Allahabad HC Strikes Down Compulsory Will Registration Clause

Allahabad HC Strikes Down Compulsory Will Registration Clause

The Allahabad High Court has invalidated a portion of Section 169 of the UP Zamindari Abolition & Land Reforms (UPZA & LR) Act, 1950. This pertains to the mandate for registering wills, as outlined in sub-Section (3) of the Act.

"A Will for its non registration will not be void whether before or after the U.P. Amendment Act, 2004", held the division bench of Justices Ajit Kumar and Siddhartha Varma.

The 2004 amendment to the UP Zamindari Abolition & Land Reforms (UPZA & LR) Act introduced new provisions, specifically Section 169(3), mandated by the State legislature, which made the registration of Wills compulsory.

In a particular case, a single judge bench of the high court encountered conflicting opinions from two co-ordinate benches. One opinion, as observed in the case of Sobnath Dube (In the Matter of: Late Kashinath Dube; reported in 2015), ruled that the 2004 amendment to the Act would have prospective application. Accordingly, Wills executed prior to the effective date of the amendment by the State Government would not be required to be compulsorily registered.

In the case of Jahan Singh, the viewpoint was established that since the effectiveness of a Will only occurs upon the death of the testator, any Will that might come into effect after the 2004 amendment of the Act must be compulsorily registered.

Therefore, in order to resolve the conflict between the two contradictory views, the single judge bench referred the matter to the present division bench for further consideration and adjudication.

The division bench reframed the reference as: "Whether a Will reduced into writing prior to 23.08.2004 is required to be compulsorily registered in the event the testator dies after the said date."

Furthermore, during the hearing, another issue emerged regarding whether the State legislature could have made the registration of Wills compulsory without the President's assent. This arose from the fact that matters related to Wills, intestacy, and succession fall within the Concurrent List of the Constitution. Additionally, Central Legislation already existed pertaining to the registration of Wills under the Registration Act, 1908.

"Thus, a poor farmer may be compelled to knock the door of Courts of law and undergo the agony of a long drawn litigation where rich may have an upper hand," said the bench.

The division bench emphasized that matters concerning Wills, intestacy, succession, and transfer are within the Concurrent List as per the Constitution of India. Additionally, it was noted that the Indian Registration Act retains authority over the subject matter of registration, specifically concerning deeds and documents, as outlined in Entry-8 of List III of the Government of India Act, 1935, which corresponds to Entry-6 of the Concurrent List.

The division bench highlighted that the Registration Act, 1908 does not specifically include Wills in the list of documents that are mandatory for registration. Instead, it allows for the optional registration of Wills at the discretion of the testator. Furthermore, provisions within the Act even allow for the posthumous registration of Wills, as outlined in Section 40 of the Registration Act.

Therefore, the court ruled that sub-Section (3) of Section 169 of the Act of 1950, which mandates the compulsory registration of Wills, is in conflict with Section 17 read with Section 40 of the Indian Registration Act, 1908. Consequently, the court declared the amendment of Section 169(3) of the U.P.Z.A.L.R. Act, to the extent that it requires compulsory registration of Wills, as void, and struck down that portion of the provision.

"...sub-Section (3) of Section 169 having been declared as void to the extent it provides for registration of Will, the Wills in State of Uttar Pradesh are not required to be registered and a Will for its non registration will not be void whether before or after the U.P. Amendment Act, 2004," the bench concluded. 

Case Title: Pramila Tiwari v. Anil Kumar Mishra And 4 Others



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