Research proposition: legal effect of a registered will vis a vis an unregistered will

HIGH COURT CASES

 Both registered will and unregistered will has to be proved by at least two witnesses present
at the time of making it.
 Once a Will is registered, it is placed in the safe custody of the Registrar and therefore
cannot be tampered with, destroyed, mutilated or stolen – strong legal reliability
 Punjab Kaur v Mohinder Singh (PHC) – will being registered or unregistered does not make a
difference – a registered will, and subsequently an unregistered will, prevails over the registered
will if properly proved
 Madhwi Sharma Ahluwalia vs State – DHC - 2010
o It is true that there is no difference between a registered will and an unregistered will so
far as their genuineness and authenticity are concerned but it is equally true that a
registered will stands on a better footing than an unregistered will inasmuch
as about a registered will it is taken that it was the act of a testator of a sound
disposing mind. About an unregistered will, it is not taken that it was the act of a
testator of sound disposing mind. [in this case, the testator was considered to not be –
therefore doubt arose]
o The burden of proving that the will was validly executed and is genuine is on the
propounder of the will – he is required to prove that the testator has signed the will
and had put his signature out of his own free will + prove sound disposition of mind
an was in position to understand the nature and effect of his action = only then the
ONUS IS DISCHARGED –
o Another requirement of law is that if there are suspicious circumstances surrounding
the execution of a Will, the onus is on the propounder to explain those circumstances
to the satisfaction of the Court, before the Will is accepted as a genuine document.
 Rajinder Kumar Sharma And Another vs Lokender Kumar Sharma (PHC - 2019)
o though registration of a Will gives rise to presumption of due execution but then a
registered Will is certainly not having an edge over the unregistered Will and as per
law both stand on the equal
 Dharam Chand v. Mansa Devi, 2010 SCC OnLine HP 1743
o At the very outset I would like to say whether the Will is registered or unregistered, it
would have the same value, but it is imperative on its propounder to prove it like a crucial
case beyond doubt in accordance with law and repel all the suspicious circumstances.

SUPREME COURT CASES

 Mahesh Kumar (Dead) By L.Rs. Vs. Vinod Kumar and Ors. (2004) – SC
o case in which subsequent unregistered will prevailed over registered will – court
mentioned circumstances in which the subsequent unregistered will can be rejected.
o Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory
and sufficient to prove the sound and disposing state of the testator's mind and his
signature as required by law, courts would be justified in making a finding in favour of
 the propounder. In other words, the onus on the propounder can be taken to be
discharged on proof of the essential facts just indicated.
o There may, however, be cases in which the execution of the will may be surrounded
by suspicious circumstances. The alleged signature of the testator may be very shaky
and doubtful and evidence in support of the propounder's case that the signature, in
question is the signature of the testator may not remove the doubt created by the
appearance of the signature; the condition of the testator's mind may appear to be
very feeble and debilitated; and evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the testator; the dispositions made in the
will may appear to be unnatural, improbable or unfair in the light of relevant
circumstances; or, the will may otherwise indicate that the said dispositions may not be
the result of the testator's free will and mind. In such cases the court would naturally
expect that all legitimate suspicions should be completely removed before the
document is accepted as the last will of the testator [referring to subsequent
unregistered will]. The presence of such suspicious circumstances naturally tends to
make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would
be reluctant to treat the document as the last will of the testator.
o Apart from the suspicious circumstances to which we have just referred, in some cases
the wills propounded disclose another infirmity. Propounders themselves take a
prominent part in the execution of the wills which confer on them substantial benefits. If
it is shown that the propounder has taken a prominent part in the execution of the
will and has received substantial benefit under it, that itself is generally treated as a
suspicious circumstance attending the execution of the will and the propounder is
required to remove the said suspicion by clear and satisfactory evidence.
o It is in connection with wills that present such suspicious circumstances that decisions of
English courts often mention the test of the satisfaction of judicial conscience. - in
determining the question as to whether an instrument produced before the court is
the last will of the testator, the court is deciding a solemn question and it must be
fully satisfied that it had been validly executed by the testator who is no longer alive.