PRAMILA TIWARI Vs. ANIL KUMAR MISHRA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) When a will dtd. 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 20/8/2004, Sec. 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 dtd. 23/5/2022, the instant writ petition was filed by the petitioner saying that since the will dtd. 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 reported in (2015) 128 RD 507 and in Jahan Singh vs. State of U.P. reported in 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 Sec. 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 ?"