ORDER 1. The petitioners by invoking jurisdiction of this Court under Article 227 of the Constitution has challenged the order of Additional Commissioner, Gwalior dated 25.6.2010 (Annexure P/2) and also the order of Board of Revenue (Board) dated 3.4.2012 (Annexure P/1). 2. The case of the petitioner is that the land at survey No. 211/1 situated in village Barkheda, Tahsil and District Ashok Nagar was owned by Janak Singh. Janak Singh was the “Bhoomiswami” of the said land. Janak Singh was unmarried and therefore, had no issues. It is projected that Chhogi Lal, father of the present petitioners, was residing with said Shri Janak Singh. Chhogi Lal was taking care of Janak Singh, therefore, Janak Singh executed a Will dated 26.1.1998 in favour of Chhogi Lal. After the death of Janak Lal, Chhogi Lal prefered an application for mutation on the basis of said Will. The application was preferred before the Gram Panchayat. The Gram Panchayat by its resolution No.1/25.2.2004 sent the matter to Tehsil Court. Application was sent to Tahsil Court because the mutation was disputed. At this stage, Chhogi Lal preferred second application before Tahsildar which was registered as case No.14/A-6/ 2003-04. It is contended by Shri B.S. Dhakad, learned counsel for the petitioner that on this application, advertisement was issued and objections were invited. In turn, respondents No.1 & 2 submitted their objections. 3. The Tahsildar after recording evidence passed the order dated 1.7.2004 (Annexure P/7) and mutated the land in favour of Chhogi Lal on the basis of said Will. Respondents feeling aggrieved and dissatisfied with the said order (Annexure P/7), preferred an appeal before Sub Divisional Officer (SDO) which was registered as case No.123/03-04/appeal. This appeal was rejected on 27.2.2006. 4. The respondents assailed the order of SDO by preferring second appeal before Additional Commissioner (Revenue), Gwalior Division. This second appeal was registered as case No.376 / 05-06/Appeal. During the pendency of said appeal, the original applicant, father of the present petitioners, Chhogi Lal expired. The respondents herein impleaded the present petitioners as legal representatives in the said appeal which was pending at the relevant point of time before Additional Commissioner. Additional Commissioner by order dated 25.6.2010 allowed the appeal and set aside the orders of the Courts below and remitted the matter back with certain directions. The present petitioners preferred a revision before the Board which was registered as case No. 999-2/2010. Additional Commissioner by order dated 25.6.2010 allowed the appeal and set aside the orders of the Courts below and remitted the matter back with certain directions. The present petitioners preferred a revision before the Board which was registered as case No. 999-2/2010. Board, by order dated 3.4.2012 rejected the revision and confirmed the order of the Additional Commissioner. Order of Additional Commissioner and the Board, aforesaid, are called in question in the present petition. 5. Criticizing the oder of the Additional Commissioner, it is contended by Shri Dhakad that Janak Singh was the “Bhoomiswami”. “Bhoomiswami” had a right to execute the Will in favour of Chhogi Lal. Because of execution of said Will Chhogi Lal became the Bhoomiswami. The petitioners, being legal representatives are entitled to enjoy their right on the said land. He submits that authorities below have erred in holding that even if Bhoomiswami rights accrued on “Patta land”, the said land cannot be transferred in favour of anybody, unless prior permission of the competent authority is there. He submits that section 164 of Land Revenue Code (Code) will apply and section 165 of the said Code has no application. 6. Per Contra, Shri S.S. Jadon, Advocate for the respondents supported the orders impugned and submits that as per 165 (7-b) of the Code, land could be transferred only after the permission of the Collector. In support of his contention he relied on 2002 RN 250 (Mulayam Singh and another v. Budhuwa Chamar and others), 2007 RN 218 (Raheesh Khan v. Suresh Chand and others) and 2002 RN 286 (Govind Vallabh Pant Grih Nirman Coop. Society v. Shri Ram Janki Mandir and others). 7. I have heard learned counsel for the parties and perused the record. 8. The Additional Commissioner in his order Annexure P/2 has doubted the genuineness and correctness of the Will. In addition, he opined that by way of Will the title is transferred and therefore, it cannot be done without the express prior permission of the competent authority. Before dealing with the correctness of these findings, I deem it proper to reproduce the relevant provision of section 164 of the Code, which reads as under :- 164. In addition, he opined that by way of Will the title is transferred and therefore, it cannot be done without the express prior permission of the competent authority. Before dealing with the correctness of these findings, I deem it proper to reproduce the relevant provision of section 164 of the Code, which reads as under :- 164. Devolution - Subject to his personal law the interest of Bhumiswami shall, on his death, pass by inheritance, survivorship or bequest, as the case may be.” Section 165 (7-b) of the Land Revenue Code reads as under :- “165 (7-b). Notwithstanding anything contained in subsection (1), [ a person who holds land from the State Government or a person who holds land in Bhoomiswami rights under sub-section (3) of section 158] or whom right to occupy land is granted by the State Government or the Collector as a Government lessee and who subsequently becomes Bhoomiswami of such land, shall not transfer such land without the permission of a revenue officer, not below the rank of Collector, given for reasons to be recorded in writing.]” 9. The petitioners’ contention is that on death of Chhogi Lal, petitioners, being legal representatives, are entitled to enjoy the property. Whereas, the stand of Shri Jadon is that without prior permission of the Collector, transfer is bad in law. 10. Section 164 of MPLRC deals with devolution, whereas, section 165 of the Code talks about “rights of transfer”. Section 164 of the Code makes it clear that interest of Bhoomiswami shall, on his death, pass by inheritance, survivorship or bequest. Thus, the right accrued to the legal representatives on the death of Bhoomiswami are to be dealt with as per section 164 of the Code. section 165 deals with transfer. The Indian Succession Act, 1925 defines ‘Will’ under section 2(h) which reads as under :- “2(h). “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” 11. The Supreme Court in (1997) 2 SCC 387 ( State of W.B.) and another v. Kailash Chandra Kapur and others) defined the difference between “transfer” and “Will” and observed that transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. The Supreme Court in (1997) 2 SCC 387 ( State of W.B.) and another v. Kailash Chandra Kapur and others) defined the difference between “transfer” and “Will” and observed that transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. A Division Bench of Karnataka High Court in N. Ramaiah v. Nagaraj S., AIR 2001 Karnataka 395 has held as under :- “12. The difference between a transfer and a Will are well recognized. A transfer is a conveyance of an existing property by one living person to another (that is a transfer intervivous). On the other hand, a Will does not involve any transfer, nor effect any transfer intervivos, but is a legal expression of the wishes and intention of a person in regard to his properties which he desires to be carried into effect after his death. In other words, a Will regulates succession and provides for succession as declared by it (testamentary succession) instead of succession as personal law (non-testamentary succession). The concept of transfer by a living person is wholly alien to a will. When a person makes a Will, he provides for testamentary succession and does not transfer any property. While a transfer is irrevocable and comes into effect either immediately or on he happening of a specified contingency, a Will is revocable and comes into operation only after the death of the testator. Thus, to treat a devise under a Will as a transfer of an existing property in future, is contrary to all known principles relating to transfer of property and testamentary succession.” 12. The Chhattisgarah High Court in 2009 (3) MPHT 68 (CG) (Laxmi Bai (Smt.) v. State of Chhattisgarh and others) opined as under :- “13. Section 164 of the Land Revenue Code provides for devolution of the interest of Bhumiswami on his death either passed by the inheritance, survivorship or bequest, as the case may be. The same is subject to personal law of the Bhoomiswami. Thus, the application under section 165 of the land Revenue Code, seeking permission of the Collector was ill advised and misconceived. The entire exercise done by the Collector, seeking a report from the Tehsildar and Sub Divisional Officer is void ab initio, as the same has no sanction of law. The same is subject to personal law of the Bhoomiswami. Thus, the application under section 165 of the land Revenue Code, seeking permission of the Collector was ill advised and misconceived. The entire exercise done by the Collector, seeking a report from the Tehsildar and Sub Divisional Officer is void ab initio, as the same has no sanction of law. Similarly, calling of the report inviting objections from the other persons also was a nullity. The observation of the authorities below that the petitioner may approach to the civil forum for redressal of her grievance has also been passed without authority of law. Thus, the application of the petitioner for permission to the Collector, at this stage, is not maintainable under section 165 of the Land Revenue Code.” 13. In the light of aforesaid, it is clear that when right of succession is sought to be enforced on the basis of devolution, it cannot be treated as a case of transfer and therefore, section 165 of the Code will have no application. The reliance is placed on the judgment of a Division Bench of this Court in Mulayam Singh (supra). In the said case, the appellants, who were brothers of respondents Budhuwa Chamar, got the land transferred in their names from the respondents without prior permission of the Collectors. It is not a case dealing with the right arising out of any Will. Thus, this judgment is of no help to the respondents. Similarly, judgment in Govind Vallabh Pant Grih Nirman Coop. Society (supra) does not deal with the provision of sections 164 and 165 of the Code. Judgment in Raheesh Khan (supra) makes it clear that Will which was executed has not been proved as per mandatory requirement of section 63 (c) of Hindu Succession Act, 1925. Thus, Court has not examined the question which is involved in the present matter. Thus, the judgments cited by Shri Jadon are of no assistance in the facts and circumstances of the present case. 14. In the light of aforesaid analysis, it is clear that Additional Commissioner and Board have erred in applying section 165 (7-b) of the Code in the present case. Present case, being a case based on will, section 164 will apply and section 165 (7-b) will have no application. 14. In the light of aforesaid analysis, it is clear that Additional Commissioner and Board have erred in applying section 165 (7-b) of the Code in the present case. Present case, being a case based on will, section 164 will apply and section 165 (7-b) will have no application. As analyzed above, the authorities below in Annexures P/1 and P/2 have erred in holding that Collector’s permission is required even in a case where the right is claimed by legal representative on devolution. To this extent the order is vulnerable. 15. On perusal of the Will, Additional Commissioner opined that the genuineness and correctness of the Will is also in dispute. He has raised doubts about execution of the Will in favour of Chhogi Lal. Additional Commissioner opined that after two years from the death of Chhogi Lal, the application for mutation is filed which creates doubt. All these questions are essentially questions of facts which needs to be proved in proper manner before the Court / authority of competent jurisdiction. Thus, on this aspect, I find no reason to interfere in present writ petition. Additional Commissioner has remitted the matter back to the Tahsildar with the direction to examine the matter minutely, by permitting the parties to lead evidence and after hearing pass appropriate orders on merits. In this regard I find no legal infirmity. 16. Resultantly, Annexures P/1 & P/2, to the extent section 165(7-b) is applied, are set aside. Impugned order, whereby matter is remitted back to Tahsildar Court is affirmed. It is made clear that if petitioners succeeds in proving the Will in their favour, the requirement of section 165(7-b) Will not be there. In other words, if genuineness or correctness of Will is established by the petitioners, section 165(7-b) of the Code cannot be made applicable against the petitioners. 17. Petition is partly allowed to the extent indicated above. No Costs.