The transfer of land by way of a Will does not amount to a transfer of the property, as it is a mode of devolution and not a transfer.

ORDER :

This appeal is directed against judgment and order dated 02.05.2003 passed by learned Single Judge of the Bombay High Court in Second Appeal No. 381 of 1990.

2. The appellant (since deceased) had filed a suit for declaration of his ownership and possession of the suit property which consisted of suit fields and a house as well as for mesne profits.

3. The trial court partly decreed the suit and directed delivery of vacant possession of the house to the appellant. We are not concerned in this appeal with regard to the house.

4. The trial court rejected the claim of the appellant with regard to the suit fields as mentioned in Schedule 'A' of the plaint. The decision of the trial court was challenged by the appellant but the Additional District Judge dismissed the appeal filed by the appellant.

5. Subsequently, the appellant preferred a second appeal which also came to be dismissed by the High Court by the impugned judgment and order. It may be mentioned that the deemed owner of the suit fields had left behind a Will dated 15.01.1966 with the appellant as the beneficiary. It is on this basis that the appellant claimed possession and ownership of the suit fields.

6. The High Court took the view that the provisions of Section 57 of Bombay Tenancy and Agricultural Lands Act, 1958 pertaining to Vidarbha Region do not permit the transfer of land by way of a Will. Section 57 of the Act which is relevant reads as follows :

Section 57(1) No land purchased by a tenant under section 41 or 56 (or 49A (570) or 130 or sold to any person under section 91 or 122 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government.

(2) Any transfer of land in contravention of sub-section(1) shall be invalid:

Provided that nothing in this section shall apply to the lands purchased by an occupancy tenant.

7. On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissible by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition in so far as the transfer of land by way of a Will is concerned. In fact, in view of the decision of this Court in State of West Bengal & Anr. v. Kailash Chandra Kapur & Ors. [(1997) 2 SCC 387], devolution of property by way of a Will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a Will takes effect after demise of the testator and transfer in that perspective becomes incongruous.

8. That the beneficiary of a Will receives the property by way of devolution and not by way of transfer is also made clear by the decision of this Court in S. Rathinam alias Kuppamuthu & Ors. v. L.S. Mariappan & Ors. [(2007) 6 SCC 724] wherein this Court has held in para 21 that a testator by his Will, may make any disposition of his property subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. The Will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution. In coming to this conclusion, this Court referred to Beru Ram and Others v. Shankar Dass and Others [AIR 1999 J&K 55].

9. The decision of the High Court is, therefore, not sustainable in view of the law laid down by this Court

10. The High Court had also taken the view that the suit fields could not be transferred since the right of the deemed owner was a personal right and therefore it was not transferable. Learned counsel for the respondent was unable to show the basis of this conclusion of the High Court. That being the position, we are not in agreement with the view taken by the Hig