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2023 DIGILAW 2701 (ALL)

Pramila Tiwari v. Anil Kumar Mishra

2023-11-30

AJIT KUMAR, SIDDHARTHA VARMA

body2023
JUDGMENT : Heard learned counsel for the parties. 2. When a will dated 31.8.2002, after the death of the testator on 21.2.2016, was sought to be probated by Probate No. 26 of 2016 by the respondent Nos. 1, 2 and 3 namely Ankur Kumar Mishra, Om Prakash Mishra and Jai Prakash Mishra respectively then the petitioner Pramila Tiwari and the respondent No. 4, both daughters of late Indra Mani Mishra (alleged testator) raised an objection that since the will was being sought to be probated after the U.P. Act No. 27 of 2004 was enacted, the will was a void document inasmuch as it was not registered. By Act No. 27 of 2004 that received assent of the Governor of Uttar Pradesh on 20th August, 2004, Section 169 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 was amended and the words namely, ''be in writing and attested by two persons'' were substituted by words, ''be in writing, attested by two persons and registered'' and, therefore, the probate had not to proceed and the same had to be rejected. This application was filed on 11.5.2018 by the petitioner and respondent No. 4. This was objected to by the legatees i.e. respondent Nos. 1, 2 and 3. However, when the application of the petitioner and respondent No. 3 came to be rejected by the order dated 23.5.2022, the instant writ petition was filed by the petitioner saying that since the will dated 31.8.2002 was being got probated subsequent to the date of amendment i.e. after 23.8.2004, the will was compulsorily registerable. 3. When the writ petition came up for hearing, learned Single Judge (Hon'ble Vivek Chaudhary, J.) found that there were two conflicting views taken by co-ordinate Benches i.e. in the judgments of this Court in Shobhnath Dube, In the matter of : Late Kashinath Dube, (2015) 128 RD 507 and in Jahan Singh v. State of U.P., 2017(6) ADJ 615 . Learned Single Judge referred the matter to be determined by a Larger Bench and framed the following question : ''whether the provision of compulsory registration of will, as introduced in the form of Section 169(3) of U.P.Z.A & L.R. Act, 1950 (hereinafter referred to as the ''1950 Act'') by the Amendment Act namely U.P. Act No. 26 of 2004, is prospective or retrospective in nature ?'' 4. However, when the case was taken up, this Court on 27.9.2023 re-framed the question as follows : ''whether a Will reduced into writing prior to 23.8.2004 is required to be compulsorily registered in the event the testator dies after the said date ?'' 5. Learned counsel for the petitioner relying upon the judgment of Jahan Singh (supra) argued that all matters relating to rights in or over the land and all other matters including the transfer of agricultural land and its devolution were exclusively within the domain of the State Legislature. Learned counsel for the petitioner relied on Entry 18 of the Seventh Schedule just as the judgment in Jahan Singh (supra) had relied upon it and had submitted that the law relating to transfer, alienation and devolution were the subject-matter of the State Legislature. Since, learned counsel for the petitioner relied upon Entry 18, which was in the List-II of the Seventh Schedule, the same is being reproduced here as under : ''18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans, colonization.'' 6. Sri Rahul Sahai, learned counsel for the petitioner further submitted that the amendments came to the effect on 23.8.2004. He, therefore, submitted that with effect from 23.8.2004, the Will had to be (i) in writing; (ii) attested by two persons, and (iii) registered. Learned counsel for the petitioner further submitted that since a Will though executed earlier came into operation at the time when the testator died, the testator had all the opportunity till he died to get the Will registered. He further submits that since the language of Section 169(3) of the 1950 Act was very mandatory in nature, the Will could not be registered under Section 40 of the Registration Act, 1908 posthumously. In the end, learned counsel for the petitioner submitted that the amendment brought in by the Act No. 27 of 2004 had to be given a purposive interpretation to secure the intended object and he specifically relied upon the third object given in the Statements of Object and Reasons which was ''compulsory registration of will to avoid proliferation of forged wills'' and he, therefore, submitted that there was a definite purpose for bringing in the amendments and it should not be interfered with. 7. 7. Learned counsel appearing for the respondent Nos. 1, 2 and 3, however, has submitted that as and when a document is executed, it is executed as per the law which prevailed on the date when it was executed. He submits that on the date the will was executed i.e. on 31.8.2002, the provisions of the Registration Act, 1908 were applicable and definitely under Section 17 of the Registration Act, a will was not required to be registered. Under Section 18 of the Registration Act, it was optional to get the same registered. He further submits that though under Entry 21 of the List-II of the Seventh Schedule of the Government of India Act, 1935, the devolution of agricultural land was a State subject, devolution of land under the Constitution of India after 1950 was not a State subject but was covered by Entry-5 which was in the List-III. Learned counsel submitted that as per Entry-5, law could be enacted by the Center as also by the State on the following subjects : i.e. marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition and all such matters in respect of which parties in judicial proceedings were immediately before the commencement of the Constitution subject to their personal law and as per Entry-6 of the List-III of the Constitution, transfer of property other than agricultural land; registration of deeds and documents could be dealt with both by the State and the Center as the Entry-6 was placed in the List-III. Learned counsel for the respondents, therefore, submitted that the Act No. 27 of 2004 could not be enacted by the State Legislature as the subject, wills, intestacy and succession and also the subject of registration of deeds and documents were under the List-III i.e. the Concurrent List and not under the List-II i.e. list of subjects on which the State could legislate and, therefore, he submits that under Article 254 of the Constitution of India, any law which was made by the Legislature of a State and which was repugnant to any provision of law made by the Parliament, then the law made by the Parliament would prevail. However, he submitted that the law made by the Legislature of a State with respect to any one of the matters enumerated in the Concurrent List even if had a provision which was repugnant to the provisions of any earlier law made by the Parliament would be good law if there was the assent of the President of India. In the instant case, he submits that devolution was such a subject which was not covered under the State List. He also submits that wills, intestacy and succession were such matters where laws with regard to them could be enacted by both the Center and the State but if there was any inconsistency of the State legislation with a prior law made by the Central Legislation then the assent of the President was required. Since, learned counsel for the respondents relied upon Article 254 of the Constitution of India, the same is being reproduced here as under : ''254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.'' 8. Also, since learned counsel for the respondents has vehemently relied upon Entries 18, 5 and 6 which find place in the Seventh Schedule and since he has tried to show that the Entry 18 of the Constitution of India was quite different from Entry 21 of the Government of India Act, 1935 and since he relied upon a comparative chart, the same is being reproduced here as under : Seventh Schedule Government of India Act 1935 Constitution of India LIST I 54. Taxes on income other than agricultural income. 82. Taxes on income other than agricultural income. 55. Taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies; 86. Taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies; taxes on the capital of companies. 56-A Estate duty in respect of property other than agricultural land. 87. Estate duty in respect of property other than agricultural land. 56. Duties in respect of succession to property other than agricultural land. 88. Duties in respect of succession to property other than agricultural land. LIST II 20. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases; improvement of stock and prevention of animal diseases; veterinary training and practice; pounds and the prevention of cattletrespass. 14. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases. 21. Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; encumbered and attached estates; treasure trove. 18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. 27. Trade and commerce within the Province; markets and fairs; money lending and money lenders. 30. Money-lending and moneylenders; relief of agricultural indebtedness. 41. Taxes on agricultural income. 46. Taxes on agricultural income. 43. Duties in respect of succession to agricultural land. 47. Duties in respect of succession to agricultural land. 43-A Estate duty in respect of agricultural land. 48. Estate duty in respect of agricultural land. LIST III 6. Marriage and divorce; infants and minors; adoption. 7. 41. Taxes on agricultural income. 46. Taxes on agricultural income. 43. Duties in respect of succession to agricultural land. 47. Duties in respect of succession to agricultural land. 43-A Estate duty in respect of agricultural land. 48. Estate duty in respect of agricultural land. LIST III 6. Marriage and divorce; infants and minors; adoption. 7. Wills, intestacy, and succession, save as regards agricultural land. 5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. 8. Transfer of property other than agriculture land; registration of deeds and documents. 6. Transfer of property other than agricultural land; registration of deeds and documents. 7. Contracts including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land. 9. Learned counsel for the respondents, therefore, submitted that the Act No. 27 of 2004 was touching upon a subject which was covered by Entries 5 and 6 of the Seventh Schedule and those entries were to be found in List III and if laws were being enacted with regard to those entries which was repugnant to the Central Legislation then compulsorily the assent of the President ought to have been there and in the absence of the assent, the law was ultra vires the Constitution of India. Learned counsel for the respondents states that the Act No. 1 of 1950 i.e. the U.P. Zamindari Abolition and Land Reforms Act, 1950 was enacted by the State Legislature and since it contained certain provisions of devolution of interest of agricultural land and also with regard to wills etc., the 1950 Act was placed before the President for his assent and the President had given his assent to the Act on 24.1.1951. He, therefore, submits that when the main Act has the assent of the President then the specific enactment which touched upon the subject of wills, intestacy and succession and registration of deeds, which were the subject-matters of the Concurrent List, definitely required the assent of the President. He, therefore, submits that when the main Act has the assent of the President then the specific enactment which touched upon the subject of wills, intestacy and succession and registration of deeds, which were the subject-matters of the Concurrent List, definitely required the assent of the President. Learned counsel for the respondents has further submitted that even if the enactment was held to be intra vires and registration was considered to be essential then a will which was not registered prior to the death of the testator could definitely be got registered under Section 40 of the Registration Act, 1908 posthumously. 10. Learned counsel for the respondents relied upon a judgement of Supreme Court in Babu Ram v. Santokh Singh (deceased) through his LRs and others, 2019 (14) SCC 162 . Since he specifically referred to paragraph No. 15 of the judgement, the same is being produced here as under: ''15.But the situation underwent considerable change after the Constitution of India was adopted: (i) The subjects ''transfer, alienation of agricultural land'' are retained in the State List in the form of Entry 18 but the subject ''devolution'' was taken out. (ii) As against earlier entry 7 of List III where the subject, ''succession'' came with express qualification, ''…save as regards agricultural land'', that qualification is now conspicuously absent in comparable Entry 5 in the present List III. The expression in Entry 5 today is ''…intestacy and succession''. The changes indicated above as against what was earlier available in Entry 21 of List III and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows ''succession'' in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to ''transfer, alienation of agricultural land'' which are transfers inter vivos, the competence under Entry 18 of List II is with the State Legislatures but when it comes to ''intestacy and succession'' which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as the State Legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with.'' 11. Having heard learned counsel for the parties, this Court finds that before conclusively answering the question as has been framed by us, it definitely becomes essential that we call upon the learned Advocate General to answer as to whether there was a Presidential assent to the Act No. 27 of 2004. We find that when the Government of India Act, 1935 was in operation, the State Legislature could legislate with regard to devolution of agricultural land but after the coming of the Constitution of India, Entry 18 though it talked about ''land''; rights in or over it; land tenures; over the relationship of landlord and tenant; collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans, it did not contain the subjects of wills, intestacy and succession which were to be found under Entry 5 which was a part of List III. We also find that registration of deeds and documents was put in Entry 6 of the Seventh Schedule and this Entry also found place in List III of the Constitution of India. 12. We also find that though the provisions of Section 49 of the Registration Act were not applicable on 23.8.2004 with regard to a registered will generally but the bringing in of the provision of registration of a will by the amendment of the U.P. Zamindari Abolition and Land Reforms Act would definitely bring into play the effects of non-registration of a document which was required to be compulsory registered under Section 49 of the Registration Act. 13. It, therefore, becomes imperative for us to first look into the question of legislative competence of the State in incorporating a provision which we find to be prima facie repugnant to the provisions as contained under central Act, namely, Registration Act, 1908 in the absence of Presidential assent to the Amendment Act No. 27 of 2004. 14. In the circumstances, it becomes necessary to hear the State on the issue before we further proceed to examine the question framed by us in this reference, and hence we request the learned Advocate General to argue on behalf of the State on the next date. 15. 14. In the circumstances, it becomes necessary to hear the State on the issue before we further proceed to examine the question framed by us in this reference, and hence we request the learned Advocate General to argue on behalf of the State on the next date. 15. Sri Ankur Tandon, learned Standing Counsel who is present today in the Court, is directed to accept notices in this Case on behalf of the State. 16. List this case before this Bench on 11th December, 2023. 17. Registrar (Compliance) shall do the needful in the matter for communicating this order to the learned Advocate General, Uttar Pradesh. He shall also provide a copy of this order alongwith the complete set of the paper-book to Sri Ankur Tandon who would in his turn provide the same to the learned Advocate General.