LAXMI BAI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THE petitioner, by this petition under Articles 226 and 227 of the Constitution of India, impugns the order dated 16-5-2005 (Annexure P-12), passed by the Board of Revenue, Chhattisgarh, Bilaspur, Circuit Court, Raipur in Revenue Case No. 5/A-21/2004-05. THE facts, in nutshell, as projected by the petitioner, are that the petitioner (Smt. Laxmi Bai) is widow of Barjo Gond. According to the report of the Sub Divisional Officer (Revenue), Saraipali, dated 5-1-2004, Reju had two sons, i.e., Govind and Dayaram. Govind had one son Barjo Gond. Dayaram had three sons, namely Chamra, Chamroo and Karoo. Barjo Gond died issueless. THE three sons of Dayaram, namely Chamra, Chamroo and Karoo are dead. Balakram (respondent No. 4) is the son of Chamra, Parasram (respondent No. 3) is the son of Chamroo and Tulsiram (respondent No. 5) is the son of Karoo. By way of succession, the petitioner is owner of 7.60 hectare land (30 khasra numbers), situated at Village Bhalukona, Tehsil Saraipali, District Mahasamund. Since the petitioner is a widow and issueless, she kept Surendra Narayan Das with her as her son, who is looking after the affairs of the petitioner in her old age. Looking to her old age, with an intention to settle her properties in her life time itself, on 26-7-2001 (Annexure P-1) the petitioner moved an application under Section 165 of the Chhattisgarh Land Revenue Code, 1959 (for short 'Land Revenue Code') before the Collector, Mahasamund, seeking permission to execute a 'Will' in favour of Surendra Narayan Das in regard to the above stated property. THE case was registered as Revenue Case No. 65/A-21/2004-05. By order dated 28-1-2002 the matter was referred to the Tehsildar, Saraipali for enquiry and report after affording opportunity of hearing to objectors, if any. THE respondent Nos. 3 to 5 filed their objection (Annexure P-4), claiming themselves as legal heirs of the petitioner. THE Tehsildar also obtained opinion of the Gram Panchayat, Rajadih. Accordingly, a meeting of Gram Panchayat was held and the resolution dated 10-10-2002 (Annexure P-5) was passed. After having enquired from all angles, the Tehsildar, Saraipali submitted his report on 24-3-2002 (Annexure P-9) to the Sub Divisional Officer (Revenue), Saraipali. THE Sub Divisional Officer (Revenue) by order dated 2-8-2004 (Annexure P-10) submitted the report to the Collector, Mahasamund.

(2.) (h) "Will" means 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. Thus, a 'Will' can be carried into effect after death of the testator only. At this stage, there is no involvement of the transfer of the interest when the testator is still alive. The Supreme Court in State of W.B. and Anr. v. Kailash Chandra Kapur and Ors. : (1997) 2 SCC 387, defines the difference between 'transfer' and 'Will', and observed that "Transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. A Division Bench of the Karnataka High Court in N. Ramaiah v. Nagaraj S. : AIR 2001 Karnataka 395, observed as under: