CIVIL APPEAL 395 of 1999 on 17 March 1978

1. When the Sub Registrar refused to register the Will and the Registrar, exercising powers of the Appellate Authority also endorsed refusal, could the provisions of Indian Registration Act be invoked Will and the Registrar, exercising powers of the Appellate Authority also endorsed refusal, could the provisions of Indian Registration Act be invoked by the plaintiff-respondent for seeking a declaration from the Civil Court for giving directions to such authorities for registration of the Will, which is not a document compulsorily registrable?

2. When the Sub Registrar, refused to register the Will on the ground of non-satisfaction of due execution and attestation, could the plaintiff succeed in the Civil Court without proving the due execution and attestation of such document as envisaged under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act? Will on the ground of non-satisfaction of due execution and attestation, could the plaintiff succeed in the Civil Court without proving the due execution and attestation of such document as envisaged under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act?

5. Adverting to these questions, the important point raised by the learned counsel appearing for the appellant is that no suit was maintainable under Section 77 of the Indian Registration Act as a Will is not a compulsorily registrable document. For this purpose, learned Senior counsel relied upon the decision of the Full Bench of Andhra Pradesh in Padala Satyanarayana Murthy vs. Padala Gangamma and others, AIR 1959 Andhra Pradesh 626 holding:

“24. Quite apart from that, we cannot conceive the section as applying to wills. That section contemplates only compulsory regitration, which implies that some one should be compelled to register the documents. In regard to a will, there is no one who could be compelled to get it registered. Thus, section 77 applies to instruments inter vivos only and considerations that pertain to such documents are not pertinent to wills. Section 77 is thus out of the way in regard to wills. It should also be remembered that the procedure governing documents of transfer is different from that relating to wills. Under Section 23 of the Act, a document has to be presented within four months of its execution, while no time limit is prescribed for wills under Section 27.

Under section 41 which lays down the procedure for the registeration of wills, the enquiry is of a limited character. Under Sub-section 2, before registering the document, the Registering Officer has to satisfy himself that the will or authority was executed by the testator or donor as the case may be that the testator or donor is dead and that the person presenting the will or authority is, under Section 40, entitled to present the same. It is seen that the only question to be gone into by the Registering Officer is whether the will was actually executed by the testator or not. The mental capacity of the testator is beyond the scope of that enquiry. Therefore, the registration of the will doe not dispense with the necessity of the propounder to prove that the will represented the intentions of the testator.

It is for the propounder of a will to prove not only that the will was executed by the testoator but that it was done while he was in a sound and disposing state of mind. Therefore, registration by itself would not enable the propounder of a will to seek possession of the property. For these reasons, we feel that section 77 of the Registration Act is inapplicable to wills. On this discussion, it follows that the plaintiff is not precluded from maintainaing a suit for certain reliefs based on the unregistered will by reason of his failure to have recourse to section 77 of the Act. Therefore, the rejection of the plaint on this ground cannot be sustained.” (at p. 631)

6. Learned Senior counsel also relies upon the decision of the Division Bench of the same Court in Ryali Kameswara Rao vs. Bendapudi Suryaprakasarao and others AIR 1962 Andhra Pradesh 178 holding that the Will is not compulsorily registrable document under the Act. In particular, he emphasized on the findings of the Court as under:

“(62) It is also suggested that the non-registration of the will is a very material circumstance against its truth and the explanation offered for non-registration is palpably false. It is elementary that will is not one of the instruments that should be registered compulsorily…..” (at p. 187)

7. No law contrary to what has been stated in these two judgments has been brought to my notice. On the question of law as raised, I hold that suit for compulsory registration of the Will under Section 77 of the Act was not maintainable in view of the Full Bench decision of the Andhra Pradesh High Court in Padala Satyanarayana Murthy vs. Padala Gangamma and others, AIR 1959 Andhra Pradesh 626.

8. Adverting to the two orders Ext.PX and Ext.PY passed by the Registring Authority as also the Appellate Authority, I find that they have exceeded their authority and jurisdiction under law in conducting a meticulous inquiry for arriving at a decision on the merits and validity of the execution of the Will. It is because of the assumption of jurisdiction not vested in law that the plaintiff-respondent was called upon, rather forced to institute the suit calling upon these authorities to register the Will.

9. On the two points decided by me namely that the suit was not maintainable and secondly that the Will is not compulsory registrable, I can not persuade myself to hold that the Act or any provision under it, more especially Section 40 and 41 of the Act, vest powers either with the Registering or the Appellate Authority to conduct a meticulous inquiry for pronouncing on the validity of the instrument. That is the domain of a Civil Court of competent jurisdiction to grant a declaration when such a Will/instrument is presented as granting a right to the propounder, to succeed to the property of the testator. It is now well settled that mere registration of the Will by itself does not exonerate the propounder from establishing its due execution under the provisions of the Indian Succession Act when challenge to that Will is made. In these circumstances, both orders Ext.PX and Ext.PY are set aside.

10. It is also trite that any findings/orders arrived at/passed by the Registrar does not constitute resjudicata under Section 11 of the Code of Civil Procedure. (See Smt. Uma Devi and others vs. Narayan Nayak and others AIR 1985 Orissa 96). 11. This appeal is accordingly disposed of. Two questions of law as raised are answered accordingly as follows:

(a) the suit instituted by the respondent-plaintiff was not maintainable, under Section 77 of the Act; (b) two orders Ext.PX and Ext.PY passed by the Registering Authority as also the Appellate Authority are illegal and beyond the jurisdiction of these authorities and are therefore quashed and set aside, (c) it will be open to either party to establish that the Will was duly executed/not executed in accordance with law, as and when such challenge is made. Appeal stands disposed of. There shall be no order

12. as to costs.

December 15[th], 2010(ms)

(Dev Darshan Sud) Judge