B.P.JHA, J.

1. By virtue of an order dated 21st July, 1978 a learned single Judge referred this civil revision petition to a Division Bench for deciding the correctness of the judgement of H.L. Agrawal, J, in Smt. Dil Kuer V/s. Hari Chandar Prasad, AIR 1976 Pat 193. H.L. Agrawal, J. is of the opinion that the court shall grant probate or letters of administration provided the will is registered in view of S.16(2)(iii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) (hereinafter to be referred to as the Act), H.L. Agrawal, J. is further of the opinion that the provisions of Art.254(2) of the Constitution shall apply to the present case.

2. I respectfully disagree with the opinion of H.L. Agrawal, J. for the reasons mentioned below.

3. It is relevant to quote Art.254(2) of the Constitution which runs as follows :-

"254(2). Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State".

If the Legislature of a State has enacted any law in respect of the matters enumerated in the concurrent list then, in that case, the law made by the Legislature of State shall prevail in the State provided it has been reserved for consideration of the President and has received his assent. In the present case, the Act was reserved for the consideration of the President and it received the assent of the President.

4. The only question for consideration is : whether the Act falls within one of the matters enumerated in the concurrent list or not ?

5. In my opinion, the answer must be given in negative. The present Act falls within Item 18 of List II (State List). Item 18 of List II is as follows :

"18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization."

In my view, the present Act does not fall within any of the matters enumerated in List III (concurrent list) and hence the provisions of Art.254(2) of the Constitution do not apply to the present Act. If it is so, then the provisions in the Act shall not prevail upon the provisions of the Indian Succession Act, 1925 (Central Act XXXIX of 1925) (hereinafter referred to as the Central Act) which was enacted by the Central Government. Wills, intestacy and succession fall within item 5 of the concurrent list. The impugned Act is not covered by item 6 of the concurrent list. In the present case there is no conflict between the matters enumerated in concurrent list. In the present case the Act occupies the field as enumerated in List II and the "wills" occupy the field as enumerated in item 5 of List III. In this circumstance, I hold that the question of repugnancy also does not arise.

6. A person applies for grant of probate or letters of administration under S.273 of the Central Act. A complete machinery has been set up for grant of probate or letters of administration under the provisions of the Central Act. If it is so, the court granting or refusing the probate or letters of administration shall be governed by the provisions of the Central Act and not by the provisions of the impugned Act. If it is so, the court granting the probate or letters of administration cannot refuse to grant the same simply because the will is not registered in accordance with Section 16(2)(iii) of the Act. It is relevant to quote S.16(2)(iii) of the Act which runs as follows :

"16(2)(iii). No land shall be transferred, exchanged, leased, mortgaged, bequeathed or gifted without a document registered in accor