- (1.) D. S. Sinha, J. Heard Sri Janardan Sahai, learned Counsel for the petitioner and Sri Vinay Malaviya, learned Standing Counsel representing the respondent No. 1. No body has appeared for Sri Ashok Kumar Saxena & Sri Shushil Kumar, the contesting private respondents No. 2 & 3, respectively.
(2.) RELEVANT facts, giving rise to instant petition, are these: Sri Daya Shanker Saxena, Advocate, the father of the respondents No. 2 and 3, brother of the petitioner, hereinafter called the Testator', executed a Will in respect of dwelling situate in Mohalla Katia Tola, Shahjahanpur in favour of the respondents No. 2 and 3, Upon the death of testator the respon dents No. 2 and 3 presented the Will before sub-Registrar of Shahjahanpur, the respon dent No. 1. for registration thereof. During the proceedings for posthu mous registration of the Will before the respondent No. 1, Km. Shushila Saxena, the sister of the testator, Smt. Mohan Pyari, wife of the brother of the testator, and Km. Saroj Saxena, the niece of the testator, in sisted to participate in the proceedings and object to the registration of the Will. They made an application supported by affidavit praying that they be impleaded as they were necessary parties to the proceedings of post humous registration of the Will. The claim for impleadment and right to participate in the proceedings and object the registration of the Will was asserted on the ground that the house in respect whereof Will was ex ecuted by the testator belonged to the mother of testator; and that the testator had no legal authority to execute the Will. They also asserted that the Will was not executed by the testator; and that the Will did not contain his signature. According to them, signature of the testator appearing on the will was forged. It appears that the respondent No. 1 did not allow the petitioner and other objec tors either to be impleaded or to participate in the proceedings for posthumous registra tion or the Will. Smt. Mohan Pyari and Km. Saroj Saxena have acquiesced. However, feeling aggrieved by her exclusion from participa tion in the proceedings for posthumous registration of the will petitioner invokes the jurisdiction of this Court under Article 226 of the Constitution of India and urges it to intervene in the matter. The provisions regulating the presentation of documents for presenta tion, other than Wills and authorities to adopt, are contained in Ss. 32, 33 & 35 oc curring in Part VI of the Registration Act, 1908, hereinafter called the Act. Regarding the Wills and authorities to adopt the provisions are contained in Ss. 40 & 41 which find place in Part VIII of the Act. Ss. 40 & 41 which are material and have bearing for decision of this case, are extracted below: "40 persons entitled to present Wills and authorities to adopt.- (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, or the adoptive son, may present it to any Registrar or sub-Registrar for registration. " "41. Registration of Wills and authorities to adopt.- (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 authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer 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 the Will or authority is, under Section 40, entitled to present the same. " Sub-section (1) of Section 40 of the Act names the persons entitled to present wills. They are testator, and after his death, the person claiming as executor or other wise under a Will.
(3.) ACCORDING to sub-section (1) of Sec tion 41 of the Act, a Will presented by the testator has to be registered by the register ing authority in the same manner as any other document i. e. after complying the provisions of Sections 32, 33, 34 and 35 of the Act. Sub-section (2) of Section 41 of the Act envisages that the Will presented by any person, other than the testator, entitled to present, has to be registered by the register ing authority on his being satisfied about the following three things: (i) that the Will has been executed by testator; (ii) that the testator is deed; and (Hi) that the person presenting the Will is, under Section 40, entitled to present the same.;