Allahabad High Court Strikes Down 2004 Amendment To S.169(3) UPZALR Act Mandating Registration Of Wills

The Allahabad High Court has struck down the 2004 amendment to Section 169(3) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 to the extent that it mandates for registration of Wills. The Court held that the mandate to register Wills is against Section 17 read with Section 40 of the Indian Registration Act, 1908.

Section 169(3) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 was amended to read as “Every will made under provisions of sub section (1) shall, not withstanding anything contained in any law, custom or usage, [be in writing, attested by two persons and registered]”

The bench comprising of Justice Siddhartha Varma and Justice Ajit Kumar held “sub-Section (3) of Section 169 having been declared as void to the extent it provides for registration of Will, the Wills in State of Uttar Pradesh are not required to be registered and a Will for its non registration will not be void whether before or after the U.P. Amendment Act, 2004.”

Case Background

In Sobnath Dube, In the Matter of: Late Kashinath Dube, a Single Judge of the Allahabad High Court had held that the amendment to Section 169(3) of UPZALR Act made the registration of Wills compulsory only prospectively and the amendment would not apply to the Wills executed prior to the amendment.

However, in Jahan Singh v. State of UP & ors, a coordinate bench, disagreed with Sobnath and held that amendment to Section 169(3) of the Act, 1950 will apply to an unregistered Will taking effect after the date of amendment.

Since, there was a conflicting opinion of the two coordinate benches, Justice Vivek Chaudhary referred the question of applicability of the amendment to Section 169(3) of the Act, 1950 to a larger bench.

The division bench observed that another issue arose as to the validity of the amendment made by the State Legislature without the assent of the President of India as Will, intestacy and succession under the Constitution are provided in the Concurrent List and Central Legislation already considers registration of Will under the Registration Act, 1908.

Division Bench Verdict

The Court framed the following questions for reference:

“A) Whether U.P.Z.A. & L.R. Amendment Act, 2004 to the extent of amending 169(3) of the Act, 1950 is void being repugnant to the Registration Act, 1908?;

B) Whether, if the Amendment Act of Uttar Pradesh i.e. Act No.27 of 2004 is upheld, a Will reduced into writing prior to 23.08.2004 is required to be compulsorily registered in the event the testator dies after the said date?”

Regarding the repugnancy of the amendment, the Court observed that Section 17 of the Registration Act does not include Will in the list of documents which are required to be registered. Instead, registration of Will was made optional at the discretion of the testator. Section 40 of the Registration Act also provides registration of Wills posthumously. The Court observed that the Registration Act was the only act in the then united provinces and no separate state/ provincial act existed on compulsory registration of Wills.

The Court observed that a Will, being a document for devolution of estates, was never required to be registered whether the property was an agricultural land or non-agricultural property or estate.

“Will denotes devolution of property by the testator as per his/ her desire. Indian Registration Act continues to occupy the field qua subject matter of registration i.e. deeds and documents provided under Entry-8 of the List III of the Act, 1935 with the corresponding Entry-6 of the Concurrent List under the Constitution of India. The enactment stands, thus, saved under Article 254(2) of the Constitution.”

The Court held that since UPZALR Act had received Presidential assent, it will override any State and Central laws which covered matters provided in UPZALR Act.

The Court observed that Uttar Pradesh is an agriculture state where most farmers are poor and uneducated. In the event person wants to change his will at his deathbed, he will be prevented from doing so which was arbitrary, inhumane and violative of the fundamental right to create a Will of his assets and properties.

“To deny a person the right to change his Will by an unregistered document in his last days would not only be inhuman but would be an arbitrary denial of his fundamental right to create a Will of his assets and properties. There could be a condition where a person wishes in the last days of his/her life to distribute his/her property as per his last desire or wish which might be very different from the last registered Will. This, according to us, would never be the intention of the legislation.”

The Court held that since the subject matter fell in the Concurrent List, the State ought to have taken Presidential consent prior to enactment of the amendment in the pre-existing Central Act. The Court held that there was exception to agricultural land and Wills being a part of the Concurrent List, and the amendment to UPZALR Act was effectively amending the Registration Act, Presidential assent ought to have taken before making registration of Wills compulsory.

Accordingly, the Court held that the amendment to Section 169(3) of UPZALR Act to the effect of registration of Wills was void and was struck down.

Case Title: Pramila Tiwari vs. Anil Kumar Mishra And 4 Others 2024 LiveLaw (AB) 298 [MATTERS UNDER ARTICLE 227 No. - 8279 of 2022]

Citation: 2024 LiveLaw (AB) 298

Counsel for Petitioner :- Anand Kumar Singh, Dinesh Kumar Singh, Rahul Sahai, Vinod Kumar Pandey

Counsel for Respondent :- Rituvendra Singh Nagvanshi, Uday Bhan Mishra

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