Sections 44 and 45: Withdrawal of a Deposited Will and Proceedings After the Testator's Death
Sections 44 and 45 of the Registration Act, 1908 prescribe how a testator may recover a will deposited in a sealed cover with the Registrar and how the Registrar deals with that cover following the testator's death. These provisions form part of the statutory system for the deposit and custody of wills under Sections 42 and 43.
Section 44 - Withdrawal of sealed cover deposited under Section 42
Under Section 44, a testator (the person who makes a will) who has deposited a sealed cover containing the will under Section 42 may apply to withdraw it. The application may be made personally or through a duly authorised agent to the Registrar holding the sealed cover.
The Registrar must be satisfied that the applicant is in fact the testator or the testator's authorised agent. Once that identity or authority is established, Section 44 directs the Registrar to deliver the cover accordingly. The provision concerns withdrawal by the living testator; it does not create an independent right for heirs to withdraw the sealed cover after death.
Practical steps for withdrawal
- Identify the Registrar's office where the will was deposited.
- Apply personally or through a duly authorised agent, supplying available deposit particulars and identification or authorisation documents as required by the applicable rules.
- Complete the Registrar's verification of identity or agency before receiving the sealed cover.
Section 45 - Proceedings on death of depositor
Section 45(1): Opening and copying the will
After the death of a testator who deposited a sealed cover under Section 42, an application may be made to the Registrar holding it to open the cover. If the Registrar is satisfied that the testator has died, the Registrar must open the cover in the applicant's presence and, at the applicant's expense, arrange for the contents to be copied into Book No. 3, the statutory register for wills and authorities to adopt.
Section 45(2): Re-deposit of the original will
After the copy has been made, the Registrar must re-deposit the original will. Opening the cover does not entitle the applicant to take possession of the original. The original remains in statutory custody under the procedure laid down by the Act.
Meaning and effect of the provisions
Sealed cover: the closed and sealed envelope containing the testator's will, lodged for safekeeping under Section 42. Registrar: the registration officer responsible for custody of the deposit. Book No. 3: the register designated under Section 51 for wills and authorities to adopt.
Depositing a will under Section 42 is distinct from registering a will under Sections 40 and 41. Neither deposit nor copying under Section 45, by itself, establishes the will's validity, due execution or testamentary capacity. Those questions may require proof under applicable succession and evidence law, and may arise in probate or other judicial proceedings.
How Sections 42 to 45 operate together
- Section 42: the testator or duly authorised agent may deposit the will in a sealed cover.
- Section 43: the Registrar records the prescribed details in Book No. 5 and retains the cover in a fire-proof box.
- Section 44: the testator may obtain withdrawal of the sealed cover during life after verification.
- Section 45: following death, the Registrar may open the cover on application, copy its contents into Book No. 3 and re-deposit the original.
Important: Administrative requirements, identification evidence, applicable fees and the handling of deposit records may be governed by relevant State registration rules and local procedures. The statutory provisions should be read with those rules.
Official legal resources
Consult the India Code repository for the Registration Act, 1908, and the Legislative Department, Government of India for central legislation. For practical deposit or withdrawal requirements, consult the concerned State Registration Department and its rules.