IMPORTANT POINT
The amendment to Section 169(3) of the U.P.Z.A. & L.R. Act, 1950, mandating compulsory registration of wills, is void due to its repugnancy to the Indian Registration Act, 1908, and the lack of presidential assent.

JUDGMENT :

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, 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:

(1) Whether the State legislature was competent in amending the Act of 1950 in the matter of 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 Ac