S.J. Mukhopadhaya, C.J.

In both the cases, as similar issue is involved, they were heard together and are being disposed of by this common judgment.

2. The brief facts of the cases are as follows:

According to Appellant of Letters Patent Appeal No. 1522 of 2010, the 1st Appellant is an agriculturist, holds agricultural land bearing Block No. 1900 admeasuring 3642 sqm. and Block No. 1958 admeasuring 1040 sqm. of village Degam, Taluka Chikhali, District Navsari. One Manilal Hirabhai Patel executed a will on 16.10.2003 in respect of land admeasuring 6372 sqm. of Block No. 1985 of village Degam, Taluka Chikhali, District Navsari, registered in the office of Sub-Registrar, Chikhali, at Sr. No. 910 of Book No. 3. Said Manilal Hirabhai Patel died on 10.11.2004. Appellants Nos. 2 to 5 are the sons of said deceased Manilal Hirabhai Patel. 1st Appellant being the legatee for the land bearing Block No. 1985, made an application on 21.04.2005 u/s 135(3) of the Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the Code' for short) to the village Talati, Degam, to enter his name in the revenue record on the basis of the registered will. It was entered in the revenue record by Mutation Entry No. 10459 dated 01.09.2005, but subsequently, notices u/s 135D of the Code were issued on all the persons, including Appellants nos. 2 to 4, but no objection was made. Later on, the Mamlatdar, Chikhali, refused to sanction and cancelled the Mutation Entry by order dated 11.05.2006 on the ground that the land is of restricted tenure u/s 73AA of the Code, as the 1st Appellant belong to a different caste. It is alleged that the Mamlatdar, Chikhali, did not follow the provisions of Rule 107 of Gujarat Land Revenue Rules, 1972 (hereinafter referred to as 'the Rules' for short), before cancelling the Mutation Entry.

3. The 1st Appellant, thereafter, preferred R.T.S. Appeal No. 46 of 2006 before the 3rd respondent, which was rejected on 12.03.2007, against which, he moved a R.T.S. Revision Application No. 17/2007 before the 2nd respondent, who by order dated 31.12.2007, set aside the matter, and remanded it back to the 3rd respondent, who registered the case as R.T.S. Remand Case No. 18/2008, and after hearing, rejected the same by order dated 31.03.2008. The said respondent refused to believe the registered will, Manilal Hirabhai Patel being a Schedule Tribe person, having four sons and a daughter as lineal descendants. Thereafter, R.T.S. Remand Case No. 18/2008 was also rejected on 15.12.2008. Thereafter, a Revision Application No. RTS/NVS/3/2009 was preferred by the 1st Appellant before the 1st respondent-State under Rule 108(6)(A) of the Rules, which was also rejected on 11/18.09.2009. The said order having been affirmed by the learned Single Judge, present appeal has been preferred.

4. The authorities rejected the application, as u/s 73AA of the Code, there is a restriction on 'transfer of occupancies' of tribals to tribals or non-tribals. Having noticed that the land belonged to a tribal who sought to have transferred, its occupancy, by executing a will to the 1st Appellant, a non-tribal, inspite of having the lineal descendants, i.e. four sons and a daughter, the authorities doubted the execution of the will and refused to mutate the land in favour of the 1st Appellant.

5. Learned Counsel for the Appellants would contend that the Legislature consciously having not included the expression 'will' in Section 73AA of the Code, it cannot be read into something as 'cautious omissus'. When the words used are capable of only one construction, it will not be open to the respondents to adopt any hypothetical construction on the ground that such construction is more consistent with the object and policy of the Code.

6. In the analogous case, Letters Patent Appeal No. 1549 of 2010, the Appellant claims right, title and interest of land bearing Survey No. 264-paiki of village Chandrapur, Taluka Wankaner, District Rajkot, which originally belong to one Bhan