A Will is not a transfer as envisaged under the provisions of Clauses 2 (7) and 2 (8) of the lease deed and the Transfer of Property Act, 1882. A Will operates only on the death of the testator and is not an alienation inter vivos.

( 1 ) THE short point involved in this Civil Order is, whether the State Government could refuse to mutat the name of the writ petitioners who were the legatees under the Will executed by the original lessee Shri Anil Kumar Bhattacharjee in respect of a plot of land in the Bidhannagar, Salt Lake City, and which was duly probated.

( 2 ) IN short, the facts of this case as stated in the writ application, inter alia, are that one Shri Anil kumar Bhattacharjee, since deceased, was granted a lease in respect of Plot No. 147, measuring about 5. 4344 Kathas, in Block-EC, in Sector-I of Bidhannagar, Salt Lake City for 999 years by the Government of West Bengal. The lease was duly accepted and registered on 6th of March, 1986 and the lessee duly got possession of the above lease hold property and was all long in possession and occupation thereof. The said leasee knew the writ petitioners from their childhood who were like his family members. The writ petitioners used to respect the said lessee like their own father who also used to love them like his own daughters. The said lessee on or about 27th July, 1992 executed a Will and Testament wherein he made a bequest of the said lease-hold premises in favour of the writ petitioners and thereafter the said lessee died on 4th October, 1992. The executor to the said Will obtained probate of the said Will in probate Case No. 21 of 1993 from this Hon'ble Court and the natural legal heirs of the deceased, namely, his widow and his son, duly gave their consent to the grant of probate of the said Will.

( 3 ) AFTER grant of probate, the writ petitioners obtained possession of the demised premises from the Executor to the above Will, and since then, they are in peaceful possession thereof. After the grant of probate, the Executor of the said Will made an application on or about 15th March, 1993 before the respondent No. 2 for mutation of the said lease-hold premises in the name of the writ petitioners annexing therewith a copy of the order granting probate to the said Will.

( 4 ) INSPITE of repeated reminders, however, no action was taken by the respondents to mutate the said premises in the name of the writ petitioners as lessees in place and stead of the deceased Anil Kumar Bhattacharjee and as such, finding no other alternative, the writ petitioners on or about 29th September, 1993 filed a writ petition, inter alia, praying for an issuance of writ of Mandamus commanding the respondent/authorities to mutate the name of writ petitioners as Joint Lessees in respect of the aforesaid lease-hold premises in place of the deceased lessee Anil Kumar Bhattacharjee by virtue of the probate granted as aforesaid. The said writ application was disposed of by me on 27th June, 1995 directing the respondent/authorities to dispose of the aforesaid application for mutation within a period of 12 weeks from the date of communication of the order and an interim order of status-quo in respect of the said property was also passed, till the disposal of the application for mutation. The said order was duly communicated by the writ petitioner to the respondent No. 2. The writ petitioners were then asked to appear before the authority concerned to represent their case which they did. Ultimately, on 29th September, 1995 the respondent authority rejected the said application for mutation made by the writ petitioners for mutating their names in place and stead of the deceased lessee Anil Kumar Bhattacharjee in respect of the said premises holding, inter alia, as follows :"in the present case which is lease hold property there are several restrictions in transferring any right of title in Clause 2 (8) and 2 (12 ), though there is also a provision of Clause 2 (12) for making will of the lease property. In my view the Clause 2 of the lease deed forms are single scheme of operation of the terms of lease and as such Clause 2 (12) is subordinate to Clause 2 (8) and Clause 2 (7) of the lease deed as they should be