BARIN GHOSH, J. -
(1.) IN the instant
case, appellant No. 1 is the widow of Pradeep
Singh Bhandari and appellant No. 2 is the
son of Pradeep Singh Bhandari. Pradeep
Singh Bhandari was the son of G.S. Bhandari.
G.S. Bhandari predeceased his wife Smt.
Durga Devi Bhandari. After the death of Smt.
Durga Devi Bhandari, respondent No. 3, the
daughter of G.S. Bhandari, purported to
present a Will, allegedly executed by Smt.
Durga Devi Bhandari, for registration before
respondent No. 2, Sub -Registrar (Second),
Haldwani. Respondent No. 2 has registered
the said Will. Challenging the said
registration, a writ petition was filed. In that, amongst
others, it was contended that, in terms of the
provisions of Section 169 of the Uttar
Pradesh Zamindari Abolition and Land Reforms Act, 1950, the subject Will was required to be registered by the Testator herself, inasmuch as, the Will dealt with
bhumidhari right of the Testator. The learned
Judge, who dealt with the writ petition, did
not consider the said contention on the part
of the appellant.
(2.) WE feel that the question, whether, by the Will, bhumidhari right has been transferred or not, has not yet cropped up. The
same Will crop up only when, on the strength
of the Will, the alleged beneficiary thereunder will seek a direction for transfer of the
bhumidhari right of the Testator in her favour.
We have not gone into the question at this
stage, whether, by reason of Section 169 of
the Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950, read with Section
17(1)(f) of the Registration Act, 1908, it was a requirement for the Testator herself to register the Will or not, inasmuch as, by and
under the purported Will, the Testator purportedly devised also those properties, which
cannot be called bhumidhari rights. Inasmuch
as the Will cannot be truncated into two or
scissored, one in respect of the bhumidhari
rights and the other in respect of the other
rights, we have only proceeded to find out,
whether the Registrar, in the matter of registering the Will in question, acted in excess
of his authority.
Learned counsel for the appellants submitted that, in terms of Section 2(h) of the Indian Succession Act, 1925, "Will" means
the legal declaration of the intention of the
testator with respect to his property, which
he desires to be carried into effect after his
death. Learned counsel, further, submitted
that, in terms of Section 63 of this Act, it is
incumbent to have at least two attesting witnesses to make the Will a legal declaration
of the intention of the testator. It was submitted that, in the instant case, the Will had
only one attesting witness, inasmuch as, on
the query of the Sub -Registrar, one of the
alleged attesting witnesses stated that he did
not attest the Will. It was contended that, in
those circumstances, the Registrar did not
discharge his obligation of satisfying that the
Will was executed by the testator. In other
words, the contention was that, since the
purported Will was attested by only one witness, the same was not a Will and, accordingly, the Registrar could not satisfy that the
same was the Will of the Testator and, accordingly, could not register the same.
(3.) WE think that, under Clause (a) of subsection (2) of Section 41 of the Registration Act, 1908, the Registrar had the obligation
of satisfying that the Will, or the instrument
purporting to be Will, was executed by the
testator. If the Registrar was satisfied about
the execution of the purported Will by the
testator, he certainly could register the Will.
However, we make it absolutely clear that
satisfaction of the Registrar that the Will was
executed by the testator is no certificate that
the same was executed in fact by the testator. At the same time, registration of a Will
does not give more authenticity to the Will.
An unregistered Will or a registered Will has
no difference. A Will will come into force
only when the same is accepted by a competent court to be a Will executed by the testator, who is supposed to have executed the
same. This opinion of the court may be had
by applying for probate or letters of administration annexed with the Will or in any other