# Pramila Tiwari v. Anil Kumar Mishra & Ors

- **Citation:** (2024) 5 ILRA 1622
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-10
- **Case number:** Matters Under Article 227 No. 8279 of 2022
- **Bench:** Siddhartha Varma, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramila-tiwari-v-anil-kumar-mishra-ors-52004
- **Pages:** 10

## Headnote

(A) The Constitution of India, 1950 -
Matters under Article 227 - Supervisory
jurisdiction - Reference to answer - The
Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950 - (U.P. Amended Act , 27
of 2004) - Section 169(3) - compulsory
registration of Will, The Indian Registration
Act, 1908 - Section 17 - registration of
documents and deeds , Section 40 - Persons
entitled to present wills and authorities to
adopt - The Government of India Act, 1935 -
The Constitution of India, 1950 - Article
245(2) , 246, 249 ,252 , 253 ,251 & 254 -
Every legislation must ensure certainty as to
its application and exercise of power under it
- Object of 2004 Amendment - to prevent
forged wills and promote justice, economic
stability, and rule of law - Agriculture reforms
are influenced by socio-economic conditions
of villagers in remote areas.(Para -25,34)

Two contradictory views by two Co -ordinate
benches - regarding compulsory registration of wills
under the U.P.Z.A. & L.R. Act 1950 - Reference to
answer - whether compulsory registration of will ,
introduced in Section 169(3) of the U.P.Z.A. & L.R.
Act, 1950 by the Amendment Act namely U.P. Act
No. 26 of 2004, is prospective or retrospective in
nature.

HELD:- Amendment of Section 169(3) of the
U.P.Z.A.L.R. Act, which requires a Will to be
compulsorily registered, is void to the extent it
provides for registration of Will as it is repugnant to
Section 17 read with Section 40 of the Indian
Registration Act, 1908. Wills in Uttar Pradesh are
not required to be registered. Petition be laid before
Bench concerned for decision on merits.(Para - 36,
37,38)

Reference answered. (E-7)

List of Cases cited:

## Text

1622 INDIAN LAW REPORTS ALLAHABAD SERIES

iv. that the applicant shall not
tamper with the evidence during the trial;

v. that the applicant shall not
pressurize/
intimidate
the
prosecution
witness;

vi. that the applicant shall appear
before the trial court on each date fixed
unless personal presence is exempted;

30. In case of breach of any of the
above conditions, the court concerned shall
have the liberty to cancel the bail granted to
the applicant.

31. It is made clear that observations
made in granting anticipatory bail to the
applicant shall not in any way affect the
learned
trial
Judge
in
forming
his
independent opinion based on the testimony
of the witnesses.
----------
(2024) 5 ILRA 1622
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2024

BEFORE

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

Matters Under Article 227 No. 8279 of 2022

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

Counsel for the Petitioner:
Anand Kumar Singh, Dinesh Kumar Singh,
Rahul Sahai, Vinod Kr. Pandey

Counsel for the Respondents:
Rituvendra Singh Nagvanshi, Uday Bhan
Mishra

(A) The Constitution of India, 1950 -
Matters under Article 227 - Supervisory
jurisdiction - Reference to answer - The
Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950 - (U.P. Amended Act , 27
of 2004) - Section 169(3) - compulsory
registration of Will, The Indian Registration
Act, 1908 - Section 17 - registration of
documents and deeds , Section 40 - Persons
entitled to present wills and authorities to
adopt - The Government of India Act, 1935 -
The Constitution of India, 1950 - Article
245(2) , 246, 249 ,252 , 253 ,251 & 254 -
Every legislation must ensure certainty as to
its application and exercise of power under it
- Object of 2004 Amendment - to prevent
forged wills and promote justice, economic
stability, and rule of law - Agriculture reforms
are influenced by socio-economic conditions
of villagers in remote areas.(Para -25,34)

Two contradictory views by two Co -ordinate
benches - regarding compulsory registration of wills
under the U.P.Z.A. & L.R. Act 1950 - Reference to
answer - whether compulsory registration of will ,
introduced in Section 169(3) of the U.P.Z.A. & L.R.
Act, 1950 by the Amendment Act namely U.P. Act
No. 26 of 2004, is prospective or retrospective in
nature.

HELD:- Amendment of Section 169(3) of the
U.P.Z.A.L.R. Act, which requires a Will to be
compulsorily registered, is void to the extent it
provides for registration of Will as it is repugnant to
Section 17 read with Section 40 of the Indian
Registration Act, 1908. Wills in Uttar Pradesh are
not required to be registered. Petition be laid before
Bench concerned for decision on merits.(Para - 36,
37,38)

Reference answered. (E-7)

List of Cases cited:

1. Sobnath Dube, In the Matter of: Late
Kashinath Dube , 2015 (0) SCC (All) 674

2. Jahan Singh Vs St. of U.P. & ors , (Writ
Petition No.1570 of 2017)

3. Rani Purnima Devi & anr. Vs Kumar
Khagendra Narayan Dev & anr , AIR 1962
567

4. Babu Ram Vs Santokh Singh (deceased) , 2019
(14) SCC 162
5 All. Pramila Tiwari Vs. Anil Kumar Mishra & Ors.
1623
(Delivered by Hon'ble Siddhartha Varma,
J.
&
Hon'ble Ajit Kumar, J.)

1. These proceedings are in pursuance
to the reference order of Hon'ble the Chief
Justice dated 25.04.2023 to answer the
reference
framed
by
Hon'ble
Vivek
Chaudhary, J. on 14.10.2022 which is as
under:

"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 by the Amendment
Act namely U.P. Act No. 26 of 2004, is
prospective or retrospective in nature ?"

2. The learned Single Judge was faced
with two contradictory views taken by two
Co-ordinate Benches of this Court: one in
the matter of Sobnath Dube, In the Matter
of: Late Kashinath Dube; reported in 2015
(0) SCC (All) 674 wherein it was held that
with the amendment of UP Zamindari
Abolition & Land Reforms (U.P.Z.A. &
L.R.) Act, 1950 (hereinafter referred to as
'the Act of 1950') incorporating the new
provisions as Section 169(3) in it by the
State legislature, making registration of Will
compulsory, will be prospective and Will
executed prior to the date giving effect to the
amendment by the State Government will
not require to be registered compulsorily,
whereas in Jahan Singh v. State of UP &
ors (Writ Petition No.1570 of 2017),
another Co-ordinate Bench in its judgment
dated 18.05.2017 disagreed with the view
taken in Sobnath Dube (supra) on the
ground that unregistered Will taking effect
after the date of amendment stands hit by
amended provisions of 169(3) of the Act,
1950. In Sobnath Dube's case (supra) a
view was taken, since a Will becomes
effective only upon the death of the testator,
every such Will which may come into effect
after the amendment of Act of 2004, is
required to be compulsorily registered.

3. At the initial stage, when we heard
the matter, we re-framed the reference as
under:

"whether 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:"

4. Thereafter, when we further
examined the matter there arose an issue as
to
whether
State
legislature
without
President's
assent
could
have
made
registration
of
Will
compulsory
by
incorporating a provision to this effect in
law, as Will, intestacy and succession under
the Constitution fell as subject matter in the
Concurrent List and Central Legislation was
already there touching the subject of
registration of Will under the Registration
Act, 1908.

5. We further noticed that in the
judgment of Jahan Singh (supra) while
holding that those Wills which would take
effect after 23.08.2004, were required
compulsorily to be registered, had made
an observation that "the nuances of law for
holding that unregistered Will was not hit
by the provisions of Section 169(3) of the
Act, have not been examined" and this was
taken as a reason to disagree with the view
taken in the judgment of Sobnath Dube
(supra). We in our order dated 31.11.2023
had even invited arguments on the above
points.

6. Two questions are thus posed to us
for an effective decision on the reference
framed as above:
1624 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) Whether the State legislature
was competent in amending the Act of 1950
in the matterof wills, intestacy and
successions qua agricultural holdings in the
face of the fact that the Registration Act,
1908 makes registration of will only
optional at the end of the testator and even
provides
a
registration
posthumously.
Whether then to that extent the U.P.
Amendment Act, having not received the
presidential assent was an incompetent piece
of legislation.

2) What nuances of law, relating to
the rights in agricultural holdings and
incidental issues, can be said to be in favour
of agricultural holdings when the occupied
field of registration governed by a Central
Legislation, was being undone by the
Amendment Act of Uttar Pradesh by Act
No.27 of 2004 making the registration of
Wills compulsory.

7. Accordingly, we split up the
reference in two parts as under:

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?

8. The scheme of legislative relations
under the Constitution has an inbuilt tone of
supremacy of union legislature even in
respect of the areas/subjects where it has
exceeded its legislative territorial limits
[vide Article 245(2)] or where it does make
enactments concerning the State subject
matters so reserved, in national interest (vide
Article 249). The Union legislature has also
exclusive power to make enactments in the
areas not covered in any of the lists provided
under the Constitution. It has also exclusive
right to legislate for giving effect to
international agreements and treaties (vide
Article 253) and also to make laws
concerning the State with the consent of two
or more States to make them applicable to
those very states (vide Article 252).

9. Within the scheme of legislative
relations, the Constitution underlines its
federal feature by prescribing for separation
of powers in legislative fields reserved for
Union and States and also areas/subjects
where both Union and State can exercise
legislative functions. These three lists,
namely the Union List, State List and the
Concurrent
List
as
conceived
and
contemplated under the Constitution (vide
Article 246), are provided under its 7th
Schedule. These lists contain a number of
subjects upon which (and the areas
connected
therewith)
the
competent
legislature can make laws. While the Union
List and the State List reserve subjects
exclusively for Union and the State
respectively, the concurrent list provides for
subjects where both Union and State can
legislate but supremacy vests with the Union
legislature if already occupying a field. Ofcourse a Central Act in its operation and
application
to
the
State
can
be
modified/amended with the assent of the
President of India (vide Article 254). Still
further, a State law being found contrary to
the law made by Union would be void to the
extent of such repugnancy, if any (vide
Article 251 & 254).

10. Looking to the above scheme of
legislative relations under the Constitution,
we now proceed to examine the relevant
provision of UP Zamindari Abolition of
5 All. Pramila Tiwari Vs. Anil Kumar Mishra & Ors.
1625
Land Reforms Act, 1950 (Act of 1950) and
competence of the State legislature to
legislate in that regard. The object with
which Act of 1950 was enacted has been to
remove intermediaries between the tiller of
the land and the State. The zamindars who
were
intermediaries
were
chiefly
responsible for the oppression of farmers
whose status got reduced to bonded labours,
with the passage of time,even in respect of
their own land holdings and private money
lending resulted in enriching the money
lenders by occupying the land of the farmers
bit by bit. Several provisions of the Act of
1950 are aimed at revolutionary agricultural
reforms to ensure that poor farmers be no
further defrauded at the end of the rich
private
money
lenders
and
so
also
provisions were made relating to transfer of
land by sale, succession and devolution of
rights in agricultural holdings.

11. On 08.08.1946, when United
Provinces Legislative Assembly passed a
resolution for removal of zamindari in the
State, the Government of India Act, 1935
was in force. List-I under the said Act
included taxes on income other than the
agricultural income (vide Entry-54), taxes
on capital value of assets to the exclusion of
agricultural land of the individuals and
companies (vide Entry-55) and succession
to property other than agricultural land
(Vide Entry-56), whereas List-II contained
subject matters relating to agriculture and its
allied and related fields, and research and
development
including
the
field
of
veterinary science and also cattle trespass
etc (vide Entry-20). Entry-21 of the State list
exclusively provided for rights relating to
agricultural land including by way of
devolution. Entry-21 ran as under:

"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."

12. Further Entry-27 of the State List
provided for trade and commerce within the
Province; markets and fairs; money lending
and money lenders. Entry-41 provided for
taxes on agriculture income, Entry- 43
provided for duties in respect of succession
to agriculture list. Entry-43(A) provided for
estate duty in respect of agricultural land.

13. List-III of the Government of India
Act, 1935 (in short, 'the Act, 1935') provided
for marriage and divorce, infants and
minors, adoption (Vide Entry-6); Wills,
intestacy and succession, save as regards
agricultural land (Vide Entry-7); and
transfer of property other than agricultural
land, registration of deeds and documents
(Vide Entry-8).

14. From the above referred and
quoted entries as contained in three different
lists of the Act, 1935, it is clear that
devolution of agricultural land fell in the
subjects of the State List but Wills,
intestacy and succession in general fell in
List-III (save agricultural land). This
shows that agriculture and its related
subjects
like
succession,
transfer,
devolution
were
earlier
exclusively
assigned to the provincial legislature to
exercise its power.

15. The Indian Registration Act, 1908
was enacted by the then British Imperial
Government and stands saved and was
saved both under the Government of India
Act, 1935 and also saved by Article 244 (1)
of the Constitution of India.
1626 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The Registration Act did not enlist
the document of Will in the list of
documents (vide Section 17) that are
required to be registered and instead, made
its registration optional at the discretion of
the testator and even made provisions for
registration of Wills posthumously by virtue
of Section 40 of the said Act. This was the
only enactment in force for the purposes of
registration of deeds and documents and was
applicable to the then united provinces and
no provincial act provided a document of
Will to be registered compulsorily by
exercising power vide Entry-7 of the Act,
1935.

17. Intestacy refers to a condition of
any person dying without executing a Will
and thus leaving his/her estate to devolve upon
legitimate heirs as per the hierarchy set by a
law enacted, whereas Wills are such legal
documents that outline a person's wish as to
the distribution of his/her estates after his/her
death. This right to provide for distribution
would be an exception to the general rule of
succession and so Wills may devolve property
of the testator as per his/her wish upon any
individual, body or trust to the exclusion of
natural and legal heirs.

18. Thus, a document of Will, acquires
importance for devolution of estate but the
law never required it to be registered
whether the property was an agricultural
land or whether it was a property or an estate
other than agriculture. When people of India
adopted the Constitution, the Constitutional
provisions made a departure in assigning
subjects of rights qua agricultural land by
deleting words and expressions "devolution
of agricultural land" in Entry-18 of the State
List. Entry-18 runs 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 of alienation of
agricultural land; land improvement and
agricultural loans; colonization."

19. Interestingly, Wills and Intestacy
continued to be subject in the concurrent list
vide Entry-5 that corresponds to Entry-6 &
7 of the List III of the Act, 1935 but words
and
expressions
"save
as
regards
agricultural land" were deleted. Entry-5 of
the concurrent list under Schedule-7 of the
Constitution runs as under:

"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."

20. 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. This Article in its
entirety is reproduced hereinunder:

"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
5 All. Pramila Tiwari Vs. Anil Kumar Mishra & Ors.
1627
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."

(emphasis added)

21. The Act of 1950 was enacted and was
reserved for consideration of President and
was assented to and came into operation w.e.f.
26.01.1951. The Act of 1950 having
presidential nod, shall have overriding effect
over and above all State laws and Central laws
touching the subject matters provided under
the Act of 1950, by virtue of provisions
contained under Article 254 (supra).

22. The newly amended provision of
169(3) vide amending Act No.27 of 2004
makes registration of Will compulsory.
While the original provision under subsection (3) of Section 169 of the Act of 1950
provided for aWill to "be in writing and
attested by two persons" the words and
expressions "and registered" were further
added. Thus, new sub-section (3) of Section
169 runs as under:

"169. Bequest by a Bhumidhar-

(1) [* * *]

(2) [* * *]

(3)
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]?"
(emphasis added)

23. Law relating to registration of
documents and deeds being provided under
the Registration Act, 1908 vide its Section
17 refers to "certain documents" to be
registered. So, in the first instance, it is this
act that required amendment by the State to
make its modified application in the State
for getting document of registration ofWill
enlisted under Section 17 as there exists no
pre-existing State law touching the subject
matter. Accordingly, the provisions as
incorporated under the ZA Act vide 169(3)
of the Act of 1950 after its amendment in
2004 became contrary to the pre-existing
Central Act. In other words, the provisions
contained under Section 169(3) of the Act of
1950 and Section 17 read with Section 40
come in conflict with each other. This makes
the State Act provision to be repugnant to
the pre-existing Central Act and State
Amendment
Act,
2004
having
no
presidential assent is liable to be rendered
void.

24. One of the arguments was that
instead of striking down the concerned
provision of law we could read it down and
bring it to the vicinities of the provisions of
Section 17 and Section 40 of the
Registration Act that make registration of
Will optional and that it would be even
registered posthumously. But looking to the
objects and nuances of law that have guided
the learned Single Judge in Jahan Singh's
case (supra) to hold that every Will
1628 INDIAN LAW REPORTS ALLAHABAD SERIES
becoming effective after 2004 Amendment
would be void if not registered, makes it
mandatory for us to navigate these nuances
through socio-economic background of the
citizenry of the State of Uttar Pradesh.

25. The object with which 2004
Amendment had been introduced was to
avoid proliferation of forged wills. Law
reforms are always aimed at ensuring access
to justice and promoting economic stability
and enhancing rule of law. What laws may
be helpful to people, must always be seen in
the background of ground realities of life of
common
man.
Enactments
regarding
agriculture reforms are particularly seen in
the
background
of
socio-economic
conditions of villagers living largely in
remote areas.

26. India's NITI Ayog's report released
just two and a half years ago in November,
2021 states 38% of total population in U.P.
is
multidimensionally
poor,
meaning
thereby people lack good health, education
and standard of living. We sitting in Kaval
towns and metropolis with multiplexes, Star
hotels and high rise buildings, cannot even
imagine in what condition majority of State
population lives in small towns and villages.
We have in fact no idea as to the magnitude
of monetary poverty and the lack of basic
education and health infrastructure in our
rural areas.

27. Our state has largely an agrarian
economy and all farmers are not literate.
There are areas in remote villages in Uttar
Pradesh without motorable roads and people
are not aware of the outside world. Whatever
material is necessary to have healthy crops
at least twice a year does not reach to them
and resources of irrigation are not catering
the need of every farmer. Many farmers in
the State still depend upon rain water and are
barely getting two square meals. They are
still oppressed by rich money lenders and if
their children leave villages to study in
cities, the poor farmers very often not only
borrow money but even on getting ill are not
properly getting good health care.

28. It is quite possible that a poor
farmer having bhumidhari rights may be an
illiterate person who can be easily fooled or
mislead. A marginal farmer owing to his pity
condition may get so circumstanced to be
easily mislead by unscrupulous elements of
the village to execute a Will in favour of a
third party to the exclusion of natural heirs.
It was, therefore, considered appropriate to
devise a mechanism to minimize this fraud.
It was thought that forgery would be
minimised and, therefore, the law was
brought in for compulsory registration of
Wills. However, one cannot ignore the flipside of this as there can equally be a case
where a registered document is executed in
suspicious circumstances, which if proved,
would ultimately render the registered
document void. The observations made by
the Supreme Court in Rani Purnima Devi &
anr v. Kumar Khagendra Narayan Dev &
anr; AIR 1962 567 is worth mentioning
hereinunder:

"There is no doubt that 'if a will
has been registered, that is a circumstance
which
may,
having
regard
to
the
circumstances, prove its genuineness. But
the mere fact that a will is registered will not
by itself be sufficient to dispel all suspicion
regarding it where suspicion exists, without
submitting the evidence of registration to a
close examination. If the evidence as to
registration on a close examination reveals
that the registration was made in such a
manner that it was brought home to the
testator that the document of which he was
admitting execution was a will disposing of
5 All. Pramila Tiwari Vs. Anil Kumar Mishra & Ors.
1629
his property and thereafter he admitted its
execution and signed it in token thereof, the
registration will dispel the doubt as to the
genuineness of the will. But if the evidence
as to registration shows that it was done in
a perfunctory manner, that the officer
registering the will did not read it over to the
testator or did not bring home to him that he
was admitting the execution of a will or did
not satisfy himself in some other way (as, for
example, by seeing the testator reading the
will) that the testator knew that it was a will
the execution of which he was admitting, the
fact that the will Was registered would not
be of much value. It is not unknown that
registration may take place without the
executant really knowing what he was
registering. Law reports are full of cases in
which registered wills have not been acted
upon.......... Therefore, the mere fact of
registration may not by itself be enough to
dispel all suspicion that may attach to the
execution and attestation of a will; though
the fact that there has been registration
would be an important circumstance in
favour of the will being genuine if the
evidence as to registration establishes that
the testator admitted the execution of the
will after knowing that it was a will the
execution of which he was admitting."
(emphasis added)

29. Thus, a poor farmer may be
compelled to knock the door of Courts of
law and undergo the agony of a long drawn
litigation where rich may have an upper
hand. This is not only there for villagers but
equally may be seen in well developed
townships and cities where rich are eyeing
at nicely located properties.

30. There could equally be a case
where a person in his last days of life may
change his mind and may decide a different
distribution of his assets and properties from
what he had decided sometime ago. A Will
or wish that operated last in the mind of the
testator is definitely to prevail and that is
why the rule is that the last Will prevails. So
in the event non registration of Will is
rendered void then a person executing a
'Will' will be denied of his right to have
his/her "wish" or desire changed. His will to
subject his property to be succeeded as per
his wish would be denied to him. We can
take an instance, though hypothetical, where
a person gets a Will registered and this fact
gets disclosed to the beneficiaries under the
Will. They may get possession of the
document by force or otherwise and then
start ignoring the testator by leaving him in
a condition where he may not be able to
survive for want of proper care and
medicines. Such lust for property at the end
of beneficiaries cannot be ruled out. 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.

31. In so far as judgment in Jahan
Singh
(supra)
applies
the
rule
of
interpretation to justify the Amending Act
providing for compulsory registration of
Will even without the assent of the
President, we proceed to test the ratio of the
judgment as under.

32. Interpretation of a provision and
applying the legal principles, as the learned
Single Judge had in mind, within specific
legislative areas so as to hold that State
1630 INDIAN LAW REPORTS ALLAHABAD SERIES
Legislature
had
competence,
in
our
considered view, amounts to stretching of
principle of purposive interpretation too far
and reading more than the concept of
legislative relationship as is conceived of
under Chapter-11 of the Constitution to
justify a provision of law. There is no quarrel
to the principle that exercise of power entails
the grant of that power in every possible
way, but the question remains where to draw
that laxman rekha/line to render exercise of
power by State vis-a-vis the powers of the
Union. It should be in consonance with the
principles enshrined under the relevant
provisions of the constitution providing for
separation of powers under the Scheme of
Constitution.

33. Subject matter in issue being of
Concurrent List, it was open for the State to
get the pre-existing Central Act amended
before its application to the State and that
too by getting such an act the assent of the
President. The Wills, intestacy, succession
and transfer being in the Concurrent List,
without drawing any exception to the
agricultural land, the Act of 1950 was rightly
reserved for consideration of the President
and it also had the presidential assent. But
now by the Amending Act of 27 of 2004, the
State of Uttar Pradesh was seeking an
amendment in the U.P.Z.A.L.R. Act, which
in effect was amending the Registration Act,
1908. Such an Act by which the amendment
was being sought definitely required a
presidential assent.

34. Every legislation must ensure
certainty as to its application and exercise of
power under it. So to ensure this, when
subject matter falls within competence of
both the Union and the State Legislatures,
the provision of Article 251 will come into
play.

35. Our above view also finds support
in the judgment of Supreme Court in the
case of Babu Ram v. Santokh Singh
(deceased); 2019 (14) SCC 162. Paragraphs
18, 19 & 20 relevant for the case in hand are
being reproduced hereinunder:

"18. We now turn to the next stage
of discussion. Even if it be accepted that the
provisions of Section 22 would apply in
respect of succession to agricultural lands,
the question still remains whether the
preferential right could be enjoyed by one or
more the heirs. Would that part also be
within the competence of the Parliament?
The "right in or over land, land tenures ...."
are within the exclusive competence of the
State legislatures under Entry 18 of List II of
the Constitution. Pre-emption laws enacted
by Staet legislatures are examples where
preferential rights have been conferred upon
certain categories and classes of holders in
cases of certain transfers of agricultural
lands. Whether conferring a preferential
right by Section 22 would be consistent with
the basic idea and principles is the question.

19. We may consider the matter
with following three illustrations:

a) Three persons, unrelated to
each other, had jointly purchased an
agricultural holding, whereafter one of them
wished to dispose of his interest. The normal
principle of pre-emption may apply in the
matter and any of the other joint holders
could pre-empt the sale in accordance with
rights
conferred
in
that
behalf
by
appropriate State legislation.

b) If those three persons were real
brothers
or
sisters
and
had
jointly
purchased
an
agricultural
holding,
investing their own funds, again like the
above scenario, the right of pre-emption will
have to be purely in accordance with the
relevant provisions of the State legislation.
5 All. Abbas Ansari Vs. State of U.P.
1631

c) But, if, the very same three
persons in illustration b) had inherited an
agricultural holding and one of the them
was desirous of disposing of his or her
interest in the holding, the principles of
Section 22 of the Act would step in.

The reason is clear. The source of
title or interest of any of the heirs in the third
illustration, is purely through the succession
which is recognized in terms of the
provisions of the Act. Since the right or
interest itself is conferred by the provisions
of the Act, the manner in which said right
can be exercised has also been specified in
the very same legislation.

Therefore,
the
content
of
preferential right cannot be disassociated in
the present case from the principles of
succession. They are both part of the same
concept.

20. When the Parliament thought
of conferring the rights of succession in
respect of various properties including
agricultural holdings, it put a qualification
on the right to transfer to an outsider and
gave preferential rights to the other heirs
with a designed object. Under the Shastrik
Law, the interest of a coparcener would
devolve by principles of survivorship to
which an exception was made by virtue of
Section 6 of the Act. If the conditions
stipulated in Section 6 were satisfied, the
devolution of such interest of the deceased
would not go by survivorship but in
accordance with the provisions of Act. Since
the right itself in certain cases was created
for the first time by the provisions of the Act,
it was though fit to put a qualification so that
the properties belonging to the family would
be held within the family, to the extent
possible and no outsider would easily be
planted in the family properties. In our view,
it is with this objective that a preferential
right was conferred upon the remaining
heirs, in case any of the heirs was desirous
of transferring his interest in the property
that he received by way of succession under
the Act."

36. In view of the above exposition of
law and in view of what we have discussed
above in this judgment, we hold sub-Section
(3) of Section 169 of Act of 1950, in so far
as it requires a Will to be compulsorily
registered, to be repugnant to Section 17
read with Section 40 of the Indian
Registration Act, 1908 and hence we hold
the amendment of Section 169(3) of the
U.P.Z.A.L.R. Act to that extent void.

37. Thus, our answer, to the question
framed, is that 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.

38. Let petition be laid before the
Bench concerned for decision on merits of
the case, accordingly.
----------
(2024) 5 ILRA 1631
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.05.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Criminal Misc. Bail Application No. 10920 of
2023

Abbas Ansari ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant: