JUDGMENT : 1. The present Second Appeal is directed against the judgment and order dated 25.11.2023 passed by the learned Additional District Judge, Narmada at Rajpipla in Regular Civil Appeal No.46/2021 as well as the judgment and order dated 30.10.2021 passed by the learned Principal Senior Civil Judge, Dediyapada in Regular Civil Suit No.7/2015. 2. The present Second Appeal has been preferred on following substantial questions of law, “(A) Whether both the Ld. Lower Courts erred holding that Will is within meaning of transfer? (B) Whether Section 73AA of the Land Revenue Code, apply to the registered Will by the deceased in favour of the inter family? (C) Whether Will which was registered before Sub Registrar under the Registration Act, without challenging the validity of the same, whether implementation can be withheld? (D) Whether Article 58 of the Limitation Act, would be applicable for declaratory suit on the basis of registered Will? (E) Whether defendants are barred by rejudicata once the Special Civil Suit No. 125 of 1998 was filed by them and dismissed? (F) Whether previous sanction under section 73AA of the Land Revenue Code, would be required when property bequeath by way of Will to family member only? (G) Whether finding recorded by the Ld. Trial Court without any evidence on record and on irrelevant and inadmissible evidence? (H) Whether both the Ld. Lower Courts have failed to consider the issue and record the findings without any evidence on record? (I) Whether findings recorded by both the Ld. Lower Courts have are perverse and misled and misunderstood the evidence on record?” 3. Heard learned advocate, Mr. Vijay Nangesh for the appellants. 4. Learned advocate for the appellants submitted that the appellants herein are the original plaintiffs and the respondents herein are the original defendants in the suit being Regular Civil Suit No.7/2015 preferred by the appellants, therefore for the sake of convenience, hereinafter they shall be referred to as per their original status in the suit. Learned advocate submitted that the dispute pertains to the land bearing Survey Nos.1, 8, 15, 42/2 pk., 151 and 156 situated in Village : Nivalda, Taluka : Dediyapada, District : Narmada as also House Nos.237 and 238 (hereinafter referred to as “the suit properties” for short). Learned advocate submitted that the dispute pertains to the land bearing Survey Nos.1, 8, 15, 42/2 pk., 151 and 156 situated in Village : Nivalda, Taluka : Dediyapada, District : Narmada as also House Nos.237 and 238 (hereinafter referred to as “the suit properties” for short). Learned advocate submitted that the aforesaid suit was filed by the appellants inter alia praying for declaration that the plaintiffs be declared a absolute owner and occupier of the suit properties and pass an order of mutation of their name in the revenue record as also for deletion of the names of the original defendants from the revenue record and also sought permanent injunction against the original defendants restraining the original defendants and/or their agents, servants etc. from entering into the suit properties as also from interfering their possession. Learned advocate submitted that however without considering the facts of the case and evidence available on record, the learned Civil Court has dismissed the suit, against which, Regular Civil Appeal was preferred challenging the same, however, the said appeal has also been dismissed by the learned Appellate Court and, hence, the present Second Appeal has been preferred challenging both judgment and orders on the aforesaid substantial questions of law. 5. Learned advocate submitted that the original plaintiffs and the original defendants are siblings and the father of the original plaintiffs was the agriculturist and was the owner of the suit properties. Learned advocate submitted that the father of the original plaintiffs has executed a “Will” on 15.05.1997 during his lifetime and thereby bequeathed the suit properties and immediately within a period of two months from the date of execution of the said Will, the father of the plaintiffs passed away and after the sad demise of the deceased, the original defendants have mutated their names in the revenue record, therefore, the aforesaid suit was preferred, which was not entertained by the learned Civil Judge, therefore, appeal had been preferred before the learned District Judge, who also confirmed the order of the learned Civil Judge and thereby dismissed the appeal preferred by the original plaintiffs. Learned advocate, however, submitted that rejection of the suit was solely on the count that there was delay in preferring the suit and second, there was specific prohibition as provided under Section 73AA of the Bombay Land Revenue Code (hereinafter referred to as “the Revenue Code” for short) as the suit properties is restricted tenure land and the suit properties can be transferred only after obtaining prior permission from the competent authority. Learned advocate submitted that in fact, the father of the original plaintiffs is tribal and agriculturist, therefore without obtaining prior permission from the competent authority, the suit properties cannot be transferred. Learned advocate submitted that in fact, the original defendants herein had filed suit in the year 1997 before the learned Civil Court, Dediyapada, which had not been entertained by the learned Civil Court at the relevant point of time and the said judgment and order had not been challenged by the original defendants before any higher forum, therefore, the findings and observations made by the learned Civil Court have attained finality, copy of said judgment and order was placed on record by the original plaintiffs at the time of leading evidence and if the Hon’ble Court would make a cursory glance upon the contents of the said order, in that event, it would be found out that at the time of deciding the suit, the learned Judge has given clear opinion about the maintainability and authenticity of the “Will” and the said document is part and parcel of the record, therefore, when the genuineness of the “Will” is not in dispute and when the suit properties are entrusted by the deceased by executing registered Will, in that event, the suit properties are required to be transferred in the name of the original plaintiffs as per the will and wish of late deceased, Abhesing. 6. Learned advocate, at this stage, has put reliance upon the decision of this Hon’ble Gauhati High Court in case of S.H.K. Nongrum Vs. Shri Bimalendu Das Gupta, reported in (1989) 2 Gauhati Law Reports 125 and submitted that the said decision is squarely applicable to the facts of the present case. It is, therefore, urged that the present Second Appeal may be allowed and relief as prayed for may be granted. 7. Shri Bimalendu Das Gupta, reported in (1989) 2 Gauhati Law Reports 125 and submitted that the said decision is squarely applicable to the facts of the present case. It is, therefore, urged that the present Second Appeal may be allowed and relief as prayed for may be granted. 7. Having heard learned advocate for the appellants and having gone through the material and evidence available on record including the impugned judgments and orders, it is found out that the dispute pertains to the suit properties, which have been bequeathed by the late Shri Abhesing in favour of his heirs by executing registered Will, however after the sad demise of the deceased, the original defendants are trying to grab the valuable land of the original plaintiffs and, hence, suit was preferred inter alia praying for declaration that the plaintiffs be declared a absolute owner and occupier of the suit properties and pass an order of mutation of their name in the revenue record as also for deletion of the names of the original defendants in the revenue record and also sought permanent injunction against the original defendants restraining the original defendants and/or their agents, servants etc. from entering into the suit properties as also from interfering their possession, which was dismissed by the learned Civil Judge, against which, Regular Civil Appeal was preferred before the learned District Judge, who also dismissed the said appeal, therefore, the present Second Appeal has been preferred assailing both judgment and orders on the substantial questions of law as stated above. 8. It is well settled that Second Appeal under Section 100 of Civil Procedure Code (hereinafter referred to as “CPC” for short) can only be entertained on substantial question of law. In H.P.Pyarejan Vs. Dasappa (Dead) by Lrs., reported in (2006)) 2 SCC 496, Hon'ble Apex Court has held as under :- "16. In our opinion, therefore, the judgment of the High Court suffers from serious infirmities. It suffers from the vice of exercise of jurisdiction which did not vest in the High Court under the law. Under Section 100 of the Code (as amended in 1976), the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. It suffers from the vice of exercise of jurisdiction which did not vest in the High Court under the law. Under Section 100 of the Code (as amended in 1976), the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not warranted if it involves reappreciation of evidence (see Panchugopal Barua v. Umesh Chandra Goswami [ (1997) 4 SCC 713 ] and Kshitish Chandra Purkait v. Santosh Kumar Purkait [ (1997) 5 SCC 438 ] ). The High Court has not even discussed any evidence. No basic finding of fact recorded by the courts below has been reversed much less any reason assigned for taking a view contrary to that taken by the courts below. The finding on the question of readiness and willingness to perform the contract which is a mixed question of law and fact has been upset. It is statutorily provided by Section 16(1)(c) of the Act that to succeed in a suit for specific performance of a contract the plaintiff shall aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than the terms the performance of which has been prevented or waived by the defendant." 9. In yet another judgment in case of Ram Prasad Rajak Vs. Nand Kumar and Bros. & Anr., reported in (1998) 6 SCC 748 , the Hon'ble Apex Court has held that "Once the proceeding in the High Court is treated as a Second Appeal under Section 100 of the CPC, the restrictions prescribed in the said Section would come into play. The High Court could and ought to have dealt with the matter as a Second Appeal and found out whether a substantial question of law arose for consideration. Unless there was a substantial question of law, the High Court had no jurisdiction to entertain the Second Appeal and consider the merits." 10. In the case of Chandrabhan (Decesaed) through LRs Vs. Saraswati, reported in 2022 (13) Scale 777 , the Hon'ble Apex Court in Paragraph No.33 has summarized principles relating to Second Appeal under Section 100 of the CPC as under :- "33. In the case of Chandrabhan (Decesaed) through LRs Vs. Saraswati, reported in 2022 (13) Scale 777 , the Hon'ble Apex Court in Paragraph No.33 has summarized principles relating to Second Appeal under Section 100 of the CPC as under :- "33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 11. In Second Appeal under Section 100 of CPC in view of judgment of Chandrabhan (supra), three conditions have been recognized to disturb finding of facts viz. The courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. Thus, decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 12. In background of above settled legal position, if we go through case on hand, as can be seen from the documents available on record that the suit properties are restricted tenure land and there is specific bar of Section 73AA of the Revenue Code, therefore, without obtaining prior permission from the competent authority, the suit properties cannot be transferred to others, that too, on the strength of the Will, the suit properties cannot be transferred as it is ancestral properties, wherein all the heirs are having equal rights. However, it is an admitted position of fact that the said “Will” had been executed by the deceased on 15.05.1997 and within two months from the date of execution of the said Will, he passed away on 12.06.1997, however thereafter in the year 2015, the aforesaid suit had been preferred, that too, after much delay. Not only that, the original plaintiffs have not taken care to obtain probate from the competent civil court on the strength of the “Will” and all these facts have been considered by the learned Courts and passed impugned orders. 13. Not only that, the original plaintiffs have not taken care to obtain probate from the competent civil court on the strength of the “Will” and all these facts have been considered by the learned Courts and passed impugned orders. 13. So far as the contention raised by learned advocate for the appellants with regard to restriction over the land as provided under Section 73AA of the Revenue Code, which prohibits transfer of property, I would like to put reliance upon the decision of this Hon’ble Court in case of Shamjibhai Keshavjibhai Kansagra (Patel) Vs. Principal Secretary, Revenue Department (Appeals), reported in 2011 (0) AIR (Guj) 55 : 2010 (0) GUJHC 27738, wherein this Hon’ble Court has succinctly observed in Paragraph Nos.20 to 24 as under, “20. In the first case, i.e. LPA No. 1522/ 2010, the matter relates to restriction on 'transfer of occupancies'. It did not relate to transfer of property as such. The word 'occupant' as defined u/Sec. 3(16) of the Code means a holder in actual possession of unlimited land, other than a tenant: provided that where the holder in actual possession is tenant, the landlord or superior landlord, as the case may be, shall be deemed to be the occupant. The word 'occupier' has been defined u/Sec.3(17) of the Code means a portion of land held by an occupant. The meaning of 'to occupancy land' as defined u/Sec. 3(18) means to possess or take possession of land. Thus, it will be evident that there is a restriction u/Sec.73AA of the Code to transfer the occupancy of a tribal to a non-tribal, which means the possession of the land cannot be handed over. 21. So far as the second case of appellant- Babubhai Manchhabhai Bharvad is concerned, we have noticed that transfer of interest of agricultural land to a non-agriculturist is barred. Under clause (a) of Section 63(1) the interest cannot be transferred. Even the interest of agricultural land cannot be mortgaged under clause (b) of Sec. 63(1). If such interest cannot be transferred or mortgaged, irrespective of right of the landholder an erstwhile tenant, the question of transfer interest by will does not arise. 22. The question arises as to whether any living person can execute a document in contravention of any law. The answer is always in negative. If law do hot permit and there is a prohibition to do. 22. The question arises as to whether any living person can execute a document in contravention of any law. The answer is always in negative. If law do hot permit and there is a prohibition to do. certain thing, or there is a prohibition to do Certain act except in certain manner, any document or agreement or anything in contravention to such provision of law, is illegal and invalid. During the lifetime of a living person, if the person is under restriction to execute certain document and thereby has no right to transfer his occupancy or no right to transfer his interest under one or other Act, he cannot execute any document, including a will showing his wish and intention in regard to such property in contravention of such law. Therefore, a tribal even cannot wish nor can show his intention to transfer his right of occupancy to a tribal or nontribal, there being restriction u/Sec. 73AA of the Bombay Land Revenue Code. Similarly, a tenant-owner of agricultural land cannot wish nor can show his intention to transfer his right on agricultural land to a non-agriculturist by executing a will in contravention of Sec.63 of the Bombay Tenancy Act, except in the manner prescribed thereunder. Any such wish and intention shown by testator during his lifetime, being in contravention of law, as noticed above, is invalid and can be ignored. 23. Somewhat similar matter fell for consideration before a Division Bench of this Court in the case of Rajenbhai Baldevbhai Shah (AIR 2010 (NOC) 433 (Guj)) (supra). Under Sec.43, there is a restriction on transfer of land purchased or sold under the Act without previous sanction of the Collector and accepting consideration of payment of such amount as the State Government may determine. Under the said provision, neither land nor any interest therein can be partitioned without the previous sanction of the Collector. In the case of Rajenbhai Baldevbhai Shah (supra) a will was executed by the land holder in favour of the legatee, who claimed recognition of his right, having bequest under will. Having noticed the restriction on transfer of land and interest therein, as imposed u/Sec. 43 and Sec. 63 of the Bombay Tenancy Act, the Court held as follows:- "8. In the case of Rajenbhai Baldevbhai Shah (supra) a will was executed by the land holder in favour of the legatee, who claimed recognition of his right, having bequest under will. Having noticed the restriction on transfer of land and interest therein, as imposed u/Sec. 43 and Sec. 63 of the Bombay Tenancy Act, the Court held as follows:- "8. Section 43 of the Bombay Tenancy Act uses same expression 'assignment', and in our view, the same meaning attributed by the Apex Court to the word 'assignment' be attributed to Section 43 as well. We find no reason to ascribe a different meaning to that word in the context of Bombay Tenancy Act. We also hold that when there is a disposition of rights under a Will, though operates posthumously, is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. If Section 43 of the Bombay Tenancy Act does not apply in such a situation then the tenant could assign his interest to strangers, which will completely negatives the object and purpose of Section 43 and defeat the intents of the legislature. We, therefore, hold that the word 'assignment' in Section 43 would take in a 'Will' also and is governed by the statutory provisions and the same shall be parted, only with the previous sanction of the Collector. Statutory tenancies, therefore, cannot be devised by 'Will', nor do they become subject to the rules of intestacy. We, therefore, answer the reference accordingly. "9. ....Section 63 unlike Section 43 of the Act does not contain the word 'assignment'. Contention was raised that since no such word 'assignment' occurs in Section 63, there is no restriction in the matter of transfer of agricultural lands to non-agriculturist through a testamentary disposition. Before examining the contention, it may be mentioned the word 'Will' as such is not defined under the Bombay Tenancy Act, but Section 2(h) of the Indian Succession Act defines the word 'Will' to mean a legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. A Will, therefore, is dependent upon the testator's death for its vigour and effect and is liable to be revoked or altered during his lifetime. A Will, therefore, is dependent upon the testator's death for its vigour and effect and is liable to be revoked or altered during his lifetime. Question is while he is alive, can he make an illegal declaration through a 'Will' so as to defeat the object and purpose of the legislation. Will not such a declaration be opposed to public policy being repugnant to the public interest. Policy of the Act is discernible from the preamble, marginal note, title and Sections 43 and 63 and other related provisions and the Directive Principles of State Policy. Where the legislature deem it expedient to fetter the privilege of free alienation, the prohibition founded upon conditions of public interest, must be treated as obsolete. General rule is that property of any kind may be transferred by way of gift or Will, sale, etc. unless non-transferability is barred due to existence of any law. Willian's law relating to Will, Sixth Edition, Volume I, page 60 states that the power of disposition by Will, is not at the testators caprice, but extends only to the creation of those interests, which are recognized by law. Theobold on Wills, Fourth Edition, Pg.629, says that a condition which is illegal or contrary to the policy of the law is void. Tenancy Act has not authorised parting of agricultural land to a non-agriculturist without the permission of the authorised officer, therefore, if it is permitted, through a testamentary disposition, it will be defeating the very soul of the legislation, which cannot be permitted. We wonder when testator statutorily debarred from transferring the agricultural lands to a non-agriculturist during his lifetime, then how he can be permitted to make a declaration of his intention to transfer agricultural land to a non-agriculturist to be operative after his death. Such attempt of testator, in our view, is clearly against the public policy and would defeat the object and purpose of the Tenancy Act. Section 30 of the Hindu Succession Act acknowledges testamentary succession as a mode of succession, but not, by defeating the purpose and object of any legislation, like Tenancy Law. The legislative intent that an agricultural land shall not go into the hands of a non-agriculturist is manifest in Section 63 of the Bombay Tenancy Act. Section 30 of the Hindu Succession Act acknowledges testamentary succession as a mode of succession, but not, by defeating the purpose and object of any legislation, like Tenancy Law. The legislative intent that an agricultural land shall not go into the hands of a non-agriculturist is manifest in Section 63 of the Bombay Tenancy Act. In a country like ours where agriculture is the main source of livelihood, the restriction imposed in Section 63, cannot be given a goby, by a devise. Obvious purpose of Section 63, is to prevent indiscriminate conversion of agricultural lands for non agricultural purpose and that provision strengthens the presumption that agricultural land is not to be used as per the holders caprice or sweet-will. "10. We have noticed, that the title of Chapter V, and the marginal note to Section 63 restricts and bars the transfer of agricultural land to non-agriculturist, which also gives us a clue, when we interpret that Section. Object, title and marginal note indicates the underlying purpose and policy of the legislation. Underlying purpose and objects of the Tenancy Act is not to transfer the agricultural land to a non-agriculturist but will be frustrated if permitted by a testamentary disposition. Such a devise, is void, if it defeats the purpose of a legislation for an illegal purpose." 24. Therefore, even if it is accepted that the transfer under the Transfer of Property Act is a conveyance of an existing property by one living person to another, and will does not involve any transfer, but if a will is executed in contravention of law, it is always open to the authority to ignore such will and may refuse to mutate the name on the basis of such will. 14. It is found out from the aforesaid decision that a very pertinent issue was decided by this Hon’ble Court as to whether any living person can execute a document in contravention of any law and the answer is given in negative. However it is also categorically observed that if law does not permit or there is a prohibition to do a particular act in certain manner to execute any document and/or agreement in contravention of provision of law, would be treated as illegal and invalid. 15. However it is also categorically observed that if law does not permit or there is a prohibition to do a particular act in certain manner to execute any document and/or agreement in contravention of provision of law, would be treated as illegal and invalid. 15. Further, much emphasis is put upon the provision of Section 73AA of the Revenue Code, relevant portion of which is quoted as under, "73AA Restriction on transfer of occupancies of tribals to tribals or non-tribals.- (1) Notwithstanding anything contained in section 73, an occupancy of a person belonging to any of the Scheduled Tribes hereafter in this section and in section 73AB referred to as 'the tribal' shall not be transferred to any person without the previous sanction of the Collector. (2) The previous sanction of the Collector under sub-section (1) may be given in such circumstances and subject to such conditions as may be prescribed." 16. A bare perusal of the aforesaid provision clearly goes on to show there is a restriction on 'transfer of occupancy' of land of tribals by any mode, whether sale, gift, exchange, mortgage, lease or assignment or even under a will. Therefore, the present case is squarely covered by the aforesaid decision. 17. Coming back to the present case, at the cost of repetition, it is required to be noted that the appellants herein are claiming right on the strength of the registered “Will” executed by the deceased but before claiming any right over the suit properties, the appellants ought to have obtained probate from the competent civil court, which they have not obtained. Further in view of the guidelines enunciated in the aforesaid decision in case of Shamjibhai Keshavjibhai Kansagra (supra), it is clear that the restricted property cannot be transferred on the strength of the “Will” executed. In nutshell, appellants were was miserably failed to prove their case, which led learned Trial Court and learned Appellate Court to believe case of the plaintiffs. 18. The Court has also gone through the decision relied upon by the learned advocate for the appellants. There cannot be any dispute with regard to the ratio laid down in the same. However, in the facts and circumstances of the case on hand, the said decisions would be of no help to the present appellants at this juncture. 19. 18. The Court has also gone through the decision relied upon by the learned advocate for the appellants. There cannot be any dispute with regard to the ratio laid down in the same. However, in the facts and circumstances of the case on hand, the said decisions would be of no help to the present appellants at this juncture. 19. For the reasons stated above, none of the questions can be said to be substantial question of law, which needs to be decided in favour of the appellants – original plaintiffs. Over and above that, there is no perversity found in the reasoning assigned by both the learned Courts while passing impugned orders. Therefore, the present Second Appeal stands dismissed at admission stage. 20. Connected Civil Application stands disposed of accordingly.