JUDGMENT
Janardan Sahai, J.
1. A suit for permanent injunction was filed by the appellant against the defendant-respondent restraining her from transferring the property in dispute which is undisputedly a bhumidhari agricultural land, Umrao Singh was the original tenure holder of the land in dispute. He executed a Will dated 30.12.1985 by which he bequeathed the disputed land to the respondent Dhanwanti his widow and by the same Will he also bequeathed other land to the plaintiff. The fate of this case depends upon the validity of a clause contained in the Will by which a restriction was put upon the right of the respondent to transfer the property. The plaintiffs case was that in view of the restriction in the Will the respondents have no right to transfer the property. The case of the defendant respondents was two fold-firstly that no such Will was executed by Umrao Singh and that the defendant had got the property of his brother Umrao Singh by inheritance and secondly that the restriction in the Will was invalid. Both the courts below have negatived the defendant’s plea that the Will was not proved to have been executed. However, the suit has been dismissed by both the courts below though they have given different reasons. The trial court applying the provisions of Section 14 of the Hindu Succession Act has taken the view that by virtue of that provision the widow has an absolute estate. The appellate court has maintained the decree but on the ground that the restriction on the right of transfer was invalid as the U.P. Zamindari Abolition and Land Reforms Act does not contemplate a limited owner and therefore transfer made by a female bhumindar is effective at all times.
2. I have heard Sri J.J. Munir counsel for the appellant and Sri Amit counsel for the respondents.
3. Sri Munir submitted that the Will created a life estate in favour of the defendant and restriction on the right of transfer thereunder was valid. I am not inclined to agree with the submission. The testator died in April, 1980 and it is not in dispute that the tenure of the land was bhumidhari, bhumidhari tenure has certain incidents created by the statute itself. It is nobody’s case that the land was Bhumindari with non-transferable rights, under Section 152 of the U.P. Zamindari Abolition & Land Reforms Act a bhumidhar has a right to transfer the property and such right is subject only to the restrictions contained in the Act itself as provided in Section 152 (1) itself. The restrictions on transfer are contained in Sections 154, 154A, 155, 156. 157A, 157AA, 161, 164, 165. There is no restriction under the Act upon the right of a female bhumidhar to make a transfer apart from the aforesaid general restrictions on transfers, which apply to male and female bhumidhars alike. Section 169 (2) which restricted the right of a female bhumidhar mentioned in that section to bequeath her property by Will has now been deleted. The right to transfer cannot be restricted either by contract or by a Will of a tenure holder. The restriction contained in the Will that the legatee respondent would not have right to transfer the property is repugnant to the incidents of a bhumidhari tenure under the U.P. Zamindari Abolition & Land Reforms Act and is as such void. Counsel for the appellant placed reliance in the case of Ramji Dixit (Dead) by his legal representatives and another v. Bhrigunath and Ors., 1968 RD 293 SC. In that case the plaintiffs claiming to be reversioners of the last male tenant had challenged the gift made by his widow on the ground that under the Act the widow had only a life estate and therefore the gift was invalid. It was held by the Apex Court that there is nothing in the Act to indicate that the Act confers only a limited estate upon the female bhumidars mentioned in Section 169 (2) of the Act. The case does not directly apply. However, the contention of Sri Munir that a life estate was created in favour of the legatee respondent is not acceptable. In view of the nature of bhumidhari rights, a life estate is not contemplated. Tenancy rights under the U.P. Zamindari Abolition & Land Reforms Act are rights created under the statute. The incidents of such right are provided under the Act and any restriction, which infringes a right under the Act will be invalid. As such the restriction upon the right to transfer imposed by the Will is invalid. That apart the reading of the Will does not indicate that the testator had created any life estate. No substantial question of law arises in this appeal. The appeal is, therefore, dismissed.
