- (1.)THIS revision application has been filed against the order of the Divisional Commissioner Kotah dated 31. 3. 53 passed in a second appeal.
(2.)THE facts of the case in brief are, that a khata of 41 bighas and 9 biswas of land in village Mandol, tehsil Baran was in the name of one Mst. Motial. She mutated this land with the consent of her reversioners as under. 31 bighas and 9 biswas to Mst. Ramchandri her daughter vide intkal No. 1400 and 10 bighas to Shri Lal her reversioner vide Intkal No. 1110. Some time thereafter Mst. Ramchandri approached the patwari of the village complaining that Shrilal had taken unlawful possession of 9 bighas and 16 biswas of her land consisting of 31 bighas and 9 biswas. THE patwari thereon opened Intkal No, 1976. Shrilal also, on his part lodged a complaint that Mst. Ramchandri had performed Nata i. e. to say she had remarried and as such she 113 longer remained eligible to hold the khata mutated to her. Intkal No. 1980 was opened on this application. THE acting Tehsildar on 23. 6. 49 passed orders on both the Intkals THE order on Intkal No. 1980 which relates to Shrilal's application states that since Mst. Ramchandri has remarried and that there are other claimants of this holding a file may be opened, but thereafter on 20. 12. 49 another order was passed on this very Intkal that since Shrilal has not appeared in the court, the application be dismissed for default. THE order relating to Mst. Ramchandri's Intkal No. 1976 states that since she has remarried, she is not entitled to the land in question and her application be dismissed. Mst. Ramchandri went in first appeal to Collector Kotah but it was transferred to the S. D. O. Baran who heard it and accepted the appeal and ordered that she may be put in possession of 9 bighas and 7 biswas of land forcibly taken possession of by Shrilal. Shrilal went in second appeal to the Divisional Commissioner Kotah who ordered that the holding be entered in the name of Mst. Motia, the mother of Mst. Ramchandri for her life time and accepted the appeal. It is against this order that Mst. Ramchandri has come in revision before the Board.
Counsel for the parties was heard. The main argument of the counsel for the applicant are (i) that when this holding was once mutated in her client's name when she was married and that her husband Bherunlal Dhakar was alive at that time,the reversioners could no object to the mutation on account of her subsequent remarriage; (ii) that the lower court has committed mistake in mutating the khata in the name of Mst. Motia.

We have carefully considered the arguments of the parties and have also gone through the record of the lower court. The order on lntkal Nos. 1110 and 1400 make it quite clear that 31 bighas and 9 biswas of land was mutated in the name of Mst. Ramchandri with the consent of all the reversioners of Mst. Motia. Therefore this act of Mst. Motia amounts to a surrender under cl. 4 of sec. 179 of the Hindu Law as it was a gift of her property with the consent of the next reversioners. The question now arises; can such a gift or surrender be revoked by remarriage of the donee under sec. 46 (12) of the Circular No. 3 of the covenanting Kotah State. The section states that if a woman or a daughter who has obtained the khata by succession having no issue dies or surrenders her khata or remarries, the khata will revert to the next reversioners. But in case the woman khate-dar has obtained khata by means other than succession, the right of succession will devolve upon her husband and if the husband is not living, to his reversioners, and in the case of a gift the khata will revert to the donor or his relations provided she has no heir. Thus from the language of this section it is quite clear that it is only that khata which has been got by a woman khatedar by succession which can be revoked and transferred to the next reversioners on her remarriage and not the khata which has not been obtained by her by gift. Therefore this argument of the counsel of the non-applicant does not stand. This view, as laid down in the above referred section of Circular No. 3 of the covenanting State of Kotah is supported by Hindu Law also in Nobokishre vs. Hari Nath 1884 (10) Calcutta 1102. In this case the Calcutta High Court held that gift of the entire estate by a widow to another person with the consent of the whole body of the next reversioners may be supported as a surrender under section 197. Such a gift in the view of that court, accounted to affect in two transactions namely (i) a surrender in favour of the next reversioners which would vest the estate in them and (ii) a gift by them of the estate to the other person. The facts of this case are all on fours with this case. Mst. Motia had made a gift of the land in question to her daughter with the consent of Shrilal the non-applicant and other reversioner. Therefore, he has no right to agitate in this case on account of her remarriage the transaction being a gift and Mst. Ramchandri had not obtained it by way of succession.

We, therefore, accept the application and set aside the order of the lower court and order that 31 bighas and 9 biswas of land be allowed to remain in the name of Mst. Ramchandri and she may be put in possession of 9 bighas and 16 biswas land which Shrilal had forcibly taken possession of from her. .