“Fence but Do Not Pre-Judge” – Karnataka High Court Validates Posthumous Registration of Wills and Restricts Merit Analysis at the Interim-Injunction Stage

1. Introduction

In Smt. M.D. Devamma (by LRs) v. Smt. K.V. Kalavathi & Ors., Miscellaneous First Appeals Nos. 3988, 4004 & 4118 of 2025, the Karnataka High Court (per Ramachandra D. Huddar, J.) confronted a familiar yet under-litigated procedural puzzle: can a court doubt the genuineness of a Will merely because it is registered after the testator’s death, and can such doubt form the sole basis for denying interim relief? The answer rendered is a categorical “No.”

The dispute arises out of a partition suit (O.S. No. 135/2021) between the alleged children of late K. Vishwanatha. The defendants (legal representatives of Devamma) relied on a registered Will dated 02.05.2018 – registered on 15.02.2019, seven months post-death – to claim exclusive title and sought an injunction to erect fencing. The plaintiff, claiming to be a daughter from a first wife, filed counter-applications seeking to restrain the defendants and herself erect fencing. The trial court refused the defendants’ application (I.A. 3) and allowed the plaintiff’s (I.A. 4 & 5) primarily because it viewed the Will as “dubious” for delayed registration.

2. Summary of the Judgment

• The High Court sets aside the common order dated 08.04.2025 of the Senior Civil Judge & JMFC, Sira.
• Holds that Sections 23 and 27 of the Registration Act, 1908 expressly exempt Wills from the four-month limitation for registration; posthumous registration is statutorily permissible.
• Rules that genuineness of a Will cannot be prejudged at the interlocutory stage; such issues must await trial.
• Allows I.A. 3 (defendant’s application) permitting fencing solely to prevent third-party encroachment; dismisses I.A. 4 & 5 (plaintiff’s applications).
• Orders both parties to maintain status quo regarding possession until final disposal and directs expeditious trial.

3. Analysis

3.1 Precedents & Statutory Provisions Cited / Relied Upon

• Registration Act, 1908 – Sections 18(e), 23, 24-27: Statutory framework making registration of Wills optional and permitting registration “at any time.”
• Indian Succession Act, 1925 – Section 63: Requirements for execution and attestation of Wills.
• Civil Procedure Code, 1908 – Order XXXIX Rules 1 & 2; Order XLIII Rule 1(r): Governing interim injunctions and appeals therefrom.
• Evidence Act, 1872 – Sections 68-71: Proof of Wills.
• Though not expressly quoted, the Court’s reasoning resonates with Supreme Court authorities on:
  • Thakur Sukhpal Singh v. Thakur Kalyan Singh, AIR 1963 SC 146 – scope of injunction between co-sharers.
  • Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 – presumption of genuineness of registered documents.
  • Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383 – when courts may examine fraud at interim stage.

3.2 Court’s Legal Reasoning

1. Misinterpretation of Section 23 by Trial Court: The phrase “no document other than a Will” excludes Wills from the four-month presentation rule. The trial court erred by applying this limitation to a Will.
2. Section 27 Proviso – “A Will may be presented at any time”: Underscored that registration post mortem is explicitly contemplated by the Act.
3. Optional, not mandatory, registration: Section 18(e) declares registration of Wills optional; thus delay, even decades, cannot ipso facto taint authenticity.
4. Wrong forum for genuineness enquiry: Authenticity of testamentary instruments must be adjudicated in trial after evidence and cross-examination (succession witnesses, attesting witnesses, etc.). Scanning date of registration at the interim stage amounts to prejudgment.
5. Injunction principles ignored: The trial court failed to properly assess:
   • Prima facie case – defendants produced a registered Will and revenue records.
   • Balance of convenience – fencing sought only to prevent encroachment.
   • Irreparable injury – denial would expose property to third-party intrusion.
6. Parity between co-sharers: Even assuming joint possession, an injunction favouring one co-sharer against another is exceptional. The trial court’s order upset equality by permitting only plaintiff to fence.

3.3 Likely Impact of the Decision

• Clarity on Posthumous Registration: Confirms within Karnataka that delay is immaterial; litigation tactics questioning Wills solely on timing are unlikely to succeed at interim stages.
• Guidance for Trial Courts: Re-emphasises that interlocutory orders cannot decide title or validity of testamentary documents; focuses on triad of injunction tests.
• Property Litigation Strategy: Litigants may confidently rely on registered but posthumous Wills for interim protection; conversely, challengers must marshal substantive evidence rather than procedural delay arguments.
• Saves Judicial Time: By channelling genuineness inquiries to trial, needless satellite litigation over interim findings is curtailed.
• Influence Beyond Wills: Principle extends to other optional documents (e.g., gifts of movable property) where registration timing cannot, by itself, prove mala fides.

4. Complex Concepts Simplified

• Will: A legal document expressing how a person’s property should be distributed after death.
• Posthumous Registration: Registering a document (here, a Will) after the person who executed it has died. Indian law allows this for Wills without time limits.
• Prima facie case: An initial showing of a right that, if not rebutted, supports the relief asked for.
• Balance of Convenience: Comparative hardship; the court weighs which party suffers more if the order is granted or refused.
• Irreparable Injury: Harm that cannot be adequately compensated by money. Required to get an interim injunction.
• Co-sharer/Joint Possession: Situation where two or more persons own undivided shares in the same property; none can claim exclusive possession & ordinarily cannot injunct another.

5. Conclusion

The High Court’s decision is a succinct reaffirmation of first principles. Statutory text matters: once Sections 23 and 27 are read together, controversy over delayed Will registration evaporates. More importantly, the ruling acts as a cautionary tale for trial courts to remain within the narrow confines of interlocutory jurisdiction and resist the temptation to decide substantive issues prematurely. By restoring equilibrium between parties and mandating an expedited trial, the Court both safeguards property during litigation and preserves the integrity of the final adjudicatory process. Practitioners should note that future challenges to Wills will need evidence, not calendar arithmetic.