REG 044 Will and Registration — Law of Registration Notes for Judiciary

The Will and Registration: Why Registration Is Optional, Why a Registered Will Is Not a Proved Will, and How Probate Differs From Registration

A will is the one important instrument that the Registration Act deliberately leaves alone. Section 17(2)(b) takes wills out of compulsory registration, Section 18(e) makes them optionally registrable, Section 27 allows a will to be presented at any time, Sections 40 and 41 provide for presentation after the testator's death, and Sections 42 to 46 allow a will to be deposited in a sealed cover instead of being registered at all. The reason for this special treatment is that a will is ambulatory: it speaks only from death and is revocable until then, so there is nothing settled for the register to record. The consequence, which is the practical heart of this note, is that registration proves remarkably little about a will.

Registration is optional, and what still has to be proved whether the will was registered or not

1. Registration of a Will Is Optional

Sections 17(2)(b), 18(e) and 27, Registration Act, 1908

17(2)(b). Nothing in clauses (b) and (c) of sub section (1) applies to any instrument relating to shares in a joint stock company, and nothing in that sub section applies to a will.

18. Documents of which registration is optional. Any of the following documents may be registered under this Act, namely: (e) wills.

27. Wills may be presented or deposited at any time. A will may at any time be presented for registration or deposited in manner hereinafter provided.

There is no time limit. The four month rule in Section 23 does not apply to wills, and Section 27 says so expressly. A will may be presented the day after it is made or twenty years later, and may be presented after the testator's death.
A will may be presented after death by the executor or by any person claiming as executor or otherwise under the will, under Section 40(1).
The registering officer must satisfy himself of the fact of execution, of the death of the testator where the will is presented after death, and of the identity of the presentant, under Section 41.
A will may instead be deposited in a sealed cover under Sections 42 to 46, which is a wholly different procedure from registration: the officer does not read or copy the will, he merely keeps it.
A will deposited may be withdrawn by the testator during his lifetime under Section 44, and after his death the cover may be opened on application under Section 45.

2. An Unregistered Will Is Not Invalid

Nothing in the Registration Act or in the Indian Succession Act, 1925 makes registration a condition of the validity of a will. Section 49 has no application, because Section 49 operates only on documents required by Section 17 or by the Transfer of Property Act to be registered, and a will is not such a document. An unregistered will is as good a will as a registered one, and is proved in exactly the same way.

Section 63, Indian Succession Act, 1925, in substance

63. Execution of unprivileged wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or a mariner at sea, shall execute his will according to the following rules:

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark, or has seen some other person sign the will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Attestation by two witnesses is mandatory, and it is a requirement of the Succession Act, not of the Registration Act. Registration does not supply it and cannot cure its absence.
A will attested by only one witness is void, however solemnly it was registered.
A legatee should not be an attesting witness. Under Section 67 of the Succession Act, a bequest to an attesting witness, or to his or her spouse, is void, though the will itself and the attestation remain good.
No stamp duty is payable on a will, and none on a codicil.
A will may be written on any paper, in any language, and in any form, provided Section 63 is satisfied. There is no prescribed form.

3. A Registered Will Is Not a Proved Will

This is the proposition that matters most, and it disappoints a great many people. Registration is not evidence that the testator was of sound disposing mind, that he was free from coercion or undue influence, that he understood and approved the contents, or even, in a case of forgery, that he signed at all. What the registering officer does under Section 34 is to satisfy himself of the fact of execution and of the identity of the executant. He conducts no enquiry into capacity, into the circumstances, or into the truth of the dispositions, and he has no machinery to do so.

Registration of a will shows	Registration of a will does not show
That a document in those terms existed on the date of registration	That the testator had a sound disposing mind
That the person who presented it did so, and was identified	That he understood and approved the contents
That the executant, if he appeared, admitted execution	That he was free from coercion, fraud or undue influence
That the will has been in existence since a fixed date, which answers a charge of recent fabrication	That the will was attested as Section 63 requires
That a certified copy is available under Section 57 if the original is lost	That the will is the last will of the testator

Registration is a circumstance in favour of genuineness, and courts have treated it as one, particularly where the testator appeared before the Sub Registrar and admitted execution. It is evidence; it is not proof.
It cannot outweigh proved suspicious circumstances. Where the court's conscience is not satisfied, the fact of registration does not discharge the propounder's burden.
And it does not dispense with Section 68 of the Evidence Act, now Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, under which a document required by law to be attested shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.

4. Suspicious Circumstances

📖 H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443

Facts. A will was propounded and was resisted on the ground that it was not genuine and that the testator had not been in a fit state to make it. The Supreme Court examined the standard by which a will is to be proved.

Held. The Court held that a will is proved like any other document, by satisfying the court that the instrument was executed by the testator in a sound disposing state of mind, and by complying with Section 63 of the Succession Act and Section 68 of the Evidence Act. But there is one important difference: the testator has died, and cannot depose that he signed it or that he understood its contents. Where the circumstances surrounding the execution excite the suspicion of the court, it is the duty of the propounder to remove the suspicion and to satisfy the conscience of the court that the document is the last will of a free and capable testator.

Ratio. The propounder carries an initial burden of proving due execution and testamentary capacity, and a further burden of dispelling suspicious circumstances where they exist. No amount of formal compliance, registration included, relieves him of the second burden.

1. A shaky or doubtful signature, or a signature differing from the testator's admitted hand.

2. A feeble or clouded mind at the time of execution, or serious illness close to the date of the will.

3. Unnatural, improbable or unfair dispositions, as where the natural heirs are excluded without explanation.

4. The active part taken by the principal beneficiary in the preparation, drafting, attestation or registration of the will.

5. The exclusion of close relations without any reason appearing on the face of the will or in the evidence.

6. Concealment of the will, or its late and unexplained production.

7. Unusual haste in preparing and executing the will, or execution in circumstances that the witnesses cannot explain.

None of these is conclusive, and the presence of a suspicious circumstance does not condemn a will. It shifts the weight of the enquiry: the propounder must explain, and the court must be satisfied. A registered will attended by such circumstances stands no better than an unregistered one.

5. Revocation of a Registered Will

Sections 62 and 70, Indian Succession Act, 1925

62. Will may be revoked or altered. A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.

70. Revocation of unprivileged will or codicil. No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

Registration does not make a will irrevocable. The power of revocation is conferred by Section 62 and cannot be taken away by the act of registering.
A registered will may be revoked by an unregistered later will, because Section 70 does not require the revoking instrument to be registered; it requires it to be executed as a will is executed, that is, signed and attested by two witnesses.
It may equally be revoked by destruction, and the destruction of a registered will revokes it, even though the copy in the register book survives. The copy in Book 3 is a record of what was registered, not the will.
Marriage revokes a will in the cases where Section 69 applies, subject to the exceptions there stated for Hindus, Buddhists, Sikhs and Jains, whose wills are governed by the sections applied to them by Section 57 and Schedule III.
Prudence points the other way. A revocation of a registered will should itself be registered, so that the record shows it. That is a counsel of practice and not a rule of law.

6. A Later Unregistered Will Against an Earlier Registered Will

This is the question that most often comes up in practice, and the answer follows from everything said above. The later will prevails, if it is proved. Registration confers no priority in the case of wills, and Section 48 of the Registration Act has no application, because that section gives a registered document effect against oral agreements relating to the same property, and is framed for instruments that operate from their date. A will operates only from death, and until death there is nothing to which priority could attach.

	Earlier registered will	Later unregistered will
Validity	Valid if executed under Section 63	Valid if executed under Section 63
Effect of registration	Evidence of existence from a fixed date	None; registration was never required
Which prevails	Superseded, so far as the later will is inconsistent	Prevails, being the last will, Section 70
What must be proved	Nothing further if it is not relied on	Due execution, attestation, capacity, and the removal of suspicion
Practical difficulty	None	The propounder must prove it, and the registered will is a circumstance the court will weigh

⚠ The evidential advantage of registration is real, even though it proves nothing

The party relying on the later unregistered will has to prove it. The party relying on the earlier registered one can show that the testator went before a public officer, was identified, and admitted execution, and that the will has existed unchanged since a date that appears on a public record. That is a considerable forensic advantage, and it is why registration is worth doing even though it settles no legal question. The advantage lies in the ease of proof, not in any rule of priority.

7. Will Compared With Gift and With Settlement

	Will	Gift deed	Settlement deed
When it operates	On the death of the testator	At once, on registration and acceptance	At once, on execution and registration
Revocability	Revocable at any time before death, Section 62	Revocable only within Section 126 of the Transfer of Property Act	Irrevocable unless a power of revocation is reserved
Registration	Optional, Sections 17(2)(b) and 18(e)	Compulsory whatever the value, Section 17(1)(a) and Section 123	Compulsory above Rs. 100, Section 17(1)(b)
Attestation	Two witnesses, Section 63 of the Succession Act	Two witnesses, Section 123 of the Transfer of Property Act	Not required by statute
Acceptance	Not required; the legatee may disclaim	Essential during the donor's lifetime, Section 122	Not a statutory requirement
Control over the property meanwhile	The testator retains full power to deal with it	The donor parts with it	The settlor parts with it to the extent settled
Stamp duty	None	Payable under the State schedule	Payable under the State schedule

8. Probate and Registration Distinguished

Probate is a judicial act; registration is an administrative one. Probate is the copy of a will certified under the seal of a court of competent jurisdiction, with a grant of administration of the estate of the testator, under Section 2(f) of the Indian Succession Act, 1925. It establishes the will conclusively as to the appointment of the executor and the validity and contents of the will. Registration establishes nothing of the kind.

	Registration of a will	Probate
Nature	Administrative; an act of the registering office	Judicial; a grant by a court of competent jurisdiction
When	Any time, before or after death, Sections 27 and 40	Only after the death of the testator
Enquiry made	Fact of execution and identity of the executant, Section 34	Due execution, attestation, capacity, and the removal of suspicion
Who may apply	The testator, or after death the executor or a claimant, Section 40	The executor named in the will, Section 222
Effect	A public record of the document	Conclusive as to the appointment of the executor and the validity of the will, subject to revocation
Is it compulsory?	No, optional in every case	Compulsory in the cases covered by Section 213 and 57 read with Schedule III
Does it decide title?	No	No. The probate court decides the factum of the will, not questions of title

📖 Ishwardeo Narain Singh v. Kamta Devi, AIR 1954 SC 280

Facts. In proceedings for the grant of probate, questions were sought to be raised about the title of the testator to the property disposed of by the will.

Held. The Supreme Court held that the court of probate is concerned only with the question whether the document put forward is the last will and testament of a free and capable testator. It does not decide questions of title to the property, nor whether the testator had any right to dispose of what he purported to dispose of. Those questions are for a civil court in a properly constituted suit.

Ratio. Probate establishes the will, not the title. A grant of probate therefore settles no more about ownership than registration does, and the two must not be treated as substitutes for a decree on title.

Section 213 provides that no right as executor or legatee can be established in any court of justice unless probate or letters of administration have been granted, in the cases to which it applies.
Section 57 read with Schedule III applies certain provisions, including Section 213 in part, to the wills of Hindus, Buddhists, Sikhs and Jains made within the territories formerly subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay, or relating to immovable property situate within those territories or limits.
Probate may be revoked for just cause under Section 263, as where the proceedings were defective in substance, or the grant was obtained fraudulently or by making a false suggestion or by concealing something material.
Letters of administration with the will annexed are granted where no executor is named or the executor will not act.

9. The Position Stated Shortly

1. Registration of a will is optional. Section 17(2)(b) takes wills out of compulsory registration and Section 18(e) makes them optionally registrable.

2. A will may be presented at any time under Section 27, including after the testator's death, by the executor or a claimant under Sections 40 and 41.

3. A will may instead be deposited in a sealed cover under Sections 42 to 46, which is not registration.

4. An unregistered will is not invalid. Section 49 does not apply, because a will is not a document required to be registered.

5. A will must be executed and attested under Section 63 of the Indian Succession Act, 1925, and registration neither supplies nor cures a defect in attestation.

6. A registered will is not a proved will. Registration is evidence of existence from a date; it is not evidence of capacity, understanding, freedom from influence, or genuineness.

7. At least one attesting witness must be called, under Section 68 of the Evidence Act, now Section 67 of the Bharatiya Sakshya Adhiniyam, 2023.

8. Where suspicious circumstances surround the execution, the propounder must remove them and satisfy the conscience of the court, H. Venkatachala Iyengar v. B.N. Thimmajamma.

9. A will is revocable at any time under Section 62, and may be revoked by a later will, by a writing executed as a will, by marriage where Section 69 applies, or by destruction.

10. A later unregistered will prevails over an earlier registered will, and Section 48 of the Registration Act has no application to wills.

11. Probate is judicial and establishes the will; registration is administrative and establishes only the record. Neither decides title, Ishwardeo Narain Singh v. Kamta Devi.