IMPORTANT POINT
The amendment requiring registration of wills is subject to legislative competence and may require presidential assent if it conflicts with central laws.

JUDGMENT :

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 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, (2015) 128 RD 507 and in Jahan Singh v. State of U.P., 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 subject-matter 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 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