Wills and Authorities to Adopt under Sections 40 and 41 of the Registration Act, 1908: Who May Present, What the Officer Must Be Satisfied Of, Registration Against Proof, and a Will Compared with a Gift or Settlement Deed

Sections 40 and 41 supply the procedure for the two documents the Act treats specially: a will, which is optional to register and may be presented at any time, and an authority to adopt, which under Section 17(3) must be registered unless it is conferred by a will. Section 40 says who may present them, and Section 41 what the registering officer must be satisfied of, which differs according to whether the testator is alive. The procedural detail matters less than the point it leads to: registration records a will, it does not prove it, and the character of a document is decided by its contents and not by its name.

Who may present, what the officer must be satisfied of, and the limit of what registration achieves

1. Who May Present: Section 40

Section 40, Registration Act, 1908

(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, and the adoptive son, may present it to any Registrar or Sub-Registrar for registration.

Any Registrar or Sub-Registrar. The territorial restriction in Section 28 does not apply to a will, because a will is not a document affecting immovable property until it takes effect.
In the testator's lifetime only he may present it, which preserves the confidentiality of a document he may still revoke.
After his death an executor, or any person claiming under the will, may present it. A beneficiary is such a person.
For an authority to adopt, the donor in his lifetime, and after his death the donee and the adoptive son.
No time limit applies, because Section 27 takes wills outside Sections 23 to 26.

2. What the Officer Must Be Satisfied Of: Section 41

Section 41, Registration Act, 1908, in substance

(1) 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 an 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 testator or donor is dead; (b) that the will or authority was executed by the testator or donor; and (c) that the person presenting it is entitled to present it under Section 40.

Presented by the testator, the will is registered in the ordinary way, and the enquiry is the usual one under Sections 34 and 35 into identity and admission of execution.
Presented after death, the officer has three matters to satisfy himself of, and may use the powers in Sections 36 to 39 to summon and examine attesting witnesses.
Proof of death is usually established by a death certificate or other reliable evidence.
Proof of execution at this stage is the officer's satisfaction, not a judicial finding, and it binds nobody in later litigation.
The document goes into Book 3, and Section 57(2) restricts inspection of that book during the testator's lifetime.

3. Registration Against Proof

📖 Rani Purnima Devi v. Kumar Khagendra Narayan Dev, AIR 1962 SC 567

Facts: A will was propounded which had been registered. It was surrounded by circumstances that raised suspicion about whether the testator had known and approved of its contents, and it was argued that registration itself answered those doubts.

Held: The Supreme Court held that the mere registration of a will does not dispel suspicious circumstances. Registration is a relevant circumstance and may add to the genuineness of a will, but it does not by itself prove execution, or that the testator knew and approved the contents. Where suspicion attaches, the propounder must still remove it.

Ratio: A registered will must be proved like any other, and registration does not relieve the propounder of the burden of dispelling suspicious circumstances. Citation to be verified before publication.

	Registered will	Unregistered will
Validity	Valid	Equally valid; registration was never compulsory
Proof required	Due execution and attestation must still be proved	The same
Advantage	A permanent public copy, an official record of the date and of the testator's appearance	None of these
Revocation	May be revoked by a later will, registered or not, by a codicil, or by destruction	The same
Probate	Still required where Section 213 of the Succession Act applies	The same

4. A Will Compared with a Gift or Settlement Deed

A will takes effect on death and is revocable until then. A gift and a settlement operate at once and are ordinarily irrevocable.
Registration follows that difference. A gift of immovable property must be registered under Section 17(1)(a) and Section 123 of the Transfer of Property Act; a settlement creating rights in praesenti falls within Section 17(1)(b); a will is optional under Section 18(e).
The label does not decide. A document called a will which transfers property immediately is a settlement or gift, and requires registration. A document called a settlement which is to operate only on death is testamentary.
The court looks for two things: whether the disposition takes effect now or on death, and whether the maker retained the power to revoke.

📖 Mathai Samuel v. Eapen Eapen, (2012) 13 SCC 80

Facts: A document styled as a will was relied on as having transferred property. Its terms suggested that rights had passed during the executant's lifetime, and the question was whether the document was testamentary or a settlement.

Held: The Supreme Court held that the nomenclature is not decisive. The court must read the document as a whole to determine its true character, looking at whether it creates rights in praesenti or only on death, and whether it is revocable. A document that transfers rights immediately is a settlement, whatever it is called, and must be registered accordingly.

Ratio: The character of a document is determined by its contents and not by its title or by the fact of registration. Citation to be verified before publication.

5. The Position Stated Shortly

Section 40: a will may be presented by the testator, or after his death by an executor or a person claiming under it, to any Registrar or Sub-Registrar.
An authority to adopt may be presented by the donor, and after his death by the donee and the adoptive son.
Section 41(1): a will presented by the testator is registered in the ordinary way.
Section 41(2): presented after death, the officer must be satisfied of the death, the execution, and the presenter's entitlement.
Registration of a will is optional, and Section 27 sets no time limit.
Rani Purnima Devi: registration does not dispel suspicious circumstances, and the will must still be proved.
Mathai Samuel: the character of a document depends on its contents, not its name.
A registered will may be revoked by a later unregistered one, and probate may still be needed.