BALIA, J. - (1.) HEARD learned counsel for the parties, These two writ petitions are raising common issue of law and, therefore, the same are being heard and decided together.
(2.) IN D. B. Civil Writ Petition No. 1554/1991 a suit was filed by respondent No. 1 to 3 and heirs of Chand Singh respondent No. 4 to 8 against the petitioners Dara Singh and INdar Singh for partition of agricultural property held by one Sundar Singh. Petitioners as well as respondent No. 1 to 3 and Chandan Singh were the sons of Sundar Singh. Sundar Singh is alleged to have executed a will in favour of the petitioners be- questing his entire agricultural land admeasuring about 48 Bighas in favour of the petitioners. The plaintiffs respondents have challenged the authority of Sundar Singh to execute Will and divert the ordinary rule of intestate succession. Ultimately, the Board of Revenue while affirming the order of the Revenue Appellate Authority has held that the property in question was self acquired property of Sundar Singh. Though under the ordinary law which Sundar Singh had full disposition power but on account of special provisions contained in Sec. 13 of the Rajasthan Colonization Act, as it stood at the time of the death of Sundar Singh, which prohibited transfer of property by Will also in the lands governed by or under the Colonization Act, the disposition power of Sundar Singh was inhibited. It has been contended by the learned counsel for the petitioners of this writ petition, challenging the orders of the Board of Revenue dated 28. 1. 1991 that a Will speaks after the death of testator and the property devolves on the legatee by succession and not by way of transfer. Therefore, Sec. 13 of the Colonization Act which prohibits transfer of the tenancy rights in the colony area without previous permission of the Collector does not apply to the devolution by succession, testamentary or intestate. Other Writ Petition No. 348/1992 has been preferred by one Ram Kumar who is legatee of one Khayali Ram under a registered Will. He applied for mutation of the land standing in the name of his father Khayali Ram, which was objected by one of his sisters Mst. Chawli. In the first instance the mutation was made in favour of the petitioners on 18. 8. 1978 by Tehsildar, which order has been set aside on appeal by the Revenue Appellate Authority on 19. 2. 1982 because notices have not been served on other persons who would have been the heirs had the succession been intestate, which included widow of Khyali Ram and his three daughters. Once again after remand the mutation was ordered to be made in favour of petitioners on 12. 7. 1982 by the Tehsildar by giving effect to the `will' which order was again set aside by the Revenue Appellate Authority on 13. 4. 1983 and the matter was again remanded to the Tehsildar for passing fresh orders. In its order dated 28. 4. 1983 the Revenue Appellate Authority has referred to its earlier order dated 19. 2. 1982 making out clearly that by its earlier order the Tehsildar was directed to examine and order mutation on the basis of succession and not on any other basis. It was not right on the part of the Tehsildar again to have mutated the land in favour of the legatee on the basis of the Will. In pursuance of the order dated 28. 4. 1983, the mutation was ordered to be effected in favour of all the heirs as if the succession has taken place intestate and not in favour of Ram Kumar alone. This order was subjected to appeal before the Revenue Appellate Authority, who by its order dated 2. 11. 1984 held that the transfer of rights of agricultural land in the colony area by a Will is not permissible under Sec. 13 of the Colonization Act except with the previous permission of the Collector and, therefore, the Will cannot be given effect to by ordering mutation in the name of legatee. This order has been affirmed by the Board of Revenue vide its order dated 19. 11. 1991. The contention on merit arising in both the cases is one : that Will takes effect on the death of the testator, therefore, it does not amount to a transfer of any property or interest in property. It is contended that the transaction inter-vivos is necessary ingredient of any transfer of property and it does not include devolution by succession on the death of the holder of the property. The latter event is known as devolution or transmission of property, but not transfer of property.
(3.) IT is true that a Will is not an instrument of transfer in the ordinary sense as it is understood in the context of Transfer of Property Act, which governs all cases of transaction inter- vivos. A Will contains dictates of a person in whom his interest in property is to vest after his death. Thus, the instrument of Will takes effect not during the life-time of the executor of the Will but only after his death, provided always that it is the last Will of the testator. In a way it is devising by the holder of the property his own line of succession on his death by nominating the persons or the cause for whom the property shall devolve on his death. During his life time the testator continues to hold the property and it does not confer any right on the legatee. The holder of property has right to write a new Will at any time before his death. Such vesting of property is not governed by the Transfer of Property Act but is expressed by the term `devolution of property by transmission' and is governed by Indian Succession Act. However, it cannot be lost sight of that the expression `transfer' in its broad sence includes all forms of transfers of disposition of property whether transfer is inter-vivos or transfer is by devolution on succession. It includes transfer by act of parties as well as or by operations of law. The Shorter Oxford Dictionary defines `transfer' generally to mean `conveyance from one person to another of property' or `to convey or make title right or property by deed or legal process. ;