Registration of “WILL” not mandatory, Allahabad High Court.

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Rajesh Pandey

The Allahabad High Court has held that registration of the ‘Will’ is not necessary in the state. The Uttar Pradesh government had made registration of wills mandatory from 23 August 2004.
“Wills in Uttar Pradesh are not required to be registered and a ‘Will’ for its non-registration will not be void whether before or after the UP Amendment Act, 2004”, the court added.

While deciding a Reference, a division bench comprising Justice Siddhartha Varma and Ajit Kumar held that sub-section 3 of section 169 of UP zamindari abolition and land reforms Act will be void to the extent it provides for registration of ‘Will’. Now the high court has made it clear that if the will is not registered, then it will not be invalid. The division bench has given this judgement on May 10 while disposing of a ‘Reference’ sent to it by the Chief Justice in the petition filed by one Pramila Tiwari.

The high court held that sub-section 3 of Section 169 of the UP zamindari abolition and land reforms Act, 1950 in so far as it requires a ‘Will’ to be compulsorily registered to be contrary to the central legislation- Indian Registration Act, 1908, which makes the registration of Will only optional at the end of the testator. Hence, the court held the amendment of section 169 (3) of 1950 Act to that extent it required a ‘Will’ to be compulsorily registered void and accordingly struck down the said part.

The then government had made registration of ‘Wills’ mandatory from 23 August 2004. Now with this judgment, the high court has made it clear that if the ‘Will’ is not registered then it will not be invalid.

In the Shobhnath case, the high court has said that registration of the will has become necessary after the law came into force. But in Jahan Singh case it was said that the will becomes effective after death. Therefore, it should be registered at the time of presentation.

To clear up the two contrary views, the chief justice sent a reference to the above division bench of high court, which summed up the issue as “Whether a ‘Will’ reduced into writing prior to August 23, 2004 is required to be compulsorily registered in the event the testator dies after the said date”.

During the court proceedings, the court examined as to whether the state legislature without President’s assent could have made registration of ‘Will’ compulsory by incorporating a provision to this effect in law, as Will, intestacy and succession under the Constitution of India fell as subject matter in the Concurrent List and central legislation was already there touching the subject of registration of ‘Will’ under Registration Act 1908.

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