In this blog post, Gurshabad Singh Sandhu, a student from Rayat and Bahra University School of Law, Mohali and pursuing Diploma in Entrepreneurship Administrative and Business Law from NUJS, Kolkata describes the process of registration of a will in Punjab.
DEFINITION OF A WILL
A Will is a document in which the testator declares his intention regarding the distribution and management of his estate after his death. Incase, if the person has not left the will after his death then he would be termed as intestate, this would result in the distribution of the property as per law of descent and distribution. A Will enables the person to select his/her heir without allowing the law of descent and distribution to choose the heir for him.
PURPOSE OF REGISTERING A WILL
Registration of a will is not mandatory in India; an unregistered will is not considered to be not genuine. A will is recorded in the registration acts as a proof that the proper parties have appeared before the registering officers and they have attested the same after ascertaining their identity. As per the guidelines of the Indian Succession Act, a will whether registered or not shall be believed to be validly executed. Registration of a document shall be done to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property. After the registration is done, the will is placed in the custody of the registrar where it cannot be tampered, destroyed or modified.
PRESENTATION OF WILLS AND AUTHORITIES TO ADOPT
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 Doner, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub-Registrar for registration.[1]
REGISTRATION OF WILLS AND AUTHORITIES TO ADOPT
A will or an authority to adopt, is presented for registration by the testator or donor, may be registered in the same manner as any other document. A will or authority to adopt is submitted for registration by any other person entitled to present it shall be recorded if the registering officer is satisfied that [3]
(a) The will or authority was executed by the testator or donor, as the case may be;
(b) The testator or donor is dead
(c) The person presenting the will or authority, under Section 40, is entitled to submit the same.
DEPOSIT OF A WILL
(1) Any testator may, either personally or by duly an authorised agent, may deposit with any Registrar his will in a sealed cover super scribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.
(2) The testator shall also endorse on the cover the name and address of the person to whom the original document shall be delivered after registration thereof, after his death.
Procedure on deposit of Wills: On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No. 5 and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover.
Proceedings on death of depositor: If on the death of a testator who has deposited a sealed cover under Section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant’s presence, open the cover, and, at the applicant’s expense, cause the contents thereof to be copied into his Book-3 [8] and then deliver the deposited will to the nominee of the testator or his representative.
Duties of registering officers when document presented:
(a) The day, hour and place of presentation and the signature of every person submitting a document for registration shall be endorsed on every such document at the time of filing.
(b) A receipt for such document shall be given by the registering officer to the person presenting the same.
(c) Subject to the provisions contained in Section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated, therefore according to the order of its admission.
Note: All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.
REGISTRATION FEES
Article I. FOR THE REGISTRATION OF DOCUMENTS:-
In Book I, the register of non-testamentary documents relating to immovable property:-
| (a) | For all optionally registered documents except leases. | Rs. 3.00
|
| (b) | For all compulsorily registered documents (other than leases of immovable property). | 1% of the value of the document, subject to a minimum of Rs. 3 and maximum of Rs. 1000. |
| If the value or consideration be only partly expressed (in addition to the ad valorem fee as above on the value or consideration money expressed) | Rs. 10.00 | |
| (c) | If the value or consideration is not at all declared, a fixed fee of Rs. 40.00
For lease of immovable property and surrender of leases |
At the rates given in clause (b) above on the amount of rent of which stamp duty has been assessed under article 35 of Schedule 1-A to the Indian Stamp Act, 1899, and if the lease is exempt from stamp duty four rupees. |
Note: Such fee in the case of duplicates, if presented with the original, shall be two rupees only Duplicates, if not presented along with the originals shall be treated like the originals.
Note: The registration fee to be paid on partition deeds shall be calculated on the value of share or shares on which stamp duty has been assessed under article 45 of Schedule 1-A to the Indian Stamp Act, 1899.
In Book No. 3, register of wills and authorities to adopt:-
| (i) | Authorities to adopt | Rs. 40.00 |
| (ii) | For the registration of Wills | |
| (a) | When the valuation of the property does not exceed Rs. 1,000 | 12.00 |
| (b) | When the valuation exceeds Rs. 1,000 | Ad-valorem fee prescribed in this Article shall be levied subject to a maximum of forty rupees. |
| When the value of the property is not expressed. | 50.00 | |
All non-testamentary instruments relating to Book IV including sale certificate, presented for registration in the original format.
| (i) | For the registration of an individual power of attorney | Rs. 5.00 |
| (ii) | For the registration of a general power of attorney. | Rs. 15.00
|
| (iii) | For the registration of an adoption deed. | Rs. 30.00 |
| (iv) | For the registration of any other document which cannot be brought under the ad-valorem scale prescribed by the preceding clauses of this Table i.e. which is incapable of valuation. | Rs. 10.00 |
| (v) | For the registration of a Trust deed | About Half of the amount of stamp duty is payable on the deed of this nature, subject to a minimum of three rupees. |
Under section 80 of the Registration Act, 1908, all the fees for the registration of documents, shall be payable on the presentation of such documents. The additional fee under this article is not payable on the registration of wills and authorities to adopt.
References:
[1] The Registration Act 1908, Part VIII, Section 40 [2] The Registration Act 1908, Part VIII, Section 41 [3] The Registration Act 1908, Part VIII, Section 40
