JUDGMENT P.K. Palli. J.{Oral) :- Both these appeals are proposed lo be disposed of by a common judgment as the questions of law and facts involved in both these appeals are identical except that the tenant lands are situated in two different revenue estates that is Behli and Sujhiala. II may also be noticed that two separate suits were filed by the same plaintiffs against the same defendant. Two separate appeals were filed, which were also disposed of by the first appellate Court by a common judgment. The present appeals have been filed by the defendant. The parties, herein-after in this judgment, shall be referred to as plaintiff and defendant. 2, One Daya Ram filed a suit stating that Mst. Thunthi was a tenant on the suit land, who died in the year 1964. On her death the plaintiff claimed to have succeeded to her rights in the land being her male collateral. 3. Defendant Mansha Ram on the death of Mst. Thunthi claimed succession to her right, title and interest in the suit land on the basis of a Will having been executed by Mst. Thunthi in his favour. Mutation was sanctioned in his favour, which was up held by the Financial Commissioner vide order dated March 12, 1981. 4. According to the plaintiff, Mst. Thunthi hoc given the suit Kind to one Maru for the purpose of cultivation and defendant forcibly took its possession in the year 1976. The plaintiff, thus, claimed a decree that he has become owner of the suit land and the defendant has nothing to do with it. 5. Defendant, Mansha Ram, while laying contest to the suit, relied upon the ‘Will’ dated March 20, 1963 and claimed himself to be owner in possession of the suit land on the death of Mst. Thunthi.. Relationship of deceased Mst Thunthi with the plaintiff was denied. The plea of limitation was also raised by the defendant. 6. The trial Court., on appreciation of the material placed on record, decree the suit holding that the plaintiff has succeeded to the suit land on the basis of inheritence and the entire in the record in favour of the defendant are wrong and inoperative qua the rights of the plaintiff and by way of consequential relief, decree for possession has been granted to him. 7. 7. On appeal by the defendant, the judgment and decree passed by the trial Court stands upheld 8. Mr. Bhupender Gupta, learned Counsel appearing for the defendant, while opening his address of argument, contends that both-the Courts below have wrongly held that the ‘Will’ could not validly be executed by deceased Mst Thunthi. who was a tenant on the land in question and the execution of the Will a not a transfer of property under the provisions of Transfer of Property Act nor there is am such bar under the statute that "Will" cannot be made in such a situation According to the learned counsel, it was a mode of succession chosen by the tenant and Section 6X of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Apt. 1953. does not prohibit such a testament and the courts below have gone wrong in holding that there is a complete bar for the tenant, as provided in the above said Section Learned counsel also relics upon mo judgments reported in AIR (31) 1944 Oudh. 65. (Raja Surender Vikram Singh Rani Munia Kunwar and another) and AIR 1959 Jammu and Kashmir 62 (Leila Devi Dass v. Panna Lal), in support of his contentions. 9. It may also be noticed that Mr. Gupta has also urged that the present suits are barred by limitation, as the order of mutation could be laid challenged within one year, as provided for the Article 100 of the Limitation Act 10. Learned counsel appearing for the plaintiff besides relying upon the observations made in the impugned judgments of the Courts below submits that she tenant can not be permitted to nullify that effect of the provision contained in the aforesaid Act which speciaifically declares any transfer of interest by the tenant except-as permitted by the provision to clause (c) of sub-section (1) of S.54 of the above said Act. Mr. Kuthiala further relies upon the case law reported in AIR 1986 SC.600, (Bhavar Lalchand Shah v. Kanaiyalal Suthala Intawala), (1984) 4 Supreme Court Cases. 434 (Jaspal Singh v. Additional District Judge Balandshahr andothers) & I979 S.L.C. 215 .(Daulat Ram and others v. State of Himachal Pradesh and others) and submits that there being no merit in the appeals and the same deserve to be dismissed. 11. 434 (Jaspal Singh v. Additional District Judge Balandshahr andothers) & I979 S.L.C. 215 .(Daulat Ram and others v. State of Himachal Pradesh and others) and submits that there being no merit in the appeals and the same deserve to be dismissed. 11. After hearing the learned counsel for the parties at length and on careful perusal of the impugned judgment and the record, 1 find that both the appeals deserve to be dismissed. 12. In short what is being urged from the side of the defendant is that the execution of the Will by the deceased in his favour cannot be termed as transfer and section 68 of the above said Act lays restrictions on the tenant in respect of transfer of interest in the tenanted land except as provided for under the proviso to clause(c) of sub-section (l) of Section 54. 13. Before this argument is appreciated it would be useful to take notice of the fact that in the record-of-rights, that is, Jamabandis. which have been placed on record, it is clearly made out that Mst. Thunthi is described in the column of cultivation as "BHAINTDAR" over the sit land. The entire are not denied by the other side. It is also not disputed that on the death of Mst. Thunthi mutation was sanctioned in favour of defendant Mansha Ram vide Ext. D.3. It is further not denied that Mst. Thunthi died in the year 1964. 14. At the time of the death of tenant Mst. Thunthi aforesaid Act was in operation. It is at this stage that notice be taken of Sections 67, 68 and 54 of the aforesaid Act. 15. Section 67 deals with the succession to the right of tenancy it reads when a tenant in any land dies, the right shall devolve- (a) on his male lineal descendants, if any in the male line descent: and (b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected there from; and (c) failing such descendants and widow, on his widowed mother, if any. until she dies or re-marries or abandones the land or is under the provisions of this Act ejected therefrom; (d) failing such descendants and widow, or widowed mother or if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b)or (c) of this sub-section, on this male collateral relatives in the male fine of descent from the common ancestor of the deceased tenant and those relatives." 16. Notice may now be taken of Section 68 which deals with irregular transfers. If reads like this, "any transfer of the interest of a tenant except us permuted by the provision to clause (c)of sub-section (l) of section 54 shall be void." 17. Alter noticing the aforesaid two Sections, the relevant provisions contained in Section 54 arc also required to be looked into. It reads as under: "Grounds S.54(l) A tenant not having a right of eject—of occupancy shall not be liable to ment of ejectment from his tenancy except on other any one or more of the following tenants, grounds, namely- (a) (hat he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he holds it: (b) that he, where rent is payable in kind, has failed without sufficient cause to cultivate or arrange for cultivation of the land comprised in his tenancy in the manner or to the extent customary in the locality in which the land is situate; (c) that he, sublets the holding or part thereof for profit without the consent of the landlord; Provided that a member of the Armed Forces, an un-married woman, or if married, divorced or separated from husband or a widow, a minor, a person suffering from physical or mental disability because of which he cannot cultivate the land himself, a person prosecuting studies in a recognized institution and a person under detention or imprisonment shall not be liable to ejectment because he sublets the holding or part thereof without die consent of the landlord." 18. As per sub-clause (d) of Section 67, the tenancy rights would devolve on the male collateral-relatives in the male line of descent from the common ancestor of the deceased tenant. 19. It would be quite useful to notice at this stage that the relationship of the plaintiff with the deceased is not denied. Even otherwise pedigreetable. Ext. As per sub-clause (d) of Section 67, the tenancy rights would devolve on the male collateral-relatives in the male line of descent from the common ancestor of the deceased tenant. 19. It would be quite useful to notice at this stage that the relationship of the plaintiff with the deceased is not denied. Even otherwise pedigreetable. Ext. PW-l/A. has been placed on record. The perusal of it goes to establish that Daya Ram plaintiff is the male-collateral of deceased tenant Mst. Tlunthi. Mst. Thunthi is recorded as widow of Gulzari. Daya Ram is shown as son of one Nikka. Gulzari and Nikka are shown as real brothers being sons of one Chandu. 20. Mr. Bhupender Gupta fairly concedes that but for the "Will" the tenancy rights are to devolve on the plaintiff as per provisions noticed above. 21. Admittedly, Gulzari died issueless leaving behind his widow Mst. Thunthi. As per pedigreetable deceased Mst. Thunthi was the real aunt of plaintiff. Daya Ram It is further an admitted position that the land was held by the State Government at the relevant time. Jamabandis of the year 1962-63. Ext. P-2. 1965-66, Ext. P.I and Ext. D.4 may be looked into with advantage for this purpose. Towards similar effect are the entries contained in the Misal Haquajt Exts. PW-l/D to PW-l/H: 22. Section 68, as noticed above, lays down that any transfer of interest of a tenant except as permitted by the proviso to clause(c) of sub-section (1) of Section 54 shall be void. 23. A tenant under .Section 54 who is not having a right of occupancy is not liable for ejectment except when he has used the land in the manner which render it unfit or has-failed to cultivate it without sufficient cause and also if he sublets the holding or any part for profit without the consent of the land-lord. 24. It is the proviso which is added to this provision that deserves to-be looked into carefully. Under the said proviso, a member of the Armed Forces un-married woman, or if married, divorced or separated from husband or a. widow, a minor a person suffering from physical or mental disability person prosecution studies and one under detention or imprisonment; are not liable to , be ejected. 25. The case of deceased Mst. Thunthi as a sitting tenant is not covered by the proviso. 26. 25. The case of deceased Mst. Thunthi as a sitting tenant is not covered by the proviso. 26. Sub-clause (b) of Section 67 has also an important bearing on the present controversy. The right of a tenant shall devolve on his widow, if any until she dies or re-marries or abandons the land. 27. It is to be seen that the rights of Gulzari who was the original tenant devolved on Mst. Thunthi, his widow and the provisions makes ii amply clear that the rights would devolve on the widow until she dies or re-marries or abandons the land. 28. As I look at the provision, the rights which have come to be devolved on the widows would come to an end on her re-marriage or death or where she abandons the land. This provision when read with Section 68 and 54 as noticed above, clearly indicates that the widow can enjoy the rights devolved upon heron the death of her husband and on her death on the male collateral relatives in the male line of descendant from the common ancestor of the deceased tenant. 29. If the argument put forth by Mr. Bhupender Gupta is appreciated, it would mean that a sitting tenant can always by -pass the provisions contained in the Act by executing a "Will” of the tenancy rights and thereby depriving such person who are legally entitled to succeed to the interest of tenancy 30. As I look at this provision, a tenant cannot be permitted to bequeath his right of occupation by a Will in favour of some one, who is not covered by the definition. In the given situation, the defendant cannot be permitted to claim any right in the tenancy being an heir of the tenant muchless on the strength of a Will. The provisions contained in Section 68 read with Section 54 of the Act leaves no room for doubt and the tenant cannot be permitted to create any right whatsoever except as which is provided for by law. Once it is found that tenancy rights could not be passed on as such by any colorable transaction it may be seen, it cannot be permitted to nullify the effect of the mandate by the legislature. 31. Once it is found that tenancy rights could not be passed on as such by any colorable transaction it may be seen, it cannot be permitted to nullify the effect of the mandate by the legislature. 31. Coming next to the question of limitation, it n\ay be noticed that the order of the Financial Commissioner was passed on March 12, 1981 in one case. The present suits were filed in the year 1983. These suits cannot be held to be time barred. 32. Another point which needs to be examined is that the creation of a right, title or interest on the strength of a Will’ has the effect of nullifying the provisions of the statute and would in a given situation am mini to transfer which is clearly prohibited. It could not be a transfer strictly under the provisions of the Transfer of Property Act but would amount to something similar to it. The order sanctioning the mutation in favour of the defendant does not confer any title on him. The mutation order being against the provisions of the Act shall be deemed to be completely void. I am not in dis-agreement with the observations made by the first appellate Court that the plaintiff was not even required to assail these orders. 33. The plaintiff in the given situation could maintain the suits quite independently basing his claim on the rights which flow to him on account of the provisions noticed above. I am of the considered opinion that there is no force in the plea that the suits, being time barred under Article 100 of the Limitation Act are to be dismissed. 34. No other point has been pressed. 35. I, thus, find no illegality or impropriety in the impugned judgments which are consequently, upheld. 36. For the reasons given above, both the appeals fail and arc dismissed. There shall, however, be no order as to costs. Appeal dismissed.