A testamentary succession does not take effect immediately and is not an immediate transfer and the beneficiary under the Will does not get any right during the lifetime of the testator.

PINAKI CHANDRA GHOSE, J. :-

This appeal is directed against an order dated 14th February, 2006 passed by the Hon'ble First Court whereby His Lordship was pleased to allow the writ petition and came to the conclusion that the expression "Transfer" used in the West Bengal Government Land Regulation of Transfer Act, 1993 (hereinafter referred to as the "said Act") read with the clause contained in the Deed of Lease is not intended to be used in the Wider connotation so as to include a testamentary succession. His Lordship further held that a testamentary succession does not take effect immediately and is not an immediate transfer and the beneficiary under the Will does not get any right during the lifetime of the testator. Accordingly, His Lordship came to the conclusion that Section 10 would apply in case where a person intends to transfer the land for pecuniary or other compelling reasons. A bequeath is not made under compelling circumstances. Therefore, on the said facts His Lordship held that the action on the part of the authorities is illegal and an impugned notice dated 20th September, 2005 was set aside.

2. The facts revealed that by a deed of lease in the early part of year 1982 the appellant authority introduced a Housing Scheme and under the said Housing Scheme lands were leased out for 999 years. The uncle of the writ petitioners, Subhas Chandra Banerjee, since deceased, applied for allotment of 5 cottahs under the said Housing Scheme on 4th October, 1982. In pursuance of the said application dated 4th October, 1982, the authority, respondent No. 1, appellant herein allotted a plot of 5 cottahs in his favour after due payment of entire land premium amount to Rs. 27,500/-.

3. The authorities executed a Deed of Lease dated 11th of July, 1986 in favour of one Subhas Chandra Banerjee and leased out a piece of land being Plot No. A/7/ABW under the said Scheme at City Centre, Durgapur.

4. Subhas Chandra Banerjee subsequently died on 25th June, 1992 leaving a registered Will dated 18th January, 1989 whereby the plot along with the structures thereon was bequeathed in favour of the writ petitioners equally and jointly. The probate of the said Will was granted in Probate Case No. 166 of 1993 by an order dated 22nd of March, 2000 by the Learned District Delegate at Durgapur.

5. After such probate the writ petitioners requested the authorities to mutate the property in favour of the writ petitioners. The authorities by a letter dated 7th September, 2000 informed the writ petitioners that the executors of the Will need to execute a deed of transfer of the plot in favour of the writ petitioners. According to the writ petitioners, a bequest made under a Will is not a 'transfer'. Therefore, the said authorities are bound to mutate the name in favour of the writ petitioners. Subsequently, the writ petitioners were asked by the respondent authorities to deposit a sum of Rs. 1,82,500/-as difference of land premium as on that date along with a sum of Rs. 5,000/- as transfer fee so far the mutation effected by a registered deed.

6. The writ petitioners raised an objection in respect of the said letter on the ground that a bequest made under a Will is not a 'transfer' as envisaged neither under the Non-company's Housing Scheme nor under the Deed of Lease and further it also cannot attract the provisions of the Transfer of Property Act, 1882.

7. It is also the case of the writ petitioners that under Clause VII of the said Deed of Lease, there is no bar to transfer the said plot. The said Clause is reproduced hereunder :

"(vii) The leasehold interest of the lessee can be assigned, mortgaged, or otherwise transferred with prior consent of the lessor, i.e. Asansol Durgapur Development Authority."

8. It further appears from Clause XII of the said Deed of Lease that the heirs shall have the right in respect of the said plot. The said Clause is reproduced hereunder :

"(xii) Should the lessee die after having made a bequest of the leasehold premi