My father will is not registered
Querist :
Anonymous
(Querist) 29 November 2011
This query is : Resolved
Dear Experts,
My father passed away and had writen a will mentioning that all the property should enjoy only (Not Transferable or can not be sale) by my mother and after my mother all the cash and property should belong me.
I have 3 sisters and I am the youngest.
The will is Witnessed by Two of my father's friends, but it not registered.
Now I need to know.
1. The Two of the Witnesses are also Very old. if they also passes away how do present them, if any of my sisters challenges on the court?
2. Since my father is not registered, who can register the will now?
3. Do i need to take those two witness also while doing registration?
Please let me know what is the legal steps that i need to ensure property belongs to me as per my father will after my mother.
Thanks
-KN-
ajay sethi
(Expert) 29 November 2011
it is not necessary that will should be registered . registration is optional .
since your father is dead it cannot be registered now .
make an application for probate .
Arvind Singh Chauhan
(Expert) 29 November 2011
Please Sethi Sir relating to this query remove my confusion also, as the Registration Act provides below-
S.40] REGISTRATION ACT, 1908
PART VIII
OF PRESENTING WILLS AND AUTHORITIES TO ADOPT
40. Persons entitled to present wills and authorities to adopt.-
(l) 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.-
(l) a will or an 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.
Rajeev Kumar
(Expert) 29 November 2011
Registration of will is optional. Though your deceased father has made a will then apply for probate of will before the respective court
Rajeev Kumar
(Expert) 29 November 2011
@arvind in the above mention section in40(1) 40(2) and 41(1)the word used is may which doesn't mean must so the registration is optional depends upon the wish
Querist :
Anonymous
(Querist) 29 November 2011
Okey, then in my father will, my mother can enjoy the all the benefits(Neither Transferable nor Sale) after my mother it I will get owner ship can Transferable or sale.
In this case,
who can go for probation? Is it me? or my mother?
Thanks
-KN-
Querist :
Anonymous
(Querist) 29 November 2011
I mean "Probate"
Devajyoti Barman
(Expert) 29 November 2011
The executor or in his absence any of the beneficiary can apply for probate.
1. Even on death of witnesses the Will can be proved by evidence other witnesses.
2 &3. It can be registered only during the lifetime of the testator. If your father is dead you can not get registered any more.
Querist :
Anonymous
(Querist) 29 November 2011
Thank you all
M/s. Y-not legal services
(Expert) 29 November 2011
yes. her after you can not register the will..
if there is any more problem mean just file a suit for declaration that your father's will is valid one. by the witness peoples you can prove it.,
if the witness peoples also passed away mean you can prove the signtures though other documents or related persons to the subject signatures
Arvind Singh Chauhan
(Expert) 29 November 2011
I would like to ask to members what does Sec 40 opines as i refereed above-
as " Persons entitled to present wills and authorities to adopt.-
(l) 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. "
Dosen't mean that will may be registered even after death of testator ??
Querist :
Anonymous
(Querist) 30 November 2011
Hi All,
Please some one clarify Aravinds Point?
Thanks
KN
Sailesh Kumar Shah
(Expert) 30 November 2011
@Mr.Arvind
Moti Ram vs Rittoo on 17 September, 1968
Equivalent citations: AIR 1969 Delhi 134, 4 (1968) DLT 586
Bench: H Hardy
ORDER
1. The petitioners Motiram and Brijlal have filed this application under Article 227 of the Constitution in which they pray that the order of the Sub-Registrar, Banjar, District Kulu dated August 18, 1966 whereby he refused to register the will executed by Mst. Dilba-roo on December 13, 1965 and confirmed on appeal by the Registrar, Kulu District by his order dated January 16, 1967 be set aside and a direction be issued to the Sub-Registrar to admit the said document for registration. The brief facts as stated in the order of the Registrar are that Mst. Dilbaroo was the owner of certain property. She died on December 22, 1965. The petitioners alleged that before her death she had made a will bequeathing the property to them. After the death of Mst. Dilbaroo the petitioners presented the will before the Sub-Registrar, Banjar, District Kulu under Sections 40 and 41 of the Indian Registration Act, 1908 for registration. Smt. Rittu Devi daughter of Mst. Dilba-roo deceased opposed the registration of the will and filed her written statement on January 29, 1966 but she did nto raise any objection on the ground that the will was nto written by a licensed deed-writer.
2. The petitioners examined 5 witnesses before the Sub-Registrar including Devi Singh (PW-1) who is the scribe of the will and Jaishi Ram and Man Singh who had attested the will. Mohan Singh Prohit who had performed the last religious rites of the deceased was also produced as a witness. The Sub-Registrar however refused to accept the will for registration on the ground that Devi Singh who had written the will was nto a licensed document writer. The order of the Sub-Registrar was confirmed on appeal by the Registrar, District Kulu and has now been challenged by the petitioners in this Court.
3. The Sub-Registrar has declined to accept the will for registration on the basis of Rule 3 framed by the Inspector-General of Registration, Punjab in exercise of the power conferred on him by clause (bb) of sub-section (1) of S. 69 of the Indian Registration Act, 1908. The said rule reads as under:
"3. Persons by whom documents may be written-
(1) After a month of the publication of these rules in the official Gazette no person shall practise as a document- writer except under a license granted by the Licensing Authority.
(2) No registering officer shall accept any document for registration which is nto written by a licensed document-writer or the executant himself."
4. Learned counsel for the petitioners has argued that sub-rule (2) of Rule 3 is ultra vires inasmuch as it is in excess of the rule-making power of the Inspector General of Registration under Section 69 of the Registration Act. In order to appreciate the argument of the learned counsel it is necessary to set out the history of this rule. It appears that formerly there was no check on the writing of deeds and applications falling under the Indian Registration Act and also on the fees charged by the deed-writers. Often, people with little experience and knowledge of the laws on Stamp and Registration, used to write out those documents at very high rates. To remedy this evil the Indian Registration Act was amended by enacting the Indian Registration (Punjab Amendment) Act, 1961 in its application to the State of Punjab. One of the amendments introduced by the said Act was to amend Section 69 of the Indian Registration Act, 1908 by inserting in sub-section (1) of Section 69 of the principal Act, after clause (b), the following clause, namely:
"(bb) declaring what persons shall be permitted to act as document-writers in the offices of registering officers, regulating the issue of licenses to such persons, the conduct of business by them, the scale of fees to be charged by them and determining the authority by which breaches of such rules shall be investigated and the penalties which may be imposed."
5. Pursuant to the powers conferred by the aforementioned Section 69 the Inspector-General of Registration, Punjab with the previous approval of the Governor of Punjab made certain rules called the Punjab Document Writers Licensing Rules, 1961. Clause (1) of R. 3 prohibits persons from practicing as document-writers except under a license granted by the Licensing Authority. Clause (2) prohibits the registering officer from accepting any document for registration which is nto written by a licensed document-writer or the executant himself.
6. Sub-rule (2) of Rule 1 excludes the application of these rules to legal practitioners. Rule 4 lays down conditions of eligibility for being licensed as document-writer or, if licensed, to continue as a document-writer. Rule 5 prescribes academic qualifications necessary for obtaining a license. Rules 6 and 7 deal with holding of a special examination and with applications for permission to take that examination. Rule 8 provides for scrutiny of applications to sit in the examination while Rule 9 prescribes the syllabus for special examination. These rules are followed by rules for issuing licenses, prescribing the highest fees chargeable by document-writers, conditions of license and penalties for breach of conditions of license. Rule 2 (b) defines a document. It reads:
"(b) 'document' means a document written for presentation to a registering officer and includes an application for copy, inspection, search, extension of period and issue of summons or warrants and an application under section 73 or a memorandum of appeal under S. 72 of the Act;"
Rule 2(c) defines a document-writer. It reads:--
"(c) 'document-writer' means a person holding a license for practicing as a writer of documents for hire. "
7. Examination of these rules makes it clear that the will presented by the petitioners is a document within the meaning of that term as defined in Rule 2(b). There is also no doubt that if Rule 3(2) is a valid rule the Sub-Registrar was perfectly justified in refusing to accept the will presented by the petitioners for registration as the same is admittedly nto written by a licensed document-writer or by the executant herself.
8. The question for consideration however is whether Rule 3(2) is a valid rule.
9. The contention of the learned counsel for the petitioner is that the conditions necessary for the presentation of a will for registration are laid down in Sections 40 and 41 of the Indian Registration Act. Under Section 40(1) the will may be presented for registration by the testator or after his death by any person claiming to be his executor or otherwise under the will. Under Section 41(1) a will when presented for registration by the testator has to be registered in the same manner as any other document. The condition that the will must either be written by the executant by himself or by a licensed document-writer is nto one of the conditions which is necessary for the purpose of presentation and registration of the will. If the will is presented for registration by the testator it is to be registered in the same manner as any other document i. e. that the registering officer may satisfy himself by following the procedure laid down in Section 35 of the Act and he may make an enquiry as to the minority or sanity of the testator, etc. But when the will is presented for registration by any other person entitled to present it the registering officer is bound to register the same under subsection (2) of Section 41 if he is satisfied that the will was executed by the testa- tor, that the testator is dead and the person presenting the will is under Section 40 entitled to present the same.
10. In the present case all these requirements were satisfied. The petitioners who had presented the will were entitled to present the same under Section 40 of the Act. They also led evidence to show that the will was executed by the testatrix and that she was dead. The requirements of Sections 40 and 41 of the Act having thus been satisfied there is no other requirement of the Act which still remained to be satisfied and thus stood in the way of the document being accepted for registration.
11. Section 69 of the Registration Act confers powers on the Inspector-General to frame rules but the rules made by him must be consistent with the Act and they must also be strictly in accordance, with the authority conferred by the statute. Clause (bb) of sub-section (1) of Section 69 permits the framing of the rules declaring what persons shall be permitted to act as document-writers in the offices of the registering officers, regulating the issue of licenses to such persons, the conduct of business by them, the scale of fees to be charged by them and determining the authority by which breaches of such rules shall be investigated and the penalties which may be imposed. The object of the rules therefore is to regulate the practice and profession of document-writers. The use of the expression "in the offices of the registering officers" may nto be strictly construed to include only those persons who shall be permitted to act as document-writers by accommodation being provided to them in those offices and may well include even other persons who may nto be sitting in the offices of registering officers but may still be writing documents which ultimately come up for registration. But the arnbit of the rules can by no means be extended to prohibit all persons other than licensed document-writers from writing' such documents.
The rule-making power under this clause certainly permits the laying down of the condition that after the publica-tion of the rules no person shall practise as a document-writer except under a license granted by the Licensing Authority. It also brings within its sweep the eligibility of persons to be licensed, the academic qualifications for obtaining a license, the holding of an examination, the scale of fees to be charged, the conditions subject to which a license may be granted and the penalties for breach of those conditions; but there is certainly no warrant for a rule which provides that no registering officer shall accept any document for registration which is nto written by a licensed document-wri-ter or by the executant himself. As such the rule, in my opinion, has nothing to do with 'regulating the practice and profession of document writing and it also amounts to the creation and imposition of an additional requirement which is nto to be found in the Act itself.
12. Learned counsel for the Registrar argued that the policy and object of the Registration Act is to prevent fraud and to ensure conditions that the documents and deeds which purport to be executed by persons are actually executed by them. According to Section 52(1)(c) of the Indian Registration Act, 1908 all documents registrable under the Act are copied in relevant books before they are returned to the executants. Documents written by unlicensed document-writers often raise problems of authenticity and genuineness. The rules framed are therefore consistent with the object of the Act. Just as the Courts of law refuse to grant audience to any person who is nto a legal practitioner to appear and plead the case of a litigant in much the same way the impugned rule prohibits registering officer from accepting documents written by unlicensed document-writers.
13. The analogy between the case of a licensed document-writer and a legal practitioner, is in my opinion wholly inept. The embargo in the case of a person other than a legal practitioner is created by a statute and is in express terms. It is nto there under any general principle of law or by virtue of a rule made under a statute without there being any prohibition in the statute itself. Its validity is therefore referable to the presence of power in the relevant statute and nto to the rule de hors the statute.
14. In the present case sub-rule (2) of Rule 3 obviously travels outside the powers conferred by clause (bb) of subsection (1) of Section 69 as it nowhere provides that the registering officers shall refuse to accept documents written by persons other than licensed document-writers. The scope of rule-making authority is strictly confined to rules declaring what persons shall be permitted to act as document-writers, the licensing of such persons and other matters incidental thereto.
15. I therefore agree with the learned counsel for the petitioners that sub-rule (2) of Rule 3 of the Punjab Document Writers Licensing Rules, 1961 is ultra vires inasmuch as it travels beyond the limits prescribed for rule-making authority by clause (bb) of Sub-section (1) of S. 69 of the Indian Registration Act, 1908. Since the registration of the document has been refused by the registering officer on this ground also the order made by him and confirmed on appeal by the Registrar is set aside and the Sub-Registrar, Banjar is directed to proceed with the registration of the document in accordance with the provisions of Sections 40 and 41 of the said Act.
16. Order accordingly.
