BHURA Vs. SINGURI

JUDGEMENT

(1.) This is a revision against the order dated 31.7.57 passed by the Addl. Commissioner, Jodhpur, in second appeal. The facts of the case in brief are that on the death of one Lachhman, a Bapidar without leaving any male issue, the naib tehsildar of Nagaur ordered that the Khasra numbers 1734, 1849,201,202, 1156 and 1157 measuring 64 Bighas 13 Biswas may be mutated in the name of his two married daughters viz. Singhuri and Tikuri. The applicant who is deceaseds brother filed an appeal in the court of Addl. Collector, Nagaur who accepted the appeal and ordered that the land in the name of the deceased Lachhman may be mutated in his favour. Mst. Singhuri and Tikuri went in second appeal before the Addl. Commissioner who set aside the order of the first appellate court and ordered that the mutation of the land in dispute may be made in the name of the daughters Mst. Singhuri and Tikuri. The brother of the deceased, Bhura, has come in revision before us.

(2.) We have heard the learned counsel who have appeared on behalf of the parties. The point at issue in this case is whether the married daughters of the deceased can succeed their father on the strength of a will executed by the deceased in their favour or the succession can only be governed by the law in force at the time when the last holder died. The law in force at time was the Marwar Tenancy Act and according to sec. 14(1) on the death of a male tenant his interest in his holding devolved in order of Succession to his brother. Married daughters do not figure in the devolution table. The lower appellate court had accepted the appeal of Mst. Singhuri and Tikuri on the ground that the last holder was competent to make a will and thus could transfer his interest in favour of his married daughters. The learned counsel for the applicant has argued that a tenant under the Marwar Tenancy Act was not competent to transfer his rights by a will since his interests are not transferable otherwise than in accordance with the provisions of sec. 14 of the Marwar Tenancy Act. In sec. 14(1) it has been provided that on the death of a male tenant his interest in his holding shall devolve in accordance with the order of succession given under that sub -section. In this order of succession married daughters of a deceased male tenant have no place. Sec. 13 of the Marwar Tenancy Act provides that "the interest of a tenant is heritable but is not transferable otherwise than in accordance with the provisions of the Act". Since the devolution can only be in accordance with the order of succession given in sec. 14 of the M. T. Act there is no scope for transferring the rights through a will to any other person.

(3.) A referrence was also made in this connection to sec. 211 of the Marwar Land Revenue Act, sab -sec. (1) of sec. 211 of the Marwar Land Revenue Act lays down that a Bapidar may transfer his rights permanently. It has been argued on behalf of the opposite party that the term "transfer" is wide enough to include a will also. We find ourselves unable to subscribe to this view. We may refer to a decision of the Allahabad High Court reported in A.I.R. 1924 All. 508. In that case the question arose as to the interpretation of secs 20 and 22 of the U.P. Tenancy Act. Sec. 20 of that Act provides that the interests of the occupancy tenants shall not be transferable otherwise than by voluntary transfers between persons in favour of whom as co -sharers in the tenancy such rights originally arose. Sec. 13 of the Marwar Tenancy Act imposed some restriction on the transfer of interests by a tenant though the scope of restriction was to the effect that the transfer must be in accordance with the provisions of the Act. Sec. 22 of the U.P. Tenancy Act provided that the interests of occupancy tenant shall devolve in the manner laid down in that Act. Sac. 14 of the Marwar Tenancy Act lays down that when a male tenant dies his interest shall devolve in accordance with the order of succession given in the Act. On an interpretation of these provisions of the U.P. Tenancy Act his Lordship was pleased to hold that the word "transfer" must bear the same meaning as in sec. 5 of the T.P. Act, and be confined to a transfer within the meaning of that section. This would exclude an alienation by a will. As almost similar provisions are to be found in the Marwar Tenancy Act it would clearly follow that the word transfer" used in the Land Revenue Act would exclude a will from its operation and that the transfer has the same meaning as given to it in sec. 5 of the Act. A similar proposition was laid down in A.I.R. 1944 Oudh. 65. It was observed therein that the Transfer of Property Act does not relate to wills. That was a case under the Oudh Estates Act and it was pointed out that transfer was defined in that Act as an alienation inter vivos. It was further laid down that a willon the other hand is not in form of a transfer but means "A legal declaration of the intention of a testator which he desires to be carried into effect after his death." Thus to our mind the position deducible from the above is that Lachhman, the last recorded Bapidar tenant of the holding in dispute had no right to make a will of his tenancy rights in favour of his married daughters. The married daughters are not entitled to succeed to the tenancy rights of their deceased father in the present case for the obvious reasons that when the succession opened out the Marwar Tenancy Act was in force and it recognised only the right of unmarried daughters to succeed. The result is that the decision of the learned Addl. Commissioner, Jodhpur is clearly against law and untenable.