Devolution by Will does not amount to a transfer of property, as clarified by the interpretation of Section 57 of the Bombay Tenancy and Agricultural Land (Vidarbha Region) Act, 1958.

Heard Shri J. J. Chandurkar the learned counsel for the appellant. Nobody appearing for the respondent.

2. By the present appeal, the legal representatives of original plaintiff Rajendra are challenging the judgment and decree passed by learned Jt. Civil Judge Senior Division Amravati dated 7-8-1987 in Special Civil Suit No. 74/1984 and judgment and decree passed by learned 2nd Additional District Judge Amravati dated 20-8-2003 in Regular Civil Appeal No. 213/2000, by which both the Courts below dismissed the suit for declaration and permanent injunction.

3. The present appeal was admitted on 25-3-2004 on following substantial question of law :

“Whether the tenant is entitled to transfer the tenanted property by Will?”

4. For answering the aforesaid substantial question of law it would be useful to refer the facts which gives rise to the present appeal. Rajendra Konde filed a suit for declaration and permanent injunction. One Natthuji was having one brother by named Rajaram. Natthuji was having three sons Deorao, Gulabrao and Sahebrao. Plaintiff Rajendra is son of Deorao. Gulabrao was issueless. Sahebrao’s son was Balasaheb. In the branch of Rajaram, Kisanrao was son of Rajaram. His son is Sahebrao defendant No. 1. Gulabrao by registered adoption deed (Exh. 50) adopted Sahebrao. Defendant No. 2 is Subhadrabai wd/o Gulabrao. Partition was effected in between Gulabrao, his wife Subhadrabai and son Shamrao in respect of the agricultural properties. The said partition was duly registered in accordance with the law on 16-5-1978 (Exh.60). By virtue of the said registered partition deed, field Survey No. 239 situated at mouza Shirala of district Amravati, admeasuring 4 H. 53 R was allotted to the share of Gulabrao. The other agricultural properties were fallen to the share of Subhadrabai and Shamrao. This appeal concerns only with field Survey No. 239 of mouza Shirala.

5. During his life time Gulabrao executed a Will. It is dated 29-7-1980. The said Will is also duly registered. The Will is at Exh. 54 on the record.

6. By this Will, Gulabrao bequeathed field Survey No. 239 at mouza Shirala which was fallen to his share in partition dated 16-5-1978 to Rajendra his nephew, the plaintiff. The plaintiff was cultivating the land along with Gulabrao, even during his life time. The crops statements were also showing the possession of plaintiff Rajendra.

7. The cause for filing the suit for declaration and injunction was a registered notice (Exh.62) dated 29-5-1984 issued on behalf of defendant No. 1 Shamrao to Rajendra, making allegations that taking the disadvantage of bad health of Gulabrao, plaintiff Rajendra is brought into existence as fabricated Will and on the basis of which he is claiming ownership over certain properties. Thus, by filing the suit, plaintiff Rajendra sought declaration that he became owner of suit field Survey No. 239 by virtue of Will executed in his favour on 29-7-1980 by Gulabrao. He also claimed permanent injunction to the effect that the defendants or any person claiming through them shall not disturb the peaceful possession and enjoyment of the suit field. The suit was registered as Special Civil Suit No. 74/84.

8. On being summoned both the defendants filed their separate written statement. The execution of Will was denied by them. According to them, the Will is sham, bogus and fraudulently obtained document by the plaintiff. In addition to the said, it was the defendant’s case that suit field belongs to Harihar Maharaj Deosthan of Talegaon Thakur and Gulabrao was the tenant of the said agricultural field and therefore the said field can not be transferred or disposed of. It was also the case of the defendants that the partition deed was a nominal document and it was brought into existence only to save the joint family property from the operation of Ceiling Act, therefore, the property is joint family