Law of Registration
REG 061 Testamentary and Non Testamentary Documents
Testamentary and Non-Testamentary Documents: The Meaning of "Non-Testamentary" in Section 17, and Why One Difference Explains Every Special Rule About Wills
The words "non testamentary instruments" appear twice in Section 17(1), in clauses (b) and (c), and again in clause (e). They are not decorative. They mark off the one class of document that the Registration Act treats differently at every stage, and the reason is a single quality: a testamentary document is ambulatory. It speaks only from the maker's death, and until death he may revoke it at will. There is therefore nothing settled for the register to record, and every special rule about wills, from the exemption in Section 17(2)(b) to the sealed cover in Sections 42 to 46 and the exclusion of wills from the proviso to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, follows from that one fact.
The one difference, and the string of consequences that runs from it through the whole Act
1. What "Testamentary" Means
Section 2(h), Indian Succession Act, 1925, and Section 3, Registration Act, 1908 Indian Succession Act, Section 2(h). "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Indian Succession Act, Section 2(b). "codicil" means an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will. Registration Act, Section 2(16). "will" includes a codicil and every writing making a voluntary posthumous disposition of property. |
- The definition in the Registration Act is deliberately wide. It is not confined to a document called a will; it reaches every writing making a voluntary posthumous disposition of property.
- Three elements identify a testamentary document. It is a declaration of intention as to property; it is intended to take effect after death; and it is revocable until then.
- It disposes of nothing during the maker's lifetime. He retains the property and the full power to deal with it, and may sell or give away tomorrow what the will bequeaths.
- It is not a transfer, so the Transfer of Property Act does not apply to it. Section 2(d) of that Act excludes transfers by operation of law and testamentary succession from Chapter II.
- A codicil is part of the will and stands on exactly the same footing.
2. The Two Classes Compared
Testamentary | Non-testamentary | |
When it operates | On the death of the maker | At once, on execution and registration |
Does the maker part with anything now? | No. He keeps the property and the power to deal with it | Yes, to the extent of the disposition |
Revocable | Yes, at any time until death, Section 62 of the Indian Succession Act, 1925 | No, once complete; a gift only within Section 126 of the Transfer of Property Act |
Position under Section 17 | Outside clauses (b), (c) and (e), which speak of non testamentary instruments; and Section 17(2)(b) says so expressly | Within Section 17 where it creates, declares, assigns, limits or extinguishes a right in immovable property |
Registration | Optional, Section 18(e) | Compulsory where Section 17 applies |
Time for presentation | At any time, Section 27; after death by the executor or a claimant, Sections 40 and 41 | Four months from execution, Section 23 |
Which book | Book 3, the register of wills and authorities to adopt, Section 51(1) | Book 1, the register of non testamentary documents relating to immovable property |
Public access | Restricted: Section 57(2) gives copies of entries in Book 3 to the testator in his lifetime, and to any applicant after his death | Open: Books 1 and 2 and the indexes to Book 1 are open to inspection by anyone, Section 57(1) |
Deposit facility | Available, in a sealed cover under Sections 42 to 46 | None |
Destruction as unclaimed | Wills are excepted from Section 85 | Liable to destruction after two years unclaimed |
Proof | An attesting witness must still be called; wills are excluded from the proviso to Section 67 BSA | No attesting witness need be called if the document is registered and execution is not specifically denied |
3. The Chain of Consequences
It is worth setting out, in order, how one quality produces the whole scheme. Each rule below is a direct consequence of the rule above it.
1. A will is ambulatory. It speaks from death and is revocable until then.
2. So it creates no right in praesenti. Nothing is created, declared, assigned, limited or extinguished at the date of execution.
3. So it is outside Section 17(1)(b) and (c) by definition, which is why those clauses say "non testamentary instruments". Section 17(2)(b) then removes any doubt by providing that nothing in the sub section applies to a will.
4. So registration cannot be compelled, and Section 18(e) makes it optional.
5. So Section 49 has nothing to bite on. An unregistered will is not a document "required to be registered", and is fully valid and fully admissible.
6. So there is no reason to fix a time limit. Section 27 allows a will to be presented at any time, and the four month rule in Section 23 does not apply.
7. So the will may be presented after death, and Sections 40 and 41 provide for presentation by the executor or a person claiming under it, with the officer satisfying himself of the death.
8. So privacy matters while the testator lives. Book 3 is kept separately, and Section 57(2) restricts copies to the testator during his lifetime.
9. So a means of safekeeping without disclosure is useful. Sections 42 to 46 allow the will to be deposited in a sealed cover, withdrawn under Section 44, and opened after death under Section 45.
10. So the will is excepted from destruction. Section 85 permits unclaimed documents other than wills to be destroyed after two years.
11. And so registration proves very little. The testator cannot be called to speak to the document, and the proviso to Section 67 BSA therefore excludes wills from the relaxation it grants to registered documents.
4. What Registration Does and Does Not Do for a Will
Registration of a will shows | Registration of a will does not show |
That a document in those terms existed on the date of registration, which answers a charge of recent fabrication | 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 or undue influence |
That a certified copy is available under Section 57 if the original is lost | That the will was attested as Section 63 of the Succession Act requires |
Nothing more | That it is the last will of the testator |
- Attestation is still required, by Section 63 of the Indian Succession Act, 1925, and registration does not supply it. A will attested by one witness is void however carefully it was registered.
- Proof is still required, under Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, and the proviso that relieves a party of calling an attesting witness for a registered document expressly excludes wills.
- Suspicious circumstances must still be removed by the propounder, and registration does not discharge that burden.
- A later will prevails over an earlier registered one, because Section 70 of the Succession Act does not require the revoking instrument to be registered, and Section 48 of the Registration Act has no application to wills, there being nothing to which priority could attach before death.
5. The Label Does Not Decide It
This is the practical heart of the subject, and it is an application of the general rule that the requirement of registration is decided by what the instrument does, not by what it is called. The question is always the same: did the maker part with anything during his lifetime, or did he merely declare what should happen after it?
The document | Its true character | Registration |
A deed called a settlement, to take effect only on the settlor's death, revocable until then | A will | Optional, Sections 17(2)(b) and 18(e); but attestation under Section 63 of the Succession Act is essential |
A deed called a will, by which the maker transfers the property at once and reserves a life interest | A settlement, and a non testamentary instrument | Compulsory, Section 17(1)(b) |
A gift deed reserving a life interest to the donor | A gift, non testamentary, because the donor parts with the remainder now | Compulsory, Section 17(1)(a) with Section 123 TPA; and two attesting witnesses are required |
A deed of family arrangement to operate on the death of the head of the family | Testamentary, so far as it postpones the disposition to death | Depends on the substance; the part operating in praesenti is registrable |
An authority to adopt, conferred by will | Testamentary | Optional; Section 17(3) covers only authorities not conferred by will |
An authority to adopt, by a separate writing | Non testamentary | Compulsory, Section 17(3), and Section 49(b) applies |
⚠ A reserved life interest does not make a deed testamentary The commonest error in this area is to treat a deed that reserves the donor's or settlor's enjoyment during his lifetime as a will, on the footing that the beneficiary gets nothing until the maker dies. That is wrong. What matters is whether the disposition itself takes effect now. Where the maker transfers the property at once and keeps only the right to enjoy it while he lives, he has parted with the remainder immediately, the deed is irrevocable, and it is a non testamentary instrument requiring registration. The Supreme Court made the same point about gifts in Renikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445, holding that a donor may reserve a life interest without affecting the validity of a completed gift. A will, by contrast, transfers nothing at all until death, and the maker may deal with the property freely in the meantime. |
6. The Provisions Governing Wills, Collected
Provision | What it does |
Section 2(16) | Defines "will" to include a codicil and every writing making a voluntary posthumous disposition of property |
Section 17(1)(b), (c) and (e) | Are confined to non testamentary instruments, so a will is outside them by definition |
Section 17(2)(b) | Provides expressly that nothing in the sub section applies to a will |
Section 17(3) | Requires registration of an authority to adopt not conferred by will |
Section 18(e) | Makes a will optionally registrable |
Section 27 | A will may at any time be presented for registration or deposited |
Section 40 | After the testator's death, the executor or a person claiming as executor or otherwise under the will may present it |
Section 41 | The officer registers it if satisfied of execution, of the death of the testator, and of the presentant's right to present |
Sections 42 to 46 | Deposit in a sealed cover; withdrawal by the testator under Section 44; opening after death under Section 45; and Section 46 saving the general law |
Section 51(1) | Book 3 is the register of wills and authorities to adopt |
Section 57(2) | Restricts copies of entries in Book 3 to the testator during his lifetime, and to any applicant after his death |
Section 85 | Excepts wills from the destruction of unclaimed documents |
Proviso to Section 67, BSA 2023 | Excludes wills from the relaxation that dispenses with calling an attesting witness for a registered document |
7. The Position Stated Shortly
1. A testamentary document is a legal declaration of intention as to property, to take effect after death, revocable until then.
2. Section 2(16) of the Registration Act defines "will" widely, to include a codicil and every writing making a voluntary posthumous disposition of property.
3. Section 17(1)(b), (c) and (e) are confined to non testamentary instruments, so a will falls outside them by definition, and Section 17(2)(b) confirms it.
4. Registration of a will is optional under Section 18(e), and Section 49 therefore has no application to an unregistered will.
5. A will may be presented at any time under Section 27, and after death by the executor or a claimant under Sections 40 and 41.
6. It is entered in Book 3, and Section 57(2) restricts access during the testator's lifetime.
7. It may be deposited in a sealed cover under Sections 42 to 46 instead of being registered.
8. It is excepted from destruction as an unclaimed document under Section 85.
9. Registration does not prove that a will is genuine, that the testator had capacity, or that it was attested; attestation under Section 63 of the Indian Succession Act, 1925 remains essential.
10. Wills are excluded from the proviso to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, so an attesting witness must be called even for a registered will.
11. A later will prevails over an earlier registered one, and Section 48 has no application to wills.
12. The label does not decide the character of the document: a settlement to take effect on death is a will, and a will that operates at once is a settlement and must be registered.
13. A reserved life interest does not make a deed testamentary, because the disposition of the remainder takes effect at once.