Registration of wills in Delhi
The Hindustan Times
Bequeathing property to loved ones? Make sure you have covered all the bases
As per a recent Circular released by the Government of Delhi, state officials have been directed to ensure that a beneficiary under an unregistered will, now, mandatorily obtain and submit a succession certificate/probate order of such unregistered will from a competent civil court.
The circular has also effected amendments of Section 147, read with Section 128, of the Delhi Municipal Corporation Act, 1957 (`DMCA') to that extent. The DMCA, among other things, provides the procedure to be followed whenever the title of any person (who is primarily liable for payment of property taxes on any land or building) is transferred.
In Delhi, a transfer of property is required to be notified to the Municipal Corporation of Delhi (MCD) by the transferor and transferee. Section 128 of the DMCA lays down rules regarding giving notice of transfer of immoveable property. The transferor and transferee are required to notify the MCD in writing about such transfer within three months of (a) execution of instrument of transfer; or (b) registration of instrument of transfer; or (c) transfer being effected, if no instrument of transfer has been executed. Failing to notify the MCD about transfer of property in one's favour, in writing and in accordance with the law, attracts payment of penalty as per the DMCA.
Section 147 of the DMCA pertains to quantum of duties (and its method of assessment) to be levied on transfer of an immovable property situated within the limits of Delhi.
Transfer of title in immovable property can take place through numerous modes such as by way of sale, gift and will, to name a few. To better understand transfer of title by way of wills, it is important to know the definition of a will recognised by law. In India, the distribution and inheritance of a person's property is governed by the Indian Succession Act, 1925 (`ISA'). The ISA defines a will as the “legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death“. In other words, it is a legal instrument specifying the method to be applied in the management and distribution of a person's estate after his death.
There are certain legal instruments specified in the Registration Act, 1908, which require compulsory registration with competent authorities. Registering instruments that require compulsory registration as per this Act qualifies them as being valid instruments that are admissible in evidence in courts.
Wills do not require compulsory registration per se under the Registration Act, 1908. Thus, even an unregistered will that has been properly executed is a valid instrument in the eyes of law.
Upon death of the testator, a property is transferred/ devolves in favour of his/her beneficiaries as per the terms of the will.
The DMCA stipulates that in the event of the death of a person who is primarily liable for payment of property taxes as mentioned above, the beneficiary on whom a property devolves, is required to notify the MCD about such devolution within a period of six months from the death. When giving such written notification, the beneficiary is required to produce documents proving devolution of the property in his favour. As evidence, a beneficiary can furnish the will either registered or unregistered as evidence of a lawful transfer of the property in his favour.
However, with the release of this circular, a beneficiary under an unregistered Will is now required to obtain and submit a succession certificate/probate order to the MCD, in order to get the property mutated in his favour as well as for updating property records. On the other hand, a beneficiary furnishing a registered will is not required to additionally provide a succession certificate/ probate order. A `Probate Order' by a court of competent jurisdiction refers to the copy of a will certifying such will to be authentic and with a grant of administration to the testator's estate.
To safeguard oneself from disputes that may arise with respect to inheritance of property, probate/succession certificate must be obtained in case tghe will has not been registered. This shall protect the beneficiaries' interests as well as ensure that distribution of property takes place in accordance with the testator's intentions. This simple step can go a long way in minimising disputes regarding transfer of property and payment of property taxes.
The author is senior partner, ZEUS Law Associates, a corporate commercial law firm. One of its areas of specialisation is real estate transactional and litigation work.