# Pramila Tiwari v. Anil Kumar Mishra & Ors

- **Citation:** (2023) 12 ILRA 507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-30
- **Bench:** Siddhartha Varma, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramila-tiwari-v-anil-kumar-mishra-ors-49619
- **Pages:** 7

## Headnote

A. Civil Law - Constitution of India,1950Article 227-Indian Registration Act, 1908Section 49-U.P. Zamindari Abolition and
Land
Reforms
Act,1950-Will-ProbateDevolution
of
interest-Registration
of
document-Registration
of
deeds
and
documents put in Entry-6 of Seventh
Schedule,
List
III-Section
49
of
Registration Act were not applicable on
23.08.2004 with regard to a registered
will generally-But bringing in of provision
of registration of a Will by the amendment
of Act of 1950 would definitely bring into
play the effects of non-registration of a
document which was required to be
compulsory registered under Section 49 of
Registration Act-Question of legislative
competence of State in incorporating a
provision which find to be prima facie
repugnant to provisions as contained
under Registration Act in absence of
Presidential assent in Amendment Act No.
27 of 2004-Direction issued.(Para 1 to 17)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

12 All. Pramila Tiwari Vs. Anil Kumar Mishra & Ors.
507

16. In view of above and considering
the over all facts and circumstances of the
case, this court is of the view that
impugned orders have rightly been passed
in accordance with law because the
petitioner has not put in appearance and
filed
the
written
statement
despite
sufficient service and the petitioner, who
is respondent/defendant in the claim
petition has failed to assign good cause
for his previous non appearance before
the Tribunal and the cause assigned by
the registered Clerk of Shri S.K.Khurana,
who is neither party nor the counsel of
the petitioner, could not have been
accepted. Therefore the order dated
04.10.2023 has also rightly been passed
in accordance with law by the Tribunal.
This court does not find any illegality or
error in the impugned orders, which may
call for any interference by this court.
The petition is misconceived and lacks
merit.

17. The petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 12 ILRA 507
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT KUMAR, J.

Matters U/A 227 No. 8279 of 2022 (Civil)

Pramila Tiwari ...Petitioner
Versus
Anil Kumar Mishra & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anand Kumar Singh, Sri Dinesh Kumar
Singh, Sri Rahul Sahai, Sri Vinod Kr.
Pandey
Counsel for the Respondents:
Sri Uday Bhan Mishra, Sri Rituvendra Singh
Nagvanshi, Sri Uady Bhan Mishra

A. Civil Law - Constitution of India,1950Article 227-Indian Registration Act, 1908Section 49-U.P. Zamindari Abolition and
Land
Reforms
Act,1950-Will-ProbateDevolution
of
interest-Registration
of
document-Registration
of
deeds
and
documents put in Entry-6 of Seventh
Schedule,
List
III-Section
49
of
Registration Act were not applicable on
23.08.2004 with regard to a registered
will generally-But bringing in of provision
of registration of a Will by the amendment
of Act of 1950 would definitely bring into
play the effects of non-registration of a
document which was required to be
compulsory registered under Section 49 of
Registration Act-Question of legislative
competence of State in incorporating a
provision which find to be prima facie
repugnant to provisions as contained
under Registration Act in absence of
Presidential assent in Amendment Act No.
27 of 2004-Direction issued.(Para 1 to 17)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Shobhnath Dube, In Re : Late Kashinath
Dube (2015) 128 RD 507

2. Jahan Singh Vs St. of U.P. (2017) 6 ADJ 615

3. Babu Ram Vs Santokh Singh (deceased) thru
his LRs & ors. (2019) 14 SCC 162

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Ajit Kumar, J.)

1. 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
508 INDIAN LAW REPORTS ALLAHABAD SERIES
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 reported in (2015)
128 RD 507 and in Jahan Singh vs. State
of U.P. reported in 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 subjectmatter 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
12 All. Pramila Tiwari Vs. Anil Kumar Mishra & Ors.
509
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. 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
510 INDIAN LAW REPORTS ALLAHABAD SERIES
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
:-

Sevent
h
Sched
ule
Government of India Act
1935
Constitution of
India
LIST I 54. Taxes on income
other than agricultural
income.
55. Taxes on the capital
value of the assets,
exclusive
of
agricultural
land,
of
individuals
and
companies;
56-A Estate duty in
respect
of
property
other than agricultural
land.
56. Duties in respect of
succession to property
other than agricultural
land.

82.
Taxes
on
income
other
than agricultural
income.
86. Taxes on the
capital value of
the
assets,
exclusive
of
agricultural land,
of
individuals
and companies;
taxes
on
the
capital
of
companies.
87. Estate duty
in
respect
of
property
other
than agricultural
land.
88.
Duties
in
respect
of
succession
to
property
other
than agricultural
land.
12 All. Pramila Tiwari Vs. Anil Kumar Mishra & Ors.
511
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 cattle-
trespass.
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.
27.
Trade
and
commerce within the
Province; markets and
fairs; money lending
and money lenders.
41.
Taxes
on
agricultural income.
43. Duties in respect
of
succession
to
agricultural land.
43-A Estate duty in
respect of agricultural
land.

14. Agriculture,
including
agricultural
education
and
research,
protection
against
pests
and prevention
of
plant
diseases.
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.

30.Moneylending
and
moneylenders;
relief
of
agricultural
indebtedness
46. Taxes on
agricultural
income.
47. Duties in
respect
of
succession
to
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
5.
Marriage
and
divorce;
infants
and
minors;
adoption;
wills, intestacy
and
succession;
joint
family
and partition;
regards
agricultural
land.

8. Transfer of property
other than agriculture
land;
registration
of
deeds and documents.

all matters in
respect
of
which parties
in
judicial
proceedings
were
immediately
before
the
commenceme
nt
of
this
Constitution
subject to their
personal law.
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
512 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
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 reported in 2019 (14) SCC
162 (Babu Ram vs. Santokh Singh
(deceased) through his LRs and others.
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
12 All. Santosh Singh Vs. State of U.P. & Anr.
513
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. 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 along with
the complete set of the paper-book to Sri
Ankur Tandon who would in his turn
provide the same to the learned Advocate
General.
----------
(2023) 12 ILRA 513
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Misc. Bail Cancellation Application No.
590 of 2023

Santosh Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Manu Sharma, Sri Shiv Shankar Singh

Counsel for the Opposite Parties:
G.A., Sri Rajkumar Verma

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 173(2) & 482 -
Indian Penal Code, 1860 - Sections
376(3), 323, 504 & 506 - The Protection of
Children from Sexual Offences (POCSO)
Act, 2012 - Sections 3 & 4 - Bail
cancellation Application - for cancel the Bail of
opposite party no. 2 granted by court below -
FIR - allegations are that opposite party no. 2
enticed away the minor daughter of applicant
and committed rape with her - investigation -