(HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN)

We are called upon to decide as to whether Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short `the Bombay Tenancy Act') debars an agriculturist from parting with his agricultural land to a non-agriculturist through a Will , so also, whether Section 43 (1) of the Tenancy Act restricts transfer of any land or interest purchased by the tenant under Section 17B, 32, 32F, 32I, 32O, 32U, 33(1) or 88E or sold to any person under Section 32P or 64 of the Tenancy Act through the execution of a Will by way of testamentary disposition.

Learned Single Judges of this Court have taken a consistent view that such transfer of property through testamentary disposition would not violate Section 43 or 63 of the Tenancy Act. Justice J.B.Mehta in the case of Manharlal Ratanlal @ Radmansinh Chausinh v. Taiyabali Jaji Mohmed & others (1967-68 (Vol.5) GLT 199) while interpreting Section 43(1) of the Tenancy Act took the view that the expression `transfer' which is used in Section 43(1) of the Tenancy Act must be interpreted in light of the Transfer of Property Act viz. the transfer by way of act of parties. Learned Judg