues:
1. Are the proceedings for the letters of administration barred by time?
2. In the proceedings for the letters of administration, does the title to the property matter?
3. Is the amendment to section 213 prospective or retrospective?
4. Are the letters of administration mandatory for a legatee to assert his or her right?
Discussion:
12. The appeal pending before this Court, Chellamma John died. Even the 9th and 17th respondents, Mary Moni and MJ Thomas, respectively, died. Their legal representatives were brought on record. M.F.A No. 41/2009 : 6 : Genuineness of Will:
13. It is a nonissue. As we have mentioned, Jacob has given up his plea about the genuineness of the will. That apart, earlier Jacob, on his part, filed OS No. 153 of 1995 before the Munsiff Court, Kottayam, to restrain John, his another brother and Chellamma's husband, from constructing a new shed on the plaint schedule property--10 cents covered by the will. Jacob in that suit contended that an earlier will executed by Yohannan on 15 December 1971 was the last will. Given Jacob's specific plea and also the counter claim set up by John that the will, dated 24 September 1974, is the last will, the Trial Court framed an issue on the genuineness of the will, dated 24 June 1974.
14. In the end, the Trial Court dismissed OS No. 153 of 1995 and allowed the counter claim: declared that the will, dated 24 June 1974, is genuine. After a further challenge, now that matter, too, is pending before this Court, in another appeal.
M.F.A No. 41/2009 : 7 : Are the Proceedings Barred by Limitation?
15. It is very difficult, and it will not be in order, maintained the High Court of Madras in S. Krishnaswamy v. E. Devarajan,2 to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an 'application' under Article 1373 of the Limitation Act, 1963.
16. Article 137 of the Limitation Act, 1963 is the residuary provision like Article 181 of the old Limitation Act. But it contains certain modifications in the language and in its classification. Initially a view had prevailed--as was held in Krishna Kumar Sharma v. Rajesh Kumar Sharma4--that Article 137 applied only to the applications made under the Code of Civil Procedure. Later, Kerala S. E. Board v. T. P. Kunhaliumma5 has overturned Krishna Kumar Sharma.
17. The right to apply for probate or letters of administration accrues daily if the will remains unprobated; therefore, for probate 2AIR 1991 Madras 214 (DB) 3Art.137: Any other application for which no period of limitation is provided elsewhere in this Division--three years from the date the right to apply accrues. 42009 (2) KLT 149 (SC) 5AIR 1977 SC 282 M.F.A No. 41/2009 : 8 : proceedings there is no limitation. To hold so, a Division Bench of Patna High Court in Ramanand Thakur vs. Parmanand Thakur6 has relied, among other decisions, on Madras High Court's Ghanamuthu Upadesi v. Vana Koilpillai Nadan7. In Ramsagar Tiwary v. State8 another Division Bench of Patna High Court reiterated the same view. A Division Bench of Calcutta High Court, too, affirmed the same view in Goutam Bhowmick@Bhuiya v. Shrimati Sabitri Bhuiya9.
18. As for the precedential position of our own High Court, in Francis v. Antony,10 a learned single Judge has held that Article 137 of the Limitation Act does not apply to the proceedings for probate or letters of administration.
19. Of all the decisions, Francis v. Cherupushpam11, per a learned single Judge, has held that Article 137 of the Limitation Act will apply to probate proceedings also. Let us examine deeper. 6AIR 1982 Pat 87 7ILR(1894) Mad 379 8 AIR 2012 Patna 133 9AIR 2012 Cal 57 101991 (1) KLT 62 112009 (3) KLT 479 M.F.A No. 41/2009 : 9 :
20. In Kunvarjeet Singh Khandpur v. Kirandeep Kaur12, by following T.P. Kunhaliumma, the Supreme Court has held that Art. 137 of the Limitation Act, 1963, applies to proceedings for probate or letters of administration. The Supreme Court reiterated this view in Krishna Kumar Sharma V. Rajesh Kumar Sharma13, as well.
21. Article 137, the residuary provision, stipulates as prescriptive period three years from the date the right to apply accrues. First, the letters of administration are not essential for a person to assert his or her right as a legatee. For the proceedings for letters of administration do not determine the legatee's title. Nor are the letters of administration dispositive of any right in the property. One must get the letters of administration only if the proceedings are before a court of law; in other words, the requirement of letters of administration belongs to the realm of the rule of evidence, not the rule of law.
22. So a legatee will have no cause of action accrued to him to secure letters of administration from a competent court unless they 122008 (8) SCC 463 132009 (2) KLT 149 (SC) M.F.A No. 41/2009 : 10 : are meant to be used in judicial proceedings. Viewed alternatively, the legatee's cause of action depends upon a challenge to his or her rights as a legatee. Until such an eventuality, no cause of action arises for the legatee.
23. In Kunvarjeet Singh Khandpur, the Supreme Court has first observed that "[a]s rightly observed by the High Court, in such proceedings the application merely seeks recognition from the court to perform a duty and because of the nature of the proceedings it is a continuing right." It has, then, approved the Madras High Court's observations in S. Krishnaswami that there is no law that compels the applicant to apply for probate or letters of administration. It will be legitimate to conclude, observes the Supreme Court, that the petition for grant of probate or letters of administration is not an action in law.
24. But the Supreme Court has disapproved Madras High Court's conclusion in S. Krishnaswami that the proceedings for grant of probate or letters of administration stand unaffected by Article 137 of the Limitation Act, 1963. It has, in fact, observed: M.F.A No. 41/2009 : 11 :
"Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of Administration is not covered by Article 137 of the Limitation Act."
25. To be explicit, we may recollect that in T. P. Kunhaliumma the Supreme Court has held that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act before a civil court. In this regard, it differed from the view taken by a Bench of two-Judges in Town Municipal Council, Athani v. Presiding Officer, Labour Court14. On the other hand, Kunvarjeet Singh Khandpur has approved with minor variations the decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani15.
26. On limitation, the Bombay High Court has posited:
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
14 (1969) 1 SCC 873 15AIR 1983 Bom 268 M.F.A No. 41/2009 : 12 :
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased is unwarranted;
(c) such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within three years from the date of the deceased's death;
(e) delay beyond three years after the deceased's death would arouse suspicion; and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates.
(italics supplied)
27. But Kunvarjeet Singh Khandpur has disapproved conclusion (b), while approving, in particular, the conclusion (c) as "the correct position of law." Whether there is any divergence M.F.A No. 41/2009 : 13 : between conclusions (b) and (c) or whether they variably affirm the same point need not detain us.
28. From the above precedential position, we can deduce that the period of limitation under Article 137 of the Limitation Act, 1963, applies to an application for probate or letters of administration under the Indian Succession Act, 1925. And this period runs from the time ''the right to apply accrues'', which is not necessarily from the date of the testator's death. For the right to apply for probate or letters of administration is a continuing right, and reckoning point is the happening of an event triggering the cause of action: a dispute involving a legatee's rights.
29. But, as we have declared, Chellamma John and others have not been compelled to get the letters of administration; so, we can safely hold that the question of limitation pales into insignificance, rather becomes moot.
Does Title to the Property Matter?
30. In a proceeding for grant of probate or letters of administration, according to the High Court of Madras in S. M.F.A No. 41/2009 : 14 : Krishnaswamy, the applicant claims or asserts no right. The applicant only seeks permission of the court to perform a duty. Probate or letters of administration issued by a competent court conclusively prove the legitimacy of the person acting under the will. In fact, no rights of the applicant are settled or secured in the legal sense. S. Krishnaswamy further observes that "[t]he author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty." That duty is only moral, and it is not legal. It further posits that there is no law that compels the applicant to file the proceedings for probate or letters of administration.
31. In 1962, the Supreme Court held that proceedings for probate or letters of administration are not concerned with titles of the property. The words of S. 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section prohibits no person from claiming as a legatee or as an executor without his obtaining a probate or letters of M.F.A No. 41/2009 : 15 : administration of the will under which he claims: Hem Nolini Judah v. Isolyne Sarojsbashini Bose16
32. The only issue in probate proceedings, according to the Supreme Court in Chiranjilal Shrilal Goenka v. Jasjit Singh17, relates to the genuineness of the will. The Succession Act is a self-contained code dealing with the questions of "making an application for probate, grant or refusal of probate, or an appeal carried against the decision of the probate court." The probate court must conduct the probate proceedings "in the manner prescribed in the Act and in no other ways." And the grant of probate with a copy of the will annexed, according to Chiranjilal Shrilal Goenka, establishes conclusively the executor's appointment and the will's valid execution. Thus, it does no more than establishing the factum of the will's execution and the executor's legal character. A probate court decides no question of title or the existence of the property itself.
33. A Division Bench of the Karnataka High Court, relying on Chiranjilal, and a host of other decisions, in B. Manjunatha Prabhu 16AIR 1962 SC 1471 17(1993) 2 SCC 507 M.F.A No. 41/2009 : 16 : v. C.G. Srinivas18, affirms this legal proposition that probate proceedings have nothing to do with the title to the property. To the same effect is Ramsagar Tiwary, rendered by the Patna High Court. The Probate & The Letters of Administration:
34. Probate, as defined in Section 2 (f) of the Act, is the copy of a will certified under the seal of a court of competent jurisdiction, given to an administrator to administer the testator's estate. An administrator alone is entitled to get the probate.19 On the other hand, if no executor is appointed by the testator, anyone claiming a right under the will can apply for letters of administration.20 But if the property-holder has died intestate, the wife or husband, as the case may be, has got a preferential right to get the letters of administration, as provided under section 219 (a) and (e) of the Act. Travancore Christians:
35. The Christians in the Travancore region of the State of Kerala were initially governed by the Travancore Christian Succession Act; those in Cochin area were governed by the Cochin 18AIR 2005 Kant 136 19See Section 222 of the Act.
20See Chapter IX of the Act M.F.A No. 41/2009 : 17 : Christian Succession Act. Both these enactments dealt with intestate succession among Indian Christians, and there was no provision in the Act for testamentary succession among them. In fact, the testamentary succession among the Travancore Christians was regulated by the Travancore Wills Regulation (1074 M.E) of 1899, though this Regulation was not exclusively meant for Christians; it applied to all communities, however.
36. This Pre-Independence Regulation, along with its Rules, deals with Probate and Administration. But the Regulation later yielded to the Indian Succession Act, 1925, a central legislation. To be explicit, the Travancore Wills Regulation was held to have been repealed with the enactment of the Part B States (Laws) Act, 1951; the Indian Succession Act, 1925, came to be extended to Travancore, too.21 On the same reckoning, the Cochin Probate and Administration Act also stood repealed.
The Christian Testators - Probating Wills:
37. Viewed in a historical perspective, initially, the rights of the Hindus and the Muslims in British India were severely restricted in 21Geevarghese V. Issahak Georeg AIR 1971 Ker. 270 M.F.A No. 41/2009 : 18 : the matters of testamentary disposition. So it was inconsequential whether their wills were probated or not. But the Christians could will away their entire property; the Legislature in its wisdom, then, thought that their wills should be probated. It may be noted that the wills of the Hindus, the Muslims, and others were also to be probated if it dealt with immovable property in the Presidency Towns, where the value of the property, usually, was high. In other words, probate is unnecessary unless clauses (a) and (b) of section 57 of the Act are attracted. Thus, the necessity for probating a will under section 213 of the Act becomes clear.
Testamentary Succession:
38. The rules relating to testamentary succession among Christians in India are contained in sections 58 to 319, Part VI, of the Indian Succession Act, 1925.
39.With Christians, a person connected either by marriage or consanguinity can obtain letters of administration. Thereafter, the person should carry out the testator's intentions as embodied in the will.22 As to an intestate's property, no right to that property can be 22See Sectoo 216 M.F.A No. 41/2009 : 19 : established in any Court of Law unless the person asserting the right obtains letters of administration from a court of competent jurisdiction. As seen from Section 212 of the Act, through Act 16 of 1962, Indian Christians, among others, were exempted from the rigour of Section 212 of the Act.
Amendment of section 213 - prospective or retrospective:
40. Section 21323 of the Act deals with how the rights of an executor or legatee are established. To claim a right under a will before a court of law, an executor or a legatee should get the probate of that will from a competent court in India. In the alternative, the 23 213. 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 1[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[(2) This section shall not apply in the case of wills made by Muhammadans 3[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 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, where such wills are made within the local limits of the ordinary 4[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.] STATE AMENDMENT KERALA.--(2) In sub-section (2) of Section 213 of the Indian Succession Act, 1925 (Central Act 39 of 1925), after the word `Muhammadans', the words `or Indian Christians' shall be inserted vide Kerala Amendment Act, 1996 (1 of 1996) dt. 14-3-1997. M.F.A No. 41/2009 : 20 : party propounding should get letters of administration authenticating the will. From 1962, Mohammadans were excluded from the provision's purview. Later, from 2002 (Act 26 of 2002), the Parliament excluded Christians, too, from the rigours of the provision. The 2002 amendment has a pan-India application.
41. But, before the provision could have an all-India amendment, the State of Kerala, with effect from 14.03.1997, brought in an amendment (Act 1 of 1996): The `Indian Christians' were exempted from the purview of section 213 of the Act. Impact of the Amendment:
42. Now, with the amendment, any bar against recognising the rights of an executor or a legatee under a Christian will without his or her producing a probate has been done away with. In other words, a person nominated as an executor or a legatee under a will executed by a deceased Christian can establish his rights under the will without obtaining a probate.
43. It must be remembered that the amendment was necessitated because of the Supreme Court's decision in Mary Roy M.F.A No. 41/2009 : 21 : v State of Kerala24, which declared that the Indian Succession Act, 1925, had been extended to the Part B State by the Part B State (Laws) Act, 1951 w.e.f. 1.4.1951. The decision was rendered on 24th February 1986, but the impact of the decision was such that section 213 of the Indian Succession Act, 1925, according to the amicus curiae, came to affect the Travancore-Cochin area of the State of Kerala with effect from 1.4.1951.
44. The Law Commission of India, in its Report No. 209 (in 2008), has felt that Section 213 of the Indian Succession Act, 1925, is discriminatory regarding wills made by the Hindus, Buddhists, Sikhs, Jains, or Parsis and that there is no uniformity in that provision's application to those communities. Recommendatory as the Report is, it does not seem to have led to any legislative changes, yet.
What is the nature of proceedings for Probate?
Is Section 213 Substantial or Procedural?
45. To begin with, there had been, initially, a considerable judicial debate over whether section 213 of the Act is substantial or 24 1986(2) SCC 209 M.F.A No. 41/2009 : 22 : merely procedural. In Sheonath Singh vs. Madanlal25, Rajasthan High Court has observed that section 213 of the Act has nothing to do with vesting the estate of a deceased; it is governed by the parties' personal law. Instead, what the section really does is that it lays down a rule of procedure: a person seeking to establish his right in any court of law as an executor or a legatee must have obtained the probate of the will under the circumstances mentioned in the section. If such a right is not material to an issue before a court of law, the want of a probate need not and should not affect the right of a legatee.
46. Sheonath Singh approves the proposition that an executor, even before he proves the will--but once it comes into force--may lawfully take into his hand the testator's effects, may pay his debts, receive payments due to him, and may sell his goods at his discretion, without proving the will; all his acts so done stand good. Section 213, further holds Sheonath Singh, lays down only a rule of 25AIR 1959 Raj 243 M.F.A No. 41/2009 : 23 : procedure. In other words, section 213 of the Act enacts a rule of evidence and constitutes the procedural requirement of the lex fori.26
47. It is too well established as a proposition of law to be contradicted that (1) a statute divesting a person of vested rights is to be construed as prospective only; (2) a statute which is merely procedural is, however, to be construed retrospectively; and (3) a statute which, while procedural in its character, nevertheless affects vested rights adversely is to be reckoned only prospectively.
48. At common law, the repeal of a statute or statutory provision means that the law must be applied as if the provision had never existed. This is subject to an exception, variously expressed as "transactions past and closed", "all matters that have taken place under it before its repeal are valid and cannot be called in question", or "transactions already completed under it". The Australian High Court, in Maxwell v. Murphy27, considered the impact of an amendment on the rights of the parties. It has held that under the common law, a statute changing the law ought not, unless the 26Blackwood and Sons Ltd. v. A.N. Parasuraman (AIR 1959 Madras 410) 27[1957] HCA 7 M.F.A No. 41/2009 : 24 : intention appears with reasonable certainty, to be understood as applying to facts or events that have occurred in such a way as to affect the rights or liberties which the law had defined by reference to the past events.
49. But, given the rights and liabilities fixed with reference to past events, the law regulating the way they are to be enforced or the way a judicial remedy to be pursued to secure their enforcement is not within the purview of such a presumption. The Australian High Court quotes with approval Mellish L.J. in Republic of Costa Rica v. Erlanger28: "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done."
50. Though the Legislature has plenary legislative powers within the fields assigned to it and can legislate prospectively or retrospectively, generally, unless the enactment specifically mentions that the legislative amendment is retrospective, according to the Supreme Court in District Collector, Vellore District v. K. 28(1876) 3 Ch. D. 62.
M.F.A No. 41/2009 : 25 : Govindraj29, it must be treated as prospective. It would be more so when the statute is dealing with substantive rights. K. Govindraj further holds that, in contrast to a statute dealing with substantial rights, wherever a statute deals with mere matters of procedure, such a statute or amendment lends presumption to retrospectivity unless such a construction is textually inadmissible. At the same time, K. Govindraj cautions, it is to be borne in mind that a particular provision in a procedural statute may affect substantial rights, and such a provision cannot be given retrospective effect. Is Probate or Letters of Administration Mandatory?
51. There had been, as we have already mentioned, a serious doubt whether section 213 casts a mandatory statutory-obligation on the class of people mentioned by it. In Geevarghese Geevarghese v. Issahak George and Ors.,30 this Court, factually and legally, considered two issues: Is the document a gift deed or a will? Is probate mandatory to claim rights under a will? We concern ourselves with the latter question. The Court, per VR Krishna Iyer, 29AIR 2016 SC 526 30AIR 1971 Kerala 270 M.F.A No. 41/2009 : 26 : J, (as his Lordship then was) held that section 213 of the Indian Succession Act creates a bar: a legatee cannot assert his right under a will without a probate. The Court also considered the impact of the Travancore Wills Act on the issue and its interplay with section 213 of the Indian Succession Act.
52. The Court declared that section 213 governs. In this context, it has further observed that it may inflict hardship on a legatee who claims under a will registered long ago as per the Travancore Wills Act. But the law that applies is the one that prevails when the right of the legatee is sought to be established in a judicial proceeding. So the Indian Succession Act's application cannot be inhibited. The Court has further held that section 213 is processual but not substantial and that it applies to wills of anterior dates sought to be proved on a posterior date. Syndicate Bank v. Soji Chacko31 posits the same principle.
53. Section 213 of the Act, according to a Division Bench of this Court in Cherichi v. Ittianam32, prescribes how an executor or a 311998 (2) KLT 25 322001 (1) KLT 415 M.F.A No. 41/2009 : 27 : legatee can establish his or her right under a will. We should decide the need of a person's getting a probate or letters of administration, Cherichi observes, by referring to the time when that person wanted to establish his right as an executor or a legatee. The law applicable at that time alone must be considered. In other words, when the will was executed or when the proceedings in a court of law were commenced has no relevance. Even if the amendment came into force while the proceedings were pending, further holds Cherichi, it cannot be insisted that the person should have obtained probate or letters of administration for establishing his right. Cherichi finally holds that even though section 213 was amended, the other provisions dealing with probate or letters of administration have remained unchanged; so, it cannot be said that because of the amended section 213 of the Act, the propounder need not get the probate or letters of administration.
54. The necessity of getting a will probated or obtaining the letters of administration arises only when the right derived under the will is sought to be enforced. In Lilly George v. Francina James,33 a 332008 (3) KLT 27 M.F.A No. 41/2009 : 28 : Division Bench of this Court, per one of us (P. N. Ravindran J), repelled the contention that the will could not be pressed into service without probate. On facts, Lilly George observed that the will took effect only after 14-3-1997, and the right under the will was pressed into service thereafter. By then, the material provision, section 213 of the Act, stood amended, obviating any need for the legatee or the executioner to obtain probate or letters of administration.
55. Here, too, Yohannan executed the will on 24 June 1974; he died on 24 October 1978. In the collateral civil proceedings initiated by the Jacob himself, a competent Civil Court has upheld the will: its genuineness stood established. Further, pending the civil proceedings, initiated in 1996, for letters of administration, State of Kerala amended section 213 with effect from 14 March 1997, though the pan-India amendment was from 2003. So going by the holding of Lily George, we declare that Chellamma John and her children, the legal heirs of John, have not been statutorily compelled to have the Letters of Administration to assert their rights in the bequeathed properties or to administer Yohannan's estate.
M.F.A No. 41/2009 : 29 :
56. Before concluding, we wish to, and we do, appreciate the meticulous efforts put in by Dr. Sebastian Champappilly to assist us in this matter.
Conclusion:
57. To conclude, we hold that Jacob's neither plea--on limitation and on the legatees' need to obtain the letters of administration--can be sustained. We further hold that the Trial Court's finding that the respondents may have the letters of administration need not be disturbed, though the very need for such a judicial recognition of a legatees' right no longer subsists.
So we dismiss the first appeal. No order on costs.
Sd/- P.N. RAVINDRAN, JUDGE
sd/- DAMA SESHADRI NAIDU, JUDGE
css/ true copy
P.S.TO JUDGE