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Section 40: Persons entitled to present Wills and authorities to adopt

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Act 1908
Section 39 All 93 Sections of Registration Act Section 41

Legal Commentary & Landmark Judgments: Section 40

Section 40 regulates the persons entitled to present wills and authorities to adopt for registration, permitting presentation by the testator, donor, or posthumously by executors and beneficiaries.

  • Lifetime Presentation: 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.
  • Authorities to Adopt: The donor, or after his death the donee, or adoptive mother/father, may present an authority to adopt for registration.
  • Posthumous Right of Beneficiaries: Executors, legatee beneficiaries, and family members possess statutory standing to present the will post-death upon producing the death certificate.
Key Landmark Precedents:
  • Rani Purnima Debi v. Kumar Khagendra Narayan Deb, AIR 1962 SC 567: The Supreme Court noted that posthumous presentation of a will under Section 40 is common, but places a heavy burden on the propounder to prove due execution and testamentary capacity.
  • H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443: The Constitution Bench settled that registration of a will after the testator's death under Section 40 requires strict proof of the testator's sound mind and free volition.
Courtroom Practice & Strategic Litigation Guidance:

When presenting a will for registration after the testator's death, produce both attesting witnesses in person before the Sub-Registrar along with the original Municipal Death Certificate.

Section 39 All 93 Sections of Registration Act Section 41