The main legal point established in the judgment is that a suit under Section 77 of the Registration Act, 1908 for posthumous registration of a Will is not maintainable and that a person has a right to defend the suit but not to oppose the registration of a Will in proceedings under Section 40/41 of the Act.

I have heard Sri V. K. S. Chaudhary, Senior Advocate assisted by Sri Deo Prakash Singh learned counsel appearing for the appellant and Sri M. D. Singh Shekhar, Senior Advocate assisted by Sri P. K. Kesari learned counsel for the respondent No.3, the main contesting party. The other respondents are only formal in nature.

2. The suit/appeal owes its origin to a dispute relating to ownership of a plot of land 22-B Church Lane, Allahabad on which a huge house was constructed by one Tribhuwan Sukh Tiwari who was an Assistant Commissioner of Excise, U. P. On his death the said property had devolved upon his wife Smt. Ram Lalli who died on 21-3-1979. They had no issue. The two nephews of late Tribhuwan Sukh Tiwari set up two contradictory unregistered wills of Smt. Ram Lalli. One dated 20-2-1979 by Rama, Pati and the other dated 11-3-1979 by Girja Prasad, both sons of Param Sukh one of the elder brothers of late Tribhuwan Sukh Tiwari. Girja Prasad presented the Will dated 11-3-1979 of Smt. Ram Lalli which is said to be in his favour for registration before the Registering Authority on 25-4-1979. The registration of the said Will was refused to him by an order dated 10-11-1980 against which he preferred an appeal under Section 72 of the Registration Act, 1908. It was dismissed on 27-3-1982. Therefore, he instituted Original suit No. 289 of 1982 on 21-4-1982 under Section 77 of the Registration Act, 1908 for a decree directing the Registering Authority to register the Will. In the suit the other nephew Rama Pati was impleaded as one of the defendants as he had set up a different Will dated 20-7-1979.

The suit after due contest was dismissed vide judgment and order dated 24-9-1994 passed by the Court of first instance. However, in appeal the judgment, order and decree of the court of first instance has been set aside and the suit has been decreed vide judgment and order dated 17-10-2007 with the direction to the Registering Authority to register the Will. The present second appeal as such has been preferred by one of the defendants i.e. Rama Pati assailing the judgment order and decree passed by the lower appellate court.

3. Whether a suit under Section 77 of the Registration Act, 1908 for posthumous registration of a Will is maintainable is the core question of substance which has been raised in the present appeal.

4. However, apart from the above, on the preliminary objection raised, another important substantial question of law arises in this appeal i.e. whether the appellant has any legal right to oppose the registration of the Will and in turn to maintain the appeal?

5. Both the above legal questions are substantial in nature as they are debatable and have not been settled previously by any decision of the Supreme Court (at least none has been brought to my notice). They may also ultimately affect the rights of the parties in the immovable properties covered by the Will.: Besides, the above questions are pure questions of law which can be decided effectively, on the admitted facts alone without the aid of any evidence. Learned counsel for the parties on being made known of these two questions, have eloquently addressed the Court on merit and therefore, I have ventured to proceed and decide the appeal on the above aspects finally at the admission stage.

6. The maintainability of the suit is a pure question of law which goes to the root of the jurisdiction rendering the decree so passed in such a suit to be a nullity. Therefore, even if such an objection/ground was not raised I in the Courts below in so many words it can certainly be raised and considered in second appeal before the High Court.

7. The Registration Act, 1908 (hereinafter in short as an Act) contemplates two types of documents for the purposes of registration. First, the documents of which registration is mandatory under law. These documents have been enumerated under Section 17 of the Act. The other are documents of which registration is optional. The list of such do