The importance of conducting an enquiry under Rule 69 of the Registration Rules for posthumous registration of a Will to protect the interests of all concerned parties.

1. The Petitioner has approached this Court for Writ of Mandamus, directing the Respondents to release the Will dated 24.6.2009, said to have been executed by one Mrs. Saraswathyammal. According to the Petitioner, the said Mrs. Saraswathyammal is Petitioner’s paternal aunt (father’s sister). She is stated to have executed the Will dated 24.6.2009 during her life time bequeathing her property to the Petitioner and she subsequently died on 10.11.2009.

2. It is the further case of the Petitioner that the Petitioner submitted the Will for posthumous registration to the Second Respondent on 22.3.2010. However, the Second Respondent admitting the above Will under the document No.P30 of 2010 failed to release the document. Therefore, the Petitioner has come before this Court for the Writ of Mandamus.

3. N. Nagusha, learned Counsel for the Petitioner submitted that the Registrar has got no jurisdiction to retain the document. He referred to Section 40 of the Registration Act 1908, which is extracted as follows:

“40. Persons entitled to present Wills and authorities to adopt –

(1) The testator or after his death any person claiming as executor or otherwise under a Will, may present it to any Registrar or Sub-Registrar for registration.

(2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any registrar or Sub-Registrar for registration.”

4. The learned Counsel submitted that the Petitioner complied with Section 40 of the Act as he is the sole beneficiary under the Will and therefore the Registrar is required to return the Will.

5. Though it appears that the Petitioner has complied with Section 40 of the Registration Act, a perusal of the alleged Will dated 24.6.2009 would show that the testator’s husband predeceased the Testatrix and she already stated to have settled some properties in favour of sister’s son and daughter and the relevant portion of the Will reads as follows:

TAMIL

6. The aforesaid statement would reveal that the Testator got close relatives and in fact the testator is stated to have given properties in favour of her sister’s son and daughter. However, those relatives are not made as parties to the Writ Petition. Since the Will is sought to be presented posthumously, this Court without hearing the case of the other close relatives, cannot issue Mandamus to the authorities to release document. Moreover, the registration would give more evidentiary value to the Will and it will enable the Petitioner to have a march over right of any other interested and connected person. It has been held by the Hon’ble Supreme Court in Shanthi Budhiya Vesta Patel v. Nirmala Jayaprakash Tiwari, 2010 (5) SCC 104, that a registered document has a lot of sanctity attached to it. The extraordinary circumstance is that the Will is sought to be registered posthumously under Section 40 of the Act.

7. As rightly pointed out by Mr. Subramanian, learned Additional Government Pleader, Rule 69 of the Registration Rules throws light upon the procedure to be adopted in such type of cases. Rule 69 is extracted as follows:

“69 When a Will or an authority to adopt is presented for registration after the death of the testator or the donor, the Registering Officer shall fix a day for the enquiry contemplated by Section 41(2) of the Act and shall cause notice of the enquiry (a) to be served on the persons to whom in his opinion special notice should be given (b) to be posted in a conspicuous part of the Registration Office and (c) to be published (i) in the Gazette of the District in which the Testator or donor lived, (ii) in the Gazette of the District in which the property of the deceased is situated and (iii) in the villages where the Testator or donor lived, where interested parties may reside and where the property of the deceased is situated. The cost of the service of the notice and of its publication shall be levied in advance from the person who presents the document for regis