A Will executed by a tribal law owner does not require Collector's permission for validity under land transfer laws.

JUDGMENT :

SANJAY DWIVEDI, J.

1. This appeal is under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 16.11.2022 passed by V Additional District Judge, Katni in Civil Appeal RCA No. 66/2022 dismissing the same affirming the finding given by the trial court dismissing the suit i.e. Civil Suit No. RCSA 318/2021 decided by order dated 20.06.2022.

2. This appeal is of 2022 and was admitted on 24.09.2023 on the following substantial question of law:-

“Whether the courts below were justified in holding that the appellant did not derive any right, title or interest in the land through the Will executed by late Lagni Bai because of the prohibition contained in Section 165 of the Land Revenue Code.?”

3. Before answering the submission made by the learned counsel for the parties and also the substantial question of law framed by the Court while admitting the appeal, necessary facts of the case are required to be mentioned:

4. A civil suit was filed by the plaintiff/appellant seeking declaration of title and permanent injunction saying that the land situate at Village Bichhiya Survey No. 03 area measuring 1.570 hectare and Survey No. 4 area measuring 2.050 hectare, the land of village Gulwara Survey No. 408 area measuring 4.440 hectare, land of village Gaitra Survey No. 403 area measuring 0.430 hectare and Survey No. 404 area 0.430 hectare and the land of Village Badagaon Survey No. 1504 area 0.410 hectare and Survey No. 1505 area measuring 0.390 hectare owned and possessed by him and a decree in this regard be passed and consequent upon the said decree, the respondents be restrained permanently from interfering in the peaceful possession of the plaintiff over the suit lands. All the suit lands originally belonged to one Lagnibai having no legal heirs and she was being taken care of by the plaintiff who was looking-after her in her lifetime. Lagnibai considering all these aspects, in full sensibility, executed a Will on 21.12.2020 and at the time of executing the same, some Chandrabhan Dubey and Anand Kumar Barman came with her at Tahsili Court. The said Will got notarized before the Notary, who verified the thumb impression of Lagnibai. She died on 08.03.2021 and after her death, plaintiff became the owner all her land and was also in possession of the same. In the revenue record, the land is still recorded in the name of Lagnibai. Since the Revenue Court could not mutate the name of the plaintiff on the basis of Will, therefore, plaintiff had no other option but to file a suit. According to the plaintiff, the Will was not a document of transfer and as such he was not required to take any permission from the Collector. Hence, it was claimed in the suit that on the basis of Will dated 21.12.2020, the plaintiff was entitled to get a decree of declaration and permanent injunction.

4.1 Since the defendants/respondents remained ex-parte, therefore, the trial court proceeded in the matter so as to decide the issue as to whether plaintiff was entitled to get a declaration, as has been claimed by him in the suit, and also entitled to get the decree of permanent injunction or not.

4.2 The plaintiff in support of his claim produced several documents and also the witnesses, who supported the stand of the plaintiff, as was taken in the plaint.

4.3 The trial court finally dismissed the suit and refused to grant any decree in favour of the plaintiff mainly on the ground that Lagnibai belonged to scheduled tribe category and if any transaction was to be made in favour of a non-tribe person then as per Sectio