Judgment

Rajendra Babu, J.-This appeal is directed against an order made by the High Court in a proceeding arising out of two suits filed under Section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ‘the Act’)-one suit for claim­ing damages amounting to Rs. 25000/- and another under Section 176 of the Act claiming 1/3rd share in the land in dispute.

2. The properties in dispute were held to be bhumidhari lands and pertained to one Arjun Singh, who had no male issue. Arjun Singh executed a Will which was registered on June 17, 1952. As per the said Will, after his death the land devolved upon his wife, Raj Kumari, and she held the said land till her death on April 1, 1968. The plaintiffs in the suit claiming to be the sister’s sons of Arjun Singh claimed that they should get 1/3rd share in the suit lands. The trial Court, after recording the evidence and hearing the parties, dismissed the suit filed under Section 176 of the Act. Against that order an appeal was preferred before the Additional Commissioner, Lucknow Division, who held that the Will did not include bhumidhari rights and after the death of Raj Kumari, the widow of Arjun Singh, who got the property in her own right as heir of Arjun Singh, the succession will not be governed by the Will but bythe provisions of Section 171 of the Act. Against that order of the Additional Commissioner the plaintiffs in the suit preferred two appeals to the Board of Revenue, U.P.. The Board of Revenue upheld the order of the Additional Commissioner and the appeals stood stood dismissed. Thereafter a writ petition was preferred in the High Court by the defendants in the suit. The High Court noticed that the plaintiffs’ allegations were that the plain­tiffs were sons of sister of Arjun Singh and became successors after the death of Raj Kumari, the widow of Arjun Singh, whereas the defendants contended that under the registered Will Arjun Singh vested all his movable and immovable properties in favour of his wife for her life time and after her death to his daughter, Smt. Bittaram for her life time and on their death the land had devolved upon them as khan­dani waris. As contended on behalf of the plaintiffs that the Will had been executed prior to the commencement of the Act and sir or khud kasht land is not transferable under Section 9 of the U.P. Tenancy Act and, therefore, the defendants got no ownership on the basis of the Will. The High Court concluded that the rights arising out under Section 9 of the U.P. Tenancy Act will not bar exchange and gift and that there can be no transfer of the land as the word ‘Will’ is ordinarily understood and, therefore, it could not be covered under the definition of the term ‘transfer’ and the Will was only a mode of devolution and did not amount to transfer. At the time his of death Arjun Singh was a bhumidhar of the lands in question and, therefore, under the Will all the movable and immovable properties that is ha­qiuat Zamindariand residential house, kachha and gonda kachha were disposed of with the entire property belonging to Arjun Singh and it ust be construed that it would include the property or right or bhumidhari in the land in question and, therefore, the High Court held that the Board had erred in confirming the order made by the Addition­al Commissioner and allowed the petition quashing the order made by the Board of Revenue. It is against that order this appeal has been filed by special leave.

3. The learned counsel or either side contended that the question for our consideration in this appeal is the interpretation to be placed upon the Will executed by Arjun Singh and whether under the said Will the bhumidhari rights have been disposed of in terms of Section 169 of the Act and, if that is so, the appellants or the respondents consti­tute the waris khandan of the said Arjun Singh.

4. Decisions of this Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allaha­bad1; Shri Ram Praka