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8. Mr. Patel has further submitted that even the Revenue Department, Government of Gujarat has issued a Circular on 13.02.1989 interpreting - explaining the scope of the word 'assignment' as used under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 wherein it was stated that if the land is transferred by inheritance, insolvency or in public auction, provisions contained in Section 43 would not apply. It was also made very clear that if transfer is effected by will, it would not be considered as the breach of the provisions contained in Section 43 of the Act. Mr. Patel has, therefore, submitted that the impugned Circular issued by the Department is contrary to the earlier Circular and while issuing the impugned Circular, no reference of the earlier Circular has been given by the respondent authorities.

15. Mr. Hasit Dave, learned A.G.P. appearing for the respondents, on the other hand, has submitted that the State Government is quite justified in issuing the impugned Circular whereby a person who is not an agriculturist cannot become an owner of the agricultural land simply because under the Will, an agricultural land is assigned to him. He has further submitted that it is nothing but a device under which the real object of the Tenancy Act has been given go-bye. Though in the memo of petition, it is alleged that the petitioner and the testator had family relations and had mutual love and affection for each other's family, it is unbelievable on the face of it as the petitioner is from the Muslim community and the testator was from Hindu community. Except the bare words in the petition, there is no documentary evidence to the effect that there was any family relation between the petitioner and the testator. Mr. Dave has further submitted that the testamentary disposition cannot be effected to a stranger to a family. In support of his submission, he relied on the decision of the Hon'ble Supreme Court in the case of SANGAPPA KALYANAPPA BANGI (DEAD) THROUGH LRS. V. LAND TRIBUNAL, JAMKHANDI AND ORS., (1998) 7 SUPREME COURT CASES 294 wherein, while dealing with the provisions contained in Sections 21 & 24 of Karnataka Land Reforms Act, 1961, the Hon'ble Supreme Court has held that the object of Section 21 is not to allow strangers to the family of the tenant to come upon land. The tenanted land is not allowed to be sub-let, i.e., to pass to the hands of a stranger nor any kind of assignment taking place in respect of the lease held. If the tenant could assign his interest, strangers can come upon the land and, therefore, the expression "assignment" will have to be given such meaning as to promote the object of enactment. Therefore, the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship. As to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. When it is possible for the tenant to pass the property to those who may not necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event, it must be taken that a devise under a Will will also amount to an assignment and, therefore, be not valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21, it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. The Hon'ble Supreme Court has, however, made it clear that it is true that meaning of heir can include the descendant and other persons related by legitimate kinship or otherwise who may be covered by a Will, but the true question to be decided in this case is if a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to confine the rights of tenancy only to those known under law as heirs and, therefore, assignment to strangers is barred.

19. Based on the aforesaid judgments, Mr. Dave has submitted that even under the Tenancy Act also, the meaning of the word 'transfer' or 'assign' given in the Transfer of Property Act should not be restricted and it would also cover the testamentary disposition which may be hit by Section 43 of the Tenancy Act. He has, therefore, submitted that the respondent authorities are justified in not granting certification of the entry in question on the basis of the Circular issued by the State Government.