JUDGMENT S.N. Dwivedi, J. - In this appeal the real adversaries are close relations. There was one Mohammad Sibtain, He had two wives, Kaniz Hajra and Kaniz Zohra. Kaniz Hajra had two sons, Hasan Mujtaba and Hasan Mortaza. Hasan Murtaza predeceased Mohammad Sibtain, leaving behind his son, Qaiser Hasan. Hasan Mujtaba and Qaiser Hasan are Respondents Nos. 4 and 5 in the appeal. Kaniz Zohra gave birth to three daughters, Niaz Bano, Tahira Khatoon and Zohra Khatoon. Kaniz Zohra and her three daughters are the Appellants in the appeal There is a contest in the appeal between the Appellants on one side and Hasan Mujtaba and Qaiser Hasan, Respondents Nos. 4 and 5 on the other. 2. The dispute flared up before the consolidation authorities in regard to three khatas, 17, 19 and 44, in village Dhansiya. Khata No. 17 was sir of Mohammad Sibtain, khata No. 19 was his grove and khata No. 44 was his khudkasht. The case of the Appellants was that Qaiser Hasan had no concern with any of the three khatas and that on the death of Mohammad Sibtain on 10-4-1951 the Appellants and the fourth Respondent, Hasan Mujtaba, inherited all the khatas as his heirs. According to Respondents Nos. 4 and 5 Mohammad Sibtain had, during his life time, inducted them as tenants in khata No. 44 and that on the abolition of zamindari they have become sirdars of this khata. They also alleged that Mohammad Sibtain had executed a Will on 4-6-1950 under which he gave his proprietary and sir rights in khata No. 17 and half share in khata No. 19 to Qaiser Hasan. The Consolidation Officer rejected the Respondents' case regarding the execution of a Will by Mohammad Sibtain but accepted their case regarding the creation of tenancy in their favour by him during his life-time. On this finding he held that the Appellants and Hasan Mujtaba were the tenureholders of khatas Nos. 17 and 19 and that Respondents Nos. 4 and 5 were the sirdars of khata No. 44. 3. Both parties went up in appeal against the order of the Consolidation Officer. In appeal the Settlement Officer (Consolidation) held that the Will set up by the Respondents Nos. 4 and 5 was genuine and that the tenancy in their favour over khata No. 44 was not proved. Accordingly he held that the Appellants as well as Respondents Nos. 3. Both parties went up in appeal against the order of the Consolidation Officer. In appeal the Settlement Officer (Consolidation) held that the Will set up by the Respondents Nos. 4 and 5 was genuine and that the tenancy in their favour over khata No. 44 was not proved. Accordingly he held that the Appellants as well as Respondents Nos. 4 and 5 were joint tenureholders in all the three khatas. 4. Then both the parties went in revision. The Deputy Director of Consolidation agreed with the Settlement Officer (Consolidation) that the Will had been proved. He also held that Mohammad Sibtain inducted Respondents Nos. 4 and 5 over khata No. 44. Accordingly he held that the Appellants and Respondents Nos. 4 and 5 were joint tenureholders of khatas Nos. 17 and 19 and that Respondents Nos. 4 and 5 were exclusive sirdars of khata No. 44. 5. The Appellants then filed a writ petition in this Court challenging the decision of the-Deputy Director of Consolidation. Before the learned single Judge who heard the petition the conflict was confined to two khatas, 17 and 44. As regards khata No. 17, counsel for the Appellants urged before the learned single Judge that the Will set up by Respondents Nos. 4 and 5 was not proved, that assuming that the Will was proved, it was invalid and ineffective in so far as it transfers to Qaiser Hasan, the fifth Respondent, the sir rights in khata No. 17 and that the finding of the Deputy Director of Consolidation that Mohammad Sibtain had created tenancy over khata No. 44 in favour of Respondents Nos. 4 and 5 was manifestly erroneous. 6. The learned Judge was of opinion that the finding of the Deputy Director of Consolidation that the Will was proved is not vitiated by any manifest error of law. He was also of opinion that the finding of the Deputy Director of Consolidation that Mohammad Sibtain had created tenancy over khata No. 44 in favour of Respondents Nos. 4 and 5 was a finding of fact and was based upon relevant evidence and that accordingly it was not open to challenge in a writ petition. Regarding the argument that even if the Will was proved, it was invalid and ineffective as regards sir rights, the learned Judge did not uphold the contention. 4 and 5 was a finding of fact and was based upon relevant evidence and that accordingly it was not open to challenge in a writ petition. Regarding the argument that even if the Will was proved, it was invalid and ineffective as regards sir rights, the learned Judge did not uphold the contention. Further, as this point was not agitated before any one of the consolidation authorities, the learned Judge also took the view that "it is not possible to hold that the Dy. Director has committed a manifest error of law in respect of a point of law not raised before him and not decided by him.' On those findings the learned Judge dismissed the writ petition. Feeling aggrieved with the judgment of the learned single Judge the Appellants have filed the present appeal. 7. Counsel for the Appellant has recanvassed the arguments advanced by him before the learned single Judge. It is a sufficient reason to dispose of his arguments as regards khata No. 44 that the finding recorded by the Deputy Director of Consolidation is a finding of fact. We have perused his order and we are satisfied that it is supported by evidence. Accordingly it cannot be challenged in the writ petition. 8. The same reasoning is adequate to demolish the argument that there was no evidence to prove the Will. The Deputy Director of Consolidation had held that the Will was proved. It is a finding of fact and is supported by evidence. Accordingly it cannot be challenged in the writ petition. 9. We shall now examine the argument of counsel for the Appellants that even if the Will is proved, it is invalid and ineffective as regards sir rights over khata No. 17. The Will was executed when the UP Tenancy Act was in force Sir right is defined in Section 8 of the said Act It means the rights conferred on sir-holders by the Act and by the UP Land Revenue Act and includes the right to exclusive possession of the sir against co-sharers of the sir-holder in the proprietary right, subject to liability to account for profits. It will thus appear that a sir right is a special right distinct and discrete from the proprietary right of the sir-holders in the sir-land. Section 9 regulates the succession to and transfer of sir right. It will thus appear that a sir right is a special right distinct and discrete from the proprietary right of the sir-holders in the sir-land. Section 9 regulates the succession to and transfer of sir right. It reads as follows: (1) On the death of a sir holder sir rights shall not devolve except in accordance with the personal law to which the deceased was subject, (2) sir right is not transferable except-- (a) by gift to a person to whom the proprietary right in the sir is gifted, or (b) by exchange: Provided that no sir-holder shall exchange sir for sir in a mahal in which he is not a co-sharer unless the proprietary rights in the sir are exchanged. The next material section is Section 12. Sub-clause (1) of Section 12 provides as follows: If on the death of a sir-holder the proprietary right in his sir does not devolve according to the personal law to which the deceased was subject, every person on whom no such right devolves but on whom such right would have devolved in accordance with that law, shall become a hereditary tenant of so much of such sir as corresponds with the share in such right as would have devolved on him according to that law. Sab Clause (2) of Section 12 is not pertinent for our purpose and it is accordingly not reproduced here. There is an explanation to Section 12. As it has got a bearing on the case, we quote it now. It read: In this section and in Section 9 the expression 'personal law' in the case of Muslims shall mean the Muslim law of inheritance. 10. The word 'personal law' in Sub-section (1) of Section 9 is to be read in the light of the explanation in this case, as we are concerned with the Muslim litigants. In view of the explanation sir rights shall not devolve except in accordance with the Muslim law of inheritance. The peculiar semantic framework of Sub-section (1) of Section 9 suggests that all other modes of devolution except one in accordance with the Muslim law of inheritance are shut out as regards the succession to sir rights. A Will regulates testate succession and succession is a mode of devolution. Accordingly we are of opinion that Sub-section (1) of Section 9 excludes the devolution of sir rights by a Will. A Will regulates testate succession and succession is a mode of devolution. Accordingly we are of opinion that Sub-section (1) of Section 9 excludes the devolution of sir rights by a Will. The view which appeals to us is further strengthened by Sub-section (2) of Section 9. It provides that sir right is not transferable except, speaking broadly, by gift or by exchange. Counsel for the Respondents has submitted that Will is not a transfer and accordingly it is not prohibited by Sub-section (2) of Section 9. We do not agree. We think that the word 'transferable' is used in this sub-section as meaning not only a transfer inter vivos but also a transfer taking place after the death of the transferor. A Will operates as a transfer of the testator's right on his death. That the word 'transferable' has been used in Sub-section (2) of Section 9 in the broader sense is borne out by Sub-section (1) of Section 44. Sub-section (1) of Section 44 provides that every transfer, other than a sublease, made by a tenant in contravention of the provisions of this Act shall be void. The word 'transfer' in this sub-section definitely includes the transfer by a Will. It has been held consistently by this Court that a Will devising tenancy rights which are made non-transferable by the Act is void. In view of this consideration we are of opinion that a Will devising sir rights is invalid and ineffective. 11. In this case the Will devised half of the proprietary rights as well as half of the sir rights in khata No. 17. The Will is effective qua the proprietary rights only. In this situation, Section 12(1) of the UP Tenancy Act will be attracted to the facts of the case and the Appellants will become hereditary tenants of half of the sir rights devised in favour of Qaiser Hasan. 12. We shall now notice the preliminary objection of counsel for Qaiser Hasan. The objection is that as the argument that the Will was invalid and ineffective was not raised before the consolidation authorities it should not be permitted to be raised in the writ petition. 12. We shall now notice the preliminary objection of counsel for Qaiser Hasan. The objection is that as the argument that the Will was invalid and ineffective was not raised before the consolidation authorities it should not be permitted to be raised in the writ petition. It is said by counsel for Qaiser Hasan that if this point were pleaded and argued before any one of the consolidation authorities, Qaiser Hasan could have pleaded and showed that he had been in adverse possession over half of the sir rights in khata No. 17 and has accordingly acquired the rights of a sirdar under the UPZA and LR Act. Indeed, in his counter-affidavit Qaiser Hasan has averred that he has been in possession over half of the sir rights ever since the death of Mohammad Sibtain. Again, it appears from the record that on the death of Mohammad Sibtain there was a mutation proceeding. In that mutation proceeding the Appellants and Qaiser Hasan arrived at a compromise by virtue of which the names of both the parties were mutated in place of Mohammad Sibtain. We are of opinion that the preliminary objection raised by counsel for Qaiser Hasan has got force and should be accepted. It is obvious that if the Appellants had pleaded and argued before the consolidation authorities that the Will was invalid and ineffective, Qaiser Hasan would have got an opportunity of pleading and showing that he had been in possession for sufficiently long time and has acquired sirdari rights u/s 210 of the UP ZA and LR Act. It would be unfair to Qaiser Hasan to allow the point to be taken now for the first time. Accordingly we agree with the learned Judge, though for a different reason, that the Appellants should not be permitted to raise this argument in this Court. 13. In the result we dismiss the appeal. As the appeal has succeeded partially we make no order as to costs.