Law of Registration
REG 077 Registration of Will and Probate
Registration of a Will and Probate Distinguished: An Administrative Act Against a Judicial Grant, and Why Neither Decides Title
Registration of a will is an administrative act performed by the registration office; probate is a judicial grant made by a court. Registration is optional, may be done at any time before or after death, and involves an enquiry confined by Section 34 to the fact of execution and the identity of the executant. Probate is granted only after death, only to the executor, and only after the court has satisfied itself of due execution, attestation, testamentary capacity and the removal of any suspicious circumstances. The two are often spoken of as alternatives. They are not: one records a document, the other establishes a will, and neither decides who owns the property.
The two compared, and the limit that applies to both
1. Registration of a Will
Sections 17(2)(b), 18(e), 27, 40 and 41, Registration Act, 1908, in substance 17(2)(b). Nothing in sub section (1) applies to a will. 18(e). Any of the following documents may be registered: wills. 27. A will may at any time be presented for registration or deposited in manner hereinafter provided. 40(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. 41(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. 41(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 it is entitled to present it. |
- It is optional in every case. Section 49 therefore has no application, and an unregistered will is fully valid and fully admissible.
- There is no time limit. The four month rule in Section 23 does not apply, by force of Section 27.
- The enquiry is narrow. Under Section 34 the officer asks only whether the document was executed by the person who purports to have executed it, and who he is.
- After death the enquiry widens slightly, by Section 41(2), to include the death of the testator and the presentant's entitlement, but it goes no further.
- The will is copied into Book 3, and Section 57(2) restricts copies of entries in Book 3 to the testator during his lifetime, and to any applicant after his death.
- Registration proves that a document in those terms existed on that date, and nothing more. It does not prove capacity, attestation, or freedom from influence.
2. Probate
Sections 2(f), 213, 222 and 263, Indian Succession Act, 1925, in substance 2(f). "probate" means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. 213(1). No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. 222(1). Probate shall be granted only to an executor appointed by the will. The appointment may be express or by necessary implication. 263. The grant of probate or letters of administration may be revoked or annulled for just cause, as where the proceedings were defective in substance, or the grant was obtained fraudulently by making a false suggestion or by concealing something material to the case. |
- It is a judicial act. The court tries the question whether the document is the last will of a free and capable testator.
- It is granted only after death, and only to an executor appointed by the will. Where there is no executor, or he will not act, letters of administration with the will annexed are granted instead.
- The enquiry is full. Due execution under Section 63, attestation proved under Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, testamentary capacity, and the removal of suspicious circumstances on the standard laid down in H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443.
- It establishes the will, and the executor's title to represent the estate, and it is conclusive as to those matters until revoked.
- It may be revoked for just cause under Section 263.
3. When Probate Is Compulsory
1. Section 213(1) bars the establishment of a right as executor or legatee in any court unless probate or letters of administration have been granted, in the cases to which it applies.
2. Section 213(2) confines that bar to wills made by a Hindu, Buddhist, Sikh or Jaina where so provided by Section 57 and Schedule III, and to wills made by a Parsi dying after the commencement of the Act, where the property is situate within the local limits there specified.
3. Section 57 read with Schedule III applies the relevant provisions 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.
4. So the requirement is territorial and communal, and outside those limits a Hindu will may be proved in the ordinary way without probate.
5. Where probate is not compulsory, the will is still proved in the ordinary way, by calling an attesting witness under Section 67 of the Bharatiya Sakshya Adhiniyam, 2023.
6. The current position should be checked against the local High Court practice, because the territorial limits have been the subject of considerable litigation.
4. The Two Compared
Registration of a will | Probate | |
Nature | Administrative; an act of the registration office | Judicial; a grant under the seal of a court of competent jurisdiction |
Statute | Registration Act, 1908, Sections 17(2)(b), 18(e), 27, 40 and 41 | Indian Succession Act, 1925, Sections 2(f) and 213 onwards |
When | At any time, before or after death | Only after the death of the testator |
Who applies | The testator, or after death the executor or a person claiming under the will | The executor appointed by the will, Section 222 |
The enquiry made | The fact of execution and the identity of the executant, Section 34; after death, also the death of the testator, Section 41(2) | Due execution, attestation, testamentary capacity, and the removal of suspicious circumstances |
Is it compulsory? | No, optional in every case | Compulsory in the cases covered by Section 213 read with Section 57 and Schedule III |
Effect | A public record of the document, and a certified copy on demand | Establishes the will and the executor's authority, and is conclusive until revoked |
Can it be undone? | The register is corrected only by a decree of a court | Revoked or annulled for just cause under Section 263 |
Does it decide title? | No | No. The probate court decides the factum of the will, not ownership |
Cost | The registration fee, which is small | Court fee, which in many States is ad valorem on the value of the estate |
5. Neither Decides 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, and about the rights of persons claiming adversely. 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 therefore settles no more about ownership than registration does, and the two must not be treated as substitutes for a decree on title. |
- This is the proposition that unites the two halves of this note. Registration records a document; probate establishes a will; ownership is decided by a civil court on the evidence of title.
- A probate proceeding is in rem as to the factum of the will, and binds the world on that question, subject to revocation under Section 263.
- It is not in rem as to title, and a person claiming the property adversely to the testator is not concluded by the grant.
- So a legatee with probate may still lose the property, if the testator had no title to it, exactly as a purchaser with a registered sale deed may lose it if his vendor had none.
6. What Each Is Actually Worth
Registration of a will shows | Probate shows |
That a document in those terms existed on the date of registration, which answers a charge of recent fabrication | That the document is the last will of a free and capable testator, established after a judicial enquiry |
That the person who presented it did so and was identified | That the executor named in it has authority to administer the estate |
That the executant, if he appeared, admitted execution | That due execution and attestation were proved |
That a certified copy is available under Section 57 if the original is lost | That any suspicious circumstances were removed to the satisfaction of the court |
Not capacity, attestation, freedom from influence, or that it is the last will | Not that the testator owned the property he disposed of |
⚠ Registration does not shorten the road to probate A registered will must still be proved in the ordinary way. The proviso to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, which relieves a party of calling an attesting witness for a registered document, expressly excludes wills. So the propounder of a registered will must still call an attesting witness, must still establish testamentary capacity, and must still remove any suspicious circumstances. Registration is a circumstance the court weighs in favour of genuineness, particularly where the testator appeared before the Sub Registrar and admitted execution; it is evidence, and it is not proof. |
7. Which Is Needed, and When
The situation | What is needed |
A Hindu testator in a place outside the Section 57 territories, leaving immovable property there | No probate. The will is proved in the ordinary way when relied on. Registration optional but useful |
A Hindu testator, will made within the Section 57 territories, or relating to immovable property there | Probate or letters of administration, under Section 213 read with Section 57 and Schedule III |
A Parsi testator dying after the commencement of the Act, property within the specified limits | Probate or letters of administration, Section 213(2) |
No executor named, or the executor will not act | Letters of administration with the will annexed |
A testator who wants his dispositions to remain private while he lives | Deposit under Sections 42 to 46, rather than registration |
A testator concerned about a challenge after his death | Registration, for the evidential advantage; and careful attestation, which is what actually decides the challenge |
A legatee whose right is disputed on the ground of title, not of the will | A civil suit. Neither probate nor registration answers it, Ishwardeo Narain Singh |
8. The Position Stated Shortly
1. Registration of a will is administrative and optional, under Sections 17(2)(b) and 18(e), and may be effected at any time under Section 27.
2. After the testator's death a will may be presented by the executor or a claimant under Section 40, and Section 41(2) requires the officer to be satisfied of execution, of the death, and of the presentant's entitlement.
3. The enquiry on registration is confined by Section 34 to the fact of execution and the identity of the executant.
4. Probate is a judicial grant under Section 2(f) of the Indian Succession Act, 1925, made only after death and only to an executor appointed by the will, Section 222.
5. Probate is compulsory only in the cases covered by Section 213 read with Section 57 and Schedule III, which are territorial and communal in their operation.
6. The probate court enquires into due execution, attestation, testamentary capacity and the removal of suspicious circumstances.
7. Probate establishes the will and the executor's authority and is conclusive until revoked for just cause under Section 263.
8. Neither registration nor probate decides title, Ishwardeo Narain Singh v. Kamta Devi.
9. Registration does not dispense with proof: wills are excluded from the proviso to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, so an attesting witness must still be called.
10. Where probate is not required, the will is proved in the ordinary way in whatever proceeding it is relied on.