DARA SINGH Vs. MEHAR SINGH

JUDGEMENT

(1.) HEARD learned counsel for the parties, These two writ petitions are raising common issue of law and, therefore, the same are being heard and decided together.

(2.) IN D. B. Civil Writ Petition No. 1554/1991 a suit was filed by respondent No. 1 to 3 and heirs of Chand Singh respondent No. 4 to 8 against the petitioners Dara Singh and INdar Singh for partition of agricultural property held by one Sundar Singh. Petitioners as well as respondent No. 1 to 3 and Chandan Singh were the sons of Sundar Singh. Sundar Singh is alleged to have executed a will in favour of the petitioners be- questing his entire agricultural land admeasuring about 48 Bighas in favour of the petitioners. The plaintiffs respondents have challenged the authority of Sundar Singh to execute Will and divert the ordinary rule of intestate succession. Ultimately, the Board of Revenue while affirming the order of the Revenue Appellate Authority has held that the property in question was self acquired property of Sundar Singh. Though under the ordinary law which Sundar Singh had full disposition power but on account of special provisions contained in Sec. 13 of the Rajasthan Colonization Act, as it stood at the time of the death of Sundar Singh, which prohibited transfer of property by Will also in the lands governed by or under the Colonization Act, the disposition power of Sundar Singh was inhibited.

(3.) IT is true that a Will is not an instrument of transfer in the ordinary sense as it is understood in the context of Transfer of Property Act, which governs all cases of transaction inter- vivos. A Will contains dictates of a person in whom his interest in property is to vest after his death. Thus, the instrument of Will takes effect not during the life-time of the executor of the Will but only after his death, provided always that it is the last Will of the testator. In a way it is devising by the holder of the property his own line of succession on his death by nominating the persons or the cause for whom the property shall devolve on his death. During his life time the testator continues to hold the property and it does not confer any right on the legatee. The holder of property has right to write a new Will at any time before his death. Such vesting of property is not governed by the Transfer of Property Act but is expressed by the term `devolution of property by transmission' and is governed by Indian Succession Act.