will can be Registered After Testator's Death
Citation
CDJ 2010 All HC 020
Krishna Kumar and others vs court of district registrar
Comparative Citations:
2010 AIR(All) 165, 2010 (4) ADJ 804, 2010 (5) ALLLJ 395, 2010 (3) CivLJ 155
2010 AIR(All) 165, 2010 (4) ADJ 804, 2010 (5) ALLLJ 395, 2010 (3) CivLJ 155
Judgement
Heard Sri Puneet Chandra, learned counsel for the petitioners and Sri H.S. Tiwari, learned counsel for the opposite parties.
By means of present writ petition, the petitioners are seeking a writ of certiorari for quashing the order dated 09.11.2009 passed by the District Registrar/ Additional District Magistrate (Finance & Revenue), district Raebareli in Vad Sankhya 1/2009; Smt. Ramraj Devi vs. Up Nibandhak, Tiloi & others, under Section 72 (1) of Indian Registration Act, 1908 (herein- after referred to as the Act). The petitioners have also sought a writ of mandamus commanding the opposite parties not to enforce the Will at anywhere and restrain the Registrar of Raebareli not to register any sale deed, transfer deed, mortgage deed or any other document which relates to the Will.
The submission of counsel for the petitioners is that late Sri Jagannath Prasad Srivastava died leaving behind four sons, namely, (1) late Sri Lalta Prasad, (2) late Sri Mangali Prasad, (3) late Sri Narmada Prasad and (4) late Sri Jamuna Prasad. Late Sri Lalta Prasad is having two sons, namely, Sri Hausala Prasad and Sri Krishna Kumar. Late Sri Mangali Prasad had no issue, late Sri Narmada Prasad was unmarried and late Sri Jamuna Prasad is having three sons, namely, S/Sri Ram Chander, Shiv Kumar and Suresh Chandra Srivastava.
Further submission of learned counsel for the petitioners is that one Smt. Ramraj Devi w/o late Sri Manohar Lal Srivastava presented a Will for registration. The alleged Will was prepared by Smt. Shiv Pati w/o late Sri Mangali Prasad on 06.03.2009 for registration. The Registrar published a notice in Dainik Jagaran Hindi Daily Newspaper on 24.03.2009 for inviting objection. The petitioners, on publication of notice in Newspaper, got knowledge about the alleged Will. Accordingly, the petitioners moved an objection before the Sub-Registrar opposing the registration of the Will stating therein that the petitioners are the only legal heirs of late Smt. Shiv Pati, being real aunt of the petitioners and they were having good relation with her. Late Smt. Shiv Pati also acknowledged the petitioners as her legal heirs after death of her husband at various places and departments, she nominated the petitioners as her nominees and also gave assurance to the petitioners that after her death, the petitioners would be her successor and legal heirs and they will become the owner of her property. It is also submitted that opposite party no.2 has no relation with Smt. Shiv Pati. The opposite party no.2 filed reply to the objections of the petitioners and the learned Sub-Registrar, after considering the facts and circumstances of the case passed an order on 27.06.2009 in which he reached the conclusion that the present Will is fictitious and not fit for registration and accordingly registration of Will was refused.
The opposite party no.2 feeling aggrieved by the order dated 27.06.2009 preferred an appeal under Section 72 (1) of the Act. The appeal was allowed vide order dated 09.11.2009. The petitioners feeling aggrieved against the order dated 09.11.2009, have preferred the present writ petition alleging therein that the opposite party no.1 has not considered the arguments and objections, raised by the petitioners and created a new story, which was not in the pleadings.
Learned counsel for the petitioners also submitted that the petitioners approached the Police Authorities for lodging an F.I.R. and on their refusal the petitioners moved an application under Section 156 (3) of Cr.P.C. before the Judicial Magistrate and the learned Judicial Magistrate vide order dated 12.11.2009 directed the Police Authorities to lodge the F.I.R.
It is argued by the counsel for the petitioners that the alleged Will was presented for registration before the Sub-Registrar after the death of Smt. Shiv Pati Devi and some person purchased two non-judicial stamp papers of Rs.50/- in some other name for the purposes of affidavit. The stamp paper was purchased on 15.12.2008 and the Will was written on the said stamp paper on 06.03.2009 and presented before the Sub-Registrar on 19.03.2009.
Learned counsel for the petitioners also very vehemently argued that after death of late Smt. Shiv Pati Devi all her last rites were performed by the petitioner and their family members. The opposite party no.2 is trying to sell or transfer the property of late Smt. Shiv Pati Devi in pursuance of the forged Will and, therefore, the order dated 09.11.2009 deserves to be quashed with further direction to the opposite parties not to enforce the Will at anywhere.
Sri H.S. Tiwari, learned counsel for the opposite party no.2 while opposing the writ petition, raised a preliminary objection that petitioners do not have any locus to file the present writ petition, hence, the present writ petition is not maintainable. The learned counsel, in support of preliminary objection, invited attention of this Court towards various provisions of the Act. It is further submitted by Sri H.S. Tiwari that as per Section 40 of the Act, the testators or after his death any person claiming as an executor may present the Will for registration and Section 41 of the Act further provides that the Sub-Registrar may register the Will on his satisfaction. Three conditions of the satisfaction are provided (a) a Will was executed by the testator, (b) the testator is dead and (c) the person presenting the will is entitled to present the same. The Sub-Registrar may accept the registration of Will or deny the same and in case of denial, the reason for denial is to be recorded under the provisions of Section 71 of the Act. In case registration is refused, the person aggrieved has a right to prefer an appeal under Section 72 of the Act before the Registrar. In case, the appeal is dismissed, then remedy is available to file a civil suit as per the provisions of Section 77 of the Act.
Sri Tiwari further submitted that in the Registration Act, 1908, there is no provision which provides that any other person can make objection against the registration of a Will Deed and similarly there is no provision in the Act, which provides that in case appeal is allowed then any remedy is available to the objector. Sri Tiwari also relied upon the Division Bench judgment of this Court reported in 1998 (Suppl) R.D. 438, Km. Sushila Saxena vs. Sub-Registrar, Shahjahanpur & others, in which it has been held that registration is merely a notification of factum of execution of documents evidencing the event of transaction affecting the title qua any person or property. The registration of Will is the matter in between the person presenting it and the Registering Authorities, third person does not have any concern or right to object the registration. Any person, if aggrieved, may challenge the legality of the transaction covered by the Will. It is also submitted by the learned counsel for the opposite party no.2 that the petitioners have not approached this Court with clean hands as the petitioners have preferred a regular suit for cancellation of Will Deed before the Civil Judge, Junior Division, Court No.16, Raebareli i.e. Regular Suit No. 1028/ 2009 and this matter of fact has been concealed by the petitioners. Sri Tiwari further submitted that though the objections were invited by the Registrar but this publication is not provided in any of the provision of the Act and petitioner no.1, Krishna Kumar was not entitled to prefer any objection before the Sub-Registrar. It is also submitted that the answering respondent is the legal heir of late Smt. Shiv Pati Devi on basis of the Will. It is further submitted that though the deponent does not belong to family of late Shiv Pati Devi and she is neighbour of late Shiv Pati Devi. The husband of late Shiv Pati Devi died during life time of Smt. Shiv Pati Devi. After the death of husband of late Shiv Pati Devi, she was being looked after by the deponent, hence late Shiv Pati Devi had executed a Will Deed in favour of the answering respondents. It is also submitted that the Sub-Registrar in its order dated 27.06.2009 ignored the witnesses and affidavit of Smt. Shiv Kumar and Mihi Lal, who were the marginal witnesses of Will deed. After the appellate order dated 09.11.2009, the Will Deed has been registered on 13.11.2009 by the Sub-Registrar. Lastly, the answering respondents submitted that none of the grounds, taken in the writ petition, are tenable in the eyes of law, hence, the writ petition deserves to be dismissed.
Learned counsel for the petitioners, in his reply, reiterated his earlier arguments.
I have considered the arguments of learned counsel for the respective parties and gone through the record.
The provisions regulating the presentation of documents for registration, other than Wills and authorities to adopt the procedure, are contained in Sections 32, 33, 34 and 35 of the Act and regarding the Wills and authorities the procedure to be adopted by the authorities are contained in Sections 40 and 41 of the Act, which reads as under:-
“40. Persons entitled to present wills and authorities to adopt. - (1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration.
(2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub-Registrar for registration.”
“41. Registration of wills and authorities to adopt. - (1) A will or any authority to adopt, presented for registration by the testator or donor may be registered in the same manner as any other document.
(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered, if the registering officer is satisfied :-
(a) that the will or authority was executed by the testator or donor, as the case may be ;
(b) that the testator or donor is dead; and
(c) that the person' presenting the will or authority is, under Section 40, entitled to present the same.”
From perusal of Sub-section 1 of Section 40 of the Act, it is evident that the testator, and after his death, the person claiming as executor or otherwise under a Will is entitled to present the Will and as per the provisions of Sub-Section (1) of Section 41 of the Act a Will presented by the testator has to be registered by the Registering Authority in the same manner as any other document i.e. after complying the provisions of Sections 32, 33, 34 and 35 of the Act. Sub-section (2) of Section 41 of the Act envisages that the Will presented by any person, other than the testator, entitled to present, has to be registered by the Registering Authority on his being satisfied about the following three conditions; (i) that the Will has been executed by testator; (ii) that the testator is dead; and (iii) that the person presenting the Will is, under Section 40, entitled to present the same. It is not disputed that in the present case the testator has died. It is also not disputed that the opposite party no.2, who presented the Will before the Sub-Registrar for registration, under Section 40 (1) of the Act, entitled to present the same. At this stage, the satisfaction of the Sub-Registrar about the factum of execution of Will by the testator is only required. The satisfaction of the Registering Authority about execution of a Will by the testator is provided in Sub-Section (2) of Section 41 of the Act, which can be achieved by examining the attesting witnesses and the scribe, who are the person most competent to testify in this regard. Neither the petitioners nor any other person can be, by any stretch of imagination, held to be the person or persons competent to testify the factum of execution of Will. They may be competent to challenge the legality of the transaction covered by the Will. The registration of a documents, is merely a notification of factum of execution of a document evidencing the event of transaction affecting the title qua any person or property. The registration has nothing to do with the legality of the transaction covered by the document, which may be open to challenge by the affected person in appropriate proceedings at proper forum. In view of the above discussion, I am of the considered view that as per the scheme of the Act, the petitioners are not legally entitled to object the registration of Will and they are totally strangers to the said proceedings. I do not find any illegality in the order dated 09.11.2009, passed by the Appellate Authority under Section 72 (1) of the Act. In the result, the petition fails and the same is hereby dismissed. The interim order dated 04.12.2009 stands discharged. There shall be no order as to costs.
By means of present writ petition, the petitioners are seeking a writ of certiorari for quashing the order dated 09.11.2009 passed by the District Registrar/ Additional District Magistrate (Finance & Revenue), district Raebareli in Vad Sankhya 1/2009; Smt. Ramraj Devi vs. Up Nibandhak, Tiloi & others, under Section 72 (1) of Indian Registration Act, 1908 (herein- after referred to as the Act). The petitioners have also sought a writ of mandamus commanding the opposite parties not to enforce the Will at anywhere and restrain the Registrar of Raebareli not to register any sale deed, transfer deed, mortgage deed or any other document which relates to the Will.
The submission of counsel for the petitioners is that late Sri Jagannath Prasad Srivastava died leaving behind four sons, namely, (1) late Sri Lalta Prasad, (2) late Sri Mangali Prasad, (3) late Sri Narmada Prasad and (4) late Sri Jamuna Prasad. Late Sri Lalta Prasad is having two sons, namely, Sri Hausala Prasad and Sri Krishna Kumar. Late Sri Mangali Prasad had no issue, late Sri Narmada Prasad was unmarried and late Sri Jamuna Prasad is having three sons, namely, S/Sri Ram Chander, Shiv Kumar and Suresh Chandra Srivastava.
Further submission of learned counsel for the petitioners is that one Smt. Ramraj Devi w/o late Sri Manohar Lal Srivastava presented a Will for registration. The alleged Will was prepared by Smt. Shiv Pati w/o late Sri Mangali Prasad on 06.03.2009 for registration. The Registrar published a notice in Dainik Jagaran Hindi Daily Newspaper on 24.03.2009 for inviting objection. The petitioners, on publication of notice in Newspaper, got knowledge about the alleged Will. Accordingly, the petitioners moved an objection before the Sub-Registrar opposing the registration of the Will stating therein that the petitioners are the only legal heirs of late Smt. Shiv Pati, being real aunt of the petitioners and they were having good relation with her. Late Smt. Shiv Pati also acknowledged the petitioners as her legal heirs after death of her husband at various places and departments, she nominated the petitioners as her nominees and also gave assurance to the petitioners that after her death, the petitioners would be her successor and legal heirs and they will become the owner of her property. It is also submitted that opposite party no.2 has no relation with Smt. Shiv Pati. The opposite party no.2 filed reply to the objections of the petitioners and the learned Sub-Registrar, after considering the facts and circumstances of the case passed an order on 27.06.2009 in which he reached the conclusion that the present Will is fictitious and not fit for registration and accordingly registration of Will was refused.
The opposite party no.2 feeling aggrieved by the order dated 27.06.2009 preferred an appeal under Section 72 (1) of the Act. The appeal was allowed vide order dated 09.11.2009. The petitioners feeling aggrieved against the order dated 09.11.2009, have preferred the present writ petition alleging therein that the opposite party no.1 has not considered the arguments and objections, raised by the petitioners and created a new story, which was not in the pleadings.
Learned counsel for the petitioners also submitted that the petitioners approached the Police Authorities for lodging an F.I.R. and on their refusal the petitioners moved an application under Section 156 (3) of Cr.P.C. before the Judicial Magistrate and the learned Judicial Magistrate vide order dated 12.11.2009 directed the Police Authorities to lodge the F.I.R.
It is argued by the counsel for the petitioners that the alleged Will was presented for registration before the Sub-Registrar after the death of Smt. Shiv Pati Devi and some person purchased two non-judicial stamp papers of Rs.50/- in some other name for the purposes of affidavit. The stamp paper was purchased on 15.12.2008 and the Will was written on the said stamp paper on 06.03.2009 and presented before the Sub-Registrar on 19.03.2009.
Learned counsel for the petitioners also very vehemently argued that after death of late Smt. Shiv Pati Devi all her last rites were performed by the petitioner and their family members. The opposite party no.2 is trying to sell or transfer the property of late Smt. Shiv Pati Devi in pursuance of the forged Will and, therefore, the order dated 09.11.2009 deserves to be quashed with further direction to the opposite parties not to enforce the Will at anywhere.
Sri H.S. Tiwari, learned counsel for the opposite party no.2 while opposing the writ petition, raised a preliminary objection that petitioners do not have any locus to file the present writ petition, hence, the present writ petition is not maintainable. The learned counsel, in support of preliminary objection, invited attention of this Court towards various provisions of the Act. It is further submitted by Sri H.S. Tiwari that as per Section 40 of the Act, the testators or after his death any person claiming as an executor may present the Will for registration and Section 41 of the Act further provides that the Sub-Registrar may register the Will on his satisfaction. Three conditions of the satisfaction are provided (a) a Will was executed by the testator, (b) the testator is dead and (c) the person presenting the will is entitled to present the same. The Sub-Registrar may accept the registration of Will or deny the same and in case of denial, the reason for denial is to be recorded under the provisions of Section 71 of the Act. In case registration is refused, the person aggrieved has a right to prefer an appeal under Section 72 of the Act before the Registrar. In case, the appeal is dismissed, then remedy is available to file a civil suit as per the provisions of Section 77 of the Act.
Sri Tiwari further submitted that in the Registration Act, 1908, there is no provision which provides that any other person can make objection against the registration of a Will Deed and similarly there is no provision in the Act, which provides that in case appeal is allowed then any remedy is available to the objector. Sri Tiwari also relied upon the Division Bench judgment of this Court reported in 1998 (Suppl) R.D. 438, Km. Sushila Saxena vs. Sub-Registrar, Shahjahanpur & others, in which it has been held that registration is merely a notification of factum of execution of documents evidencing the event of transaction affecting the title qua any person or property. The registration of Will is the matter in between the person presenting it and the Registering Authorities, third person does not have any concern or right to object the registration. Any person, if aggrieved, may challenge the legality of the transaction covered by the Will. It is also submitted by the learned counsel for the opposite party no.2 that the petitioners have not approached this Court with clean hands as the petitioners have preferred a regular suit for cancellation of Will Deed before the Civil Judge, Junior Division, Court No.16, Raebareli i.e. Regular Suit No. 1028/ 2009 and this matter of fact has been concealed by the petitioners. Sri Tiwari further submitted that though the objections were invited by the Registrar but this publication is not provided in any of the provision of the Act and petitioner no.1, Krishna Kumar was not entitled to prefer any objection before the Sub-Registrar. It is also submitted that the answering respondent is the legal heir of late Smt. Shiv Pati Devi on basis of the Will. It is further submitted that though the deponent does not belong to family of late Shiv Pati Devi and she is neighbour of late Shiv Pati Devi. The husband of late Shiv Pati Devi died during life time of Smt. Shiv Pati Devi. After the death of husband of late Shiv Pati Devi, she was being looked after by the deponent, hence late Shiv Pati Devi had executed a Will Deed in favour of the answering respondents. It is also submitted that the Sub-Registrar in its order dated 27.06.2009 ignored the witnesses and affidavit of Smt. Shiv Kumar and Mihi Lal, who were the marginal witnesses of Will deed. After the appellate order dated 09.11.2009, the Will Deed has been registered on 13.11.2009 by the Sub-Registrar. Lastly, the answering respondents submitted that none of the grounds, taken in the writ petition, are tenable in the eyes of law, hence, the writ petition deserves to be dismissed.
Learned counsel for the petitioners, in his reply, reiterated his earlier arguments.
I have considered the arguments of learned counsel for the respective parties and gone through the record.
The provisions regulating the presentation of documents for registration, other than Wills and authorities to adopt the procedure, are contained in Sections 32, 33, 34 and 35 of the Act and regarding the Wills and authorities the procedure to be adopted by the authorities are contained in Sections 40 and 41 of the Act, which reads as under:-
“40. Persons entitled to present wills and authorities to adopt. - (1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration.
(2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub-Registrar for registration.”
“41. Registration of wills and authorities to adopt. - (1) A will or any authority to adopt, presented for registration by the testator or donor may be registered in the same manner as any other document.
(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered, if the registering officer is satisfied :-
(a) that the will or authority was executed by the testator or donor, as the case may be ;
(b) that the testator or donor is dead; and
(c) that the person' presenting the will or authority is, under Section 40, entitled to present the same.”
From perusal of Sub-section 1 of Section 40 of the Act, it is evident that the testator, and after his death, the person claiming as executor or otherwise under a Will is entitled to present the Will and as per the provisions of Sub-Section (1) of Section 41 of the Act a Will presented by the testator has to be registered by the Registering Authority in the same manner as any other document i.e. after complying the provisions of Sections 32, 33, 34 and 35 of the Act. Sub-section (2) of Section 41 of the Act envisages that the Will presented by any person, other than the testator, entitled to present, has to be registered by the Registering Authority on his being satisfied about the following three conditions; (i) that the Will has been executed by testator; (ii) that the testator is dead; and (iii) that the person presenting the Will is, under Section 40, entitled to present the same. It is not disputed that in the present case the testator has died. It is also not disputed that the opposite party no.2, who presented the Will before the Sub-Registrar for registration, under Section 40 (1) of the Act, entitled to present the same. At this stage, the satisfaction of the Sub-Registrar about the factum of execution of Will by the testator is only required. The satisfaction of the Registering Authority about execution of a Will by the testator is provided in Sub-Section (2) of Section 41 of the Act, which can be achieved by examining the attesting witnesses and the scribe, who are the person most competent to testify in this regard. Neither the petitioners nor any other person can be, by any stretch of imagination, held to be the person or persons competent to testify the factum of execution of Will. They may be competent to challenge the legality of the transaction covered by the Will. The registration of a documents, is merely a notification of factum of execution of a document evidencing the event of transaction affecting the title qua any person or property. The registration has nothing to do with the legality of the transaction covered by the document, which may be open to challenge by the affected person in appropriate proceedings at proper forum. In view of the above discussion, I am of the considered view that as per the scheme of the Act, the petitioners are not legally entitled to object the registration of Will and they are totally strangers to the said proceedings. I do not find any illegality in the order dated 09.11.2009, passed by the Appellate Authority under Section 72 (1) of the Act. In the result, the petition fails and the same is hereby dismissed. The interim order dated 04.12.2009 stands discharged. There shall be no order as to costs.
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