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Who can present registration of the Will under s.40 of Registration Act

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgement pronounced on:16.09.2013

W.P.(C) 5861 of 2013 & CM No.12921 of 2013

VEENA SURI ….. Petitioner
Through: Mr. Rajkumar Sherawat & Mr. Rajesh Goswami, Advs.

versus

STATE OF NCT OF DELHI & ORS ….. Respondents
Through: Ms. Zubeda Begum, Standing Counsel,
GNCTD.

CORAM:
HON‟BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.
Vide communication dated 29.8.2013, the Sub-Registrar (V) referring to an application moved by Shri Ramesh Chander Luther, Shri Raj Kumar Luther, Shri Ravi Shanker Luther & Shri Vikram Luther, seeking registration of a Will executed by late Shri Charanji Lal S/o late Shri Nand Lal asked the petitioner to get a stay order or direction issued by a Court within fifteen (15) days of the issue of the said letter and informed that if she failed to provide the said status her objection shall be treated as null & void and the Sub-Registrar would be inclined to register the documents without any further intimation.

2. Earlier the petitioner vide letter dated 7.6.2013 had intimated the Sub-Registrar about the death of her father Shri Charanji Lal on 8.8.2012 and had requested him to give instructions not to entertain any document for registration on the basis of a forged and fabricated Will of her father. It is, thus, obvious that the persons mentioned in the communication dated 29.8.2013 have presented for registration a document alleged to have been executed by late Shri Charanji Lal, father of the petitioner, and it was in the context of the objections filed by the petitioner on 7.6.2013 that the said letter was issued.

3. The learned counsel for the petitioner has drawn my attention to Section 41 (2) of the Registration Act, 1908, (hereinafter referred to as „the Act‟) which to the extent it is relevant reads as under:

“41. Registration of Wills and authorities to adopt xxxx xxxx xxxx xxxx xxxx (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 the will or authority is, under section 40, entitled to present the same.”

4. It would, thus, be seen that before registering a Will, the Sub- Registrar is required to satisfy himself that (i) the testator is dead, (ii) the will was executed by the testator, (iii) and the person presenting the same is entitled under Section 40 of the Act to present the same. Section 40 of the Act to the extent it is relevant provides that on the death of a person any person claiming as executor or otherwise under a will, may present it for registration.

5. The case of the petitioner is that the Will presented for registration is a forged and fabricated document having not been executed by late Shri Charanji Lal. It would, therefore, be obligatory for the Sub-Registrar to deal with the said objection and take a view in terms of sub-section (2) of Section 41 of the Act, before he proceeds to register the will presented to him.

6. In these circumstances, the writ petition is disposed of with the direction to the Sub-Registrar to consider and dispose of the objections filed by the petitioner on 7.6.2013 before proceeding to register the Will presented by Shri Ramesh Chander Luther, Shri Raj Kumar Luther, Shri Ravi Shanker Luther & Shri Vikram Luther.

The writ petition and the application stand disposed of. Dasti.

SEPTEMBER 16, 2013 V.K. JAIN, J.

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