Sections 46 and 47 of the Registration Act, 1908: Court Powers and When Registration Takes Effect

Part IX: Of the deposit of wills

Section 46: Saving of certain enactments and powers of courts

Section 46 concerns wills deposited with a Registrar in sealed covers under Sections 42 and 43. It makes clear that the statutory deposit procedure does not displace the relevant succession and probate provisions referred to in the section or a court's authority to order production of a will.

Section 46(1): Preservation of the court's power

Nothing hereinbefore contained shall affect the provisions of section 259 of the Indian Succession Act, 1865, or of section 81 of the Probate and Administration Act, 1881, or the power of any Court by order to compel the production of any will.

The references to the Indian Succession Act, 1865 and the Probate and Administration Act, 1881 are historical statutory references retained in the text. Both enactments were repealed and consolidated through later succession legislation, notably the Indian Succession Act, 1925. For current probate proceedings, the applicable law and court procedure must be checked independently; the essential saving of judicial authority remains important.

Section 46(2): Procedure when the court orders production

When any such order is made, the Registrar shall, unless the will has been already copied under section 45, open the cover and cause the will to be copied into his Book No. 3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid.

Thus, if the will has not already been copied following the depositor's death under Section 45, the Registrar opens the cover, enters the will in Book No. 3 and records the fact that the original was produced before the court. Section 46 does not itself determine the will's validity or confer probate.

Part X: Of the effects of registration and non-registration

Section 47: Time from which registered document operates

A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

Section 47 addresses the commencement of operation of a document once it is registered. Registration on a later date does not automatically mean the instrument first takes effect on that registration date. The instrument ordinarily operates from the time at which it would legally have operated had registration not been required, subject to its terms and the applicable substantive law.

Section 47 does not mean that every document necessarily operates from its execution date, nor does it cure an invalid instrument or dispense with compulsory registration. In particular, the effective date and the priority of competing rights are distinct questions. The nature of the transaction, conditions in the deed, applicable property law and rights of third parties may matter.

Practical application of Sections 46 and 47

When a deposited will is needed in court

Where a will is deposited in a sealed cover and a court orders its production, the Registrar must follow Section 46(2). The procedure preserves an official copy and a record of removal of the original into court.

When a deed is executed before registration

Suppose a deed is executed on 5 January and registered on 20 January. If its terms and governing law make it operative on 5 January, Section 47 generally recognises that commencement after valid registration. But if the deed specifies a later commencement or contains conditions, its operation must be assessed accordingly.

Related provisions

Section 48 addresses the effect of registered property documents against oral agreements; Section 49 sets out consequences of non-registration where registration is required; and Section 50 addresses priority in specified circumstances. These rules should be read together with Section 47.

Official legal resources

Consult the India Code official legislative database for the Registration Act, 1908 and the Indian Succession Act, 1925, including amendments and applicable state variations. Local registration rules and state amendments may affect the procedure in a particular jurisdiction.