Tenancy rights other than permanent tenancy rights cannot be willed away under the Provisions of the Bombay Tenancy and Agricultural Lands Act, and the Provisions of Section 57 and clause (1), schedule iii of the Indian Succession Act are also attracted to such a case, because there is a bar for transfer of tenancy or bequeathing the tenancy right under a will.

( 1 ) THIS second appeal is preferred against the judgment and decree dated 9-12-1976 passed in r. a. No. 279/1972 by the principal civil judge, chikodi, confirming the judgment and decree dated 11-9-1968 passed by the munsiff, chikodi, in O. S. No. 59/1965.

( 2 ) THE appellants are the defendants. The respondents are the plaintiffs.

( 3 ) THE respondents filed the aforesaid suit for a declaration that they have become the owners of the schedules a and b properties and have also come to possess leasehold right in c schedule properties and further they have come to possess the same right which the deceased testator dadu babaji berad alias naik (hereinafter referred to as 'dadu') enjoyed in d schedule properties.

( 4 ) ALL the properties are the agricultural lands. It is not in dispute in this case that agricultural lands comprised in schedules a and b were owned by the testator dadu. It is also not in dispute that dadu was in possession of lands described in schedule c as protected tenant under the Provisions of Bombay Tenancy and Agricultural Lands Act, 1949 (hereinafter referred to as the b. t. and a. l. act), as far as the properties described in schedule d are concerned it is the case of the plaintiffs that dadu was in possession of those properties as a protected tenant; but, subsequenll y he entered into an agreement of sale with the landlords and as such he was in possession of those lands as intending purchaser, therefore the plaintiffs claimed that they were entitled to the same right as dadu had left a will in their favour. The case of the plaintiffs was that dadu executed a-registered will dated 28-9-1964 and he died on 12-12-1964, under the will which is marked as ex. P-98, dadu bequeathed all the lights he had in the suit properties described in schedules a, b, c and d. The plaintiffs had also prayed for permanent injunction against the defendants.

( 5 ) THE defendants contested the suit and inter alia contended that dadu did not execute the will; that even otherwise it was not open to him to transfer the lands described in schedules a to d during his life time, therefore, he could not bequeath those properties having regard to the Provisions contained in Section 27 of the b. t. and a. l. act and Section 7 of the Bombay prevention of fragmentation and consolidation of holdings act (hereinafter referred to as the Bombay fragmentation act) and also Section 57 read with schedule iii of the Indian Succession Act.

( 6 ) THE courts-below have held that due execution of the will is proved. The finding recorded by the courls-below regarding due execution of the will is supported by the evidence on record and we are of the view that the said finding docs not suffer from any illegality so as to call for interference in a second appeal under Section 100 of the CPC. The courts-below have also further held that Section 57 of schedule iii of the Indian Succession Act have stood modified by reason of Section 30 of the hindu succession Act, 1956 and as such there was no bar for dadu to bequeath the tenancy rights; that the will did not amount to a transfer therefore (the bar contained in Section 7 of the Bombay fragmentation act was not attracted. As such the will in so far it related to the fragments was not void. Accordingly, the trial court decreed the suit and the lower court affirmed it.

( 7 ) THE second appeal is referred to a division bench on the ground that it involves a question as to whether a tenant governed by the b. t. and a. l. act could execute a will in respect of the tenancy right in the presence of a bar contained in Section 27 of the b. t. and a. l. Act, for transferring the tenancy right.

( 8 ) AS the second appeal is referred to a division bench the other questionsinvolved in the appeal are also required to be gone into.

( 9 ) SRI shaslry, learned counsel appearing for the appellants has advanced the following contentions; that Section 27 of the b. t. and a. l. act prohibited transfer of tenan