Karnataka High Court: In Miscellaneous First Appeals filed by the appellants challenging the common order dated 08-04-2025 passed by the Trial Court, which rejected their Interlocutory Application (I.A.) in a suit for separation and possession of ancestral property by doubting the genuineness of a Will solely due to its posthumous registration, a Single-Judge Bench of Ramachandra D. Huddar, J.*, set aside the order of the Trial Court. The Court held posthumous registration of Will valid and that there is no statutory time limit for the registration of a Will, and its validity is determined by its execution and attestation as prescribed under Section 63 of the Succession Act, 1925, not by the timing of its registration.
Background
The plaintiff, claiming to be the daughter of deceased through his first wife along with defendant Nos. 3 to 7 as her siblings, had filed a suit against the defendants for partition and separate possession of joint family ancestral properties. The appellant (i.e., defendant No. 2), disputed the plaintiff’s relationship with the deceased, contending that her mother was merely a caretaker, and asserted that he was the only son and legal heir born to the lawful wife of the deceased. The appellant claimed the suit properties were self-acquired by the father of the deceased, who executed a registered Will on 15-11-1982 in favor of his son. Subsequently, the deceased executed a registered Will on 02-05-2018, bequeathing all properties to the defendant, which was registered posthumously on 15-02-2019, following his death on 16-07-2018.
During the suit’s pendency, the appellant filed an I.A. seeking a temporary injunction to restrain the plaintiff from obstructing the fencing of the schedule properties, arguing it was necessary to prevent third-party encroachment and would not disturb possession or alter the land’s character. Simultaneously, the plaintiff filed an I.A. seeking injunction against the appellant from interfering with her alleged joint possession and right to erect fencing around some of the suit properties.
By a common order dated 08-04-2025, the Trial Court dismissed the I.A. filed by the appellant and allowed I.A. filed by the plaintiff and directed both parties to maintain status quo but granted liberty to the plaintiff to fence the property, denying similar relief to the appellant. Aggrieved by this order of the Trial Court, the appellant filed the present Miscellaneous First Appeals under Order XLIII Rule 1 (r) of Civil Procedure Code (‘CPC’).
Analysis and Decision:
The Court noted that the Trial Court mainly relied on Section 23 of the Registration Act, 1908, which provides that documents other than Wills must be presented for registration within four months from the date of execution. The Trial Court concluded that the Will was suspicious and concocted because it was registered on 15-02-2019, six months after the testator’s death.
The Court observed that such a finding reflected a fundamental misinterpretation of the Registration Act, 1908, and was contrary to the established legal principles of testamentary law. The Court noted that Section 23 of the Registration Act provides that subject to the provisions contained in Sections 24, 25 and 26, no document other than a Will, shall be accepted for the registration unless presented for that purpose to the proper officer within four months from the date of its execution. The Court emphasized that the expression ‘no document other than a Will’ in Section 23 expressly excludes Wills from the four-month limitation period, recognizing the unique nature of testamentary instruments. Furthermore, Section 27 of the Registration Act deals with the time for registration when a document affects immovable property contains a proviso that reinforces the position that a Will may be presented at any time.
The Court noted that,
“the combined reading of Sections 23 and 27 of the Registration Act, 1908, clearly do establishes that, Wills are not subject to the four months limitation period applicable to other documents, and may be registered either before or after the death of the testator. The statute, thus, acknowledges the optional and non-compulsory nature of a Will registration and permits its registration at any point in time, without prejudice to its validity.”
In the instant case the Will was registered after the death of the testator as permitted under the above provisions. There is no statutory requirement that a Will must be registered within the lifetime of the testator. In fact, the registration of a Will is not even mandatory under Indian law. The Court noted that as per Section 18(e) of the Registration Act, Wills are recognised in the optional category of document for registration purposes. What is material for a Will is its valid execution and attestation under Section 63 of the Indian Succession Act, 1925, not the timing of its registration.
The Court observed that the Trial Court, while exercising jurisdiction under Order XXXIX Rule 1 and 2 of CPC, prematurely ventured into the question of genuineness of the Will, treating the date of registration as conclusive evidence of forgery, which was impermissible at the interlocutory stage. The Court reiterated that the veracity of a Will, especially a registered one, must be tested through evidence and cross-examination during trial, and cannot be prejudged solely on the grounds of the date of registration. The Court further observed that the Will in question bore the testator’s signature and was a registered document. Posthumous registration is legally valid and does not render Will suspicious.
The Court noted that,
“the Trial Court, by relying exclusively on the delay in registration, elevated a procedural aspect into a substantive defect, thereby misapplying the Registration Act and casting unwarranted doubt on the Will without examining its execution, attestation or surrounding circumstances. Moreover, the Trial Court ignored the fact that a registered Will carries a rebuttable presumption of genuineness and the burden of disproving it lies on the party alleging its validity but cannot be discarded for delay alone. This misapplication of law has serious consequences, as it formed the primary ground on which the Trial Court rejected the appellant’s application for injunction.”
The Court observed that the Trial Court’s adjudication amounted to jurisdictional error. The appellant merely sought erection of fence to protect the vacant land from third party encroachment which was a precautionary measure than an act of aggression. The Trial Court misconstrued this as hostile claim and while granting petitioner’s injunction to erect a fence, despite herself claiming joint possession of the allegedly undivided property. The Trial Court created an imbalance in the status quo. The settled position of law is that an injunction should not be granted against a co-sharer, except in exceptional cases, and certainly not when the issue of relationship and legitimacy itself is partly contested between the parties.
The Trial Court erred in treating the posthumous registration of the Will as indicative of fraud, when in fact the Registration Act permits such registration and does not prescribe any outer limit for it.
In light of the afore-stated reasons, the Court allowed the Appeals, setting aside the common order dated 08-04-2025 passed by the Trial Court. The I.A. filed by the appellant was allowed subject to the condition that the fencing shall be for the limited purpose of preventing third party encroachment and shall not interfere with any existing possession or disturb the character of the land. The Court further directed both the parties to maintain the status quo in respect of possession, use and enjoyment of the suit to schedule property until the disposal of the suit.
[M.D. Devamma v. K.V. Kalavathi, 2025 SCC OnLine Kar 10045, decided on 07-07-2025.]
*Judgment authored by: Justice Ramachandra D. Huddar
Advocates who appeared in this case:
For the Appellant: M.R. Rajagopal, Senior Counsel for Thilakraj S.V, Advocate
For the Respondent: Keshav R. Agnihotri, Advocate