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 & 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.
3. 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.
4. 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.
5. The aforesaid provision prohibits the transfer by a tenant of a right or interest in agricultural land, by way of sale, exchange, gift, Will mortgage or in any other manner otherwise than by exchange, without the consent in writing of the Collector. In the present case, the transfer of his rights by the Khatedari tenant thereof is alleged to have been made by means of a Will, but such transfer is prohibited in the terms of Section 13. It is not the case of respondent No. 2 that the consent of the Collector was obtained before proceeding to transfer the rights in the land in dispute by means of a Will. The Board of Revenue has taken the view that a breach of the conditions contained in Section 13 would not involve any evil consequences for the tenant but it is the transferee or the person who has secured the charge who would be ejected if be has, obtained possession of the holding in respect of which the violation of the provisions of Section 13 has taken place. I am unable to agree with the view taken by the Board of Revenue.
6. Section 13 also provides the conditions on which land is held by a tenant in a colony besides the conditions prescribed in the general colony conditions or other statement issued under the provisions of the Act. Thus, a breach of the conditions contained in Section 13 will also attract the imposition of a penalty under Section 14. Thus Section 14 also becomes applicable when a tenant in possession of land in a colony has committed a breach of the conditions prescribed by Section 13. Even on the basis of the beaching adopted by the Board of Revenue, the transferor, who was the original tenant has expired and the respondent No. 2 claims to be in possession of the disputed land by virtue of the Will said to have been executed by his deceased father. If the transfer made by virtue of a will is held to be void, on account of the provisions of Section 13, then the transferee is liable to be ejected in accordance with the provisions of Section 13 itself.
7. The board of Revenue was not justifying making a distinction between a will and other documents of transfer for purpose of Section 13, because Section 13, specifically prohibits transfer by a will besides prohibiting transfer by other modes as well. The validity of transfer cannot be upheld on the basis that the testator has selected one amongst his natural heirs to succeed him and has not transferred the tenancy rights in any manner including by way of a testamentary disposition. It is not permissible to uphold the transfer in the present case on the basis of the supposed intention of the legislature our the alleged policy behind the enactment when the transfer was made in contravention of clear and unambiguous provision of Section 13 the board of Revenue fell in to error in upholding the transfer by way of a will on the ground that the legislature did not lay down the circumstances in which a Will should amount to a transfer. On the basis of the provisions of Section 13 a will has been included among the various modes of transfer enumerated therein and it is not permissible to decide the case ignoring the express bar created by the provision of Section 13. As the transfer by way of will is pro habited in the case of tenancy rights in a land situated in a colony the board of Revenue was not justifier in upholding the transfer of tenancy rights by way of will
8. It may be pointed out that the provision of the Rajsathan Tenancy Act have been made applicable to the land situated in a colony by virtue of the provision of Section 5 of the Colonization Act in so far as they are not inconsistent with the provision of the colonization Act and the statement issued there under including the general colony conditions. Thus the provision of Section 39 of the Rajasthan Tenancy Act have no application to a land situated in a colony on account of the express provision contained in Section 13 of the Rajasthan Colonization Act.
9. In the result the writ petition is allowed and the order passed by the board of Revenue for Rajasthan dated June 6, 1974 is set aside and the order passed by the Revenue Authority Jaipur camp Bikaner dated December 14, 1972 is restored. Te parties are left to bear their own Costs.