DWARKA PRASAD GUPTA, J. - (1.) THIS writ petition has been filed against the order of the Board of Revenue for Rajasthan, Ajmer dated June 6, 1974 allowing a second appeal preferred before it by respondent No. 2 and arising out of a suit for declaration and injunction.
(2.) THE petitioner filed a suit in the court of Sub -Divisional Officer, Sri Karanpur for a declaration and injunction on the allegation that he was the tenant of half share of Marimba No. 41 of Chak LNP, which was inherited by him from his father and that the defendant Jagir Singh, who is his real brother, was the owner of the tenancy rights in the other half of the aforesaid holding. Jagir Singh respondent No. 2, however, claimed himself to be the sole owner of the entire land in dispute on the basis of a Will, said to have been made in his favour by Pasha Singh, the father of both, the plaintiff as, well as the defendant. The Sub -Divisional Officer as well as the Revenue Appellate Authority held that the Will was executed by Pakhar Singh without the consent of the Collector of the District and as such the transfer was void on account of the provisions of Section 13 of the Rajasthan Colonization Act, 1954 (here in after referred to as 'the Act'). Both the aforesaid courts decreed the plaintiff's suit and gave declaration in favour of the plaintiff as prayed by him. On second appeal the Board of Revenue held that a Will could not amount to a' transfer' and as such a testamentary disposition of tenancy rights in the testator's property is not barred by Section 13 of the Act, unless the tenancy rights were sought to be transferred under the colour of a testamentary disposition or a charge was created thereon through such disposition. Consequently, the second appeal preferred by the respondent was allowed by the Board of Revenue by its order dated June 6, 1974 and the plaintiff's suit was dismissed.
(3.) IN this court, it was argued by the learned Counsel for the petitioner that Section 13 of the Act prohibits transfer of any right of a tenant or condition of a charge. Section 13 of the Act runs as under: 13. Transfer of rights - -(1) Except as provided in Section 13, none of the rights or interests vested in a tenant by or under this Act shall, without the consent in writing of the Collector, be transferred or charged by any sale, exchange, gift, Will, mortgage or other private contract other than a sub -lease for not more than one year in the case of tenant who has not acquired Khatedari rights and five years in the case of a tenant who has acquired Khatedari rights; (2) Any such transfer or charge made without such consent shall be void and, if the transferee has obtained possession, he shall be ejected under the orders of the Collector. ;