- (1.) THIS is an appeal against the order dated 6.8.51 passed by the Additional Commissioner, Kotah Division.
(2.) THE facts of the case in brief are that the respondent holds some land on chouth batia right i. e. to say on favoured assessment in village Jakhmound in Tehsil Taled. She applied to Collector, Bundi for sanctioning the adoption of Mod Singh as her son and also transferring this land in his name. THE Collector rejected this request on the ground that sanction of adoption in the case of chauth batia was not essential, and the other request for mutation was against the provisions of sec. 87 of the Bundi Tenancy Act. Being displeased with this she preferred an appeal to commissioner, Kotah. THE Additional Commissioner who heard this appeal, accepted her request for mutation of the land in favour of Mod Singh. THE appellant claiming to be the nearest relation of the 1st full owner of this land Bhawani Singh and consequently a reversioner, being displeased with this order has preferred this second appeal. The chief argument of the counsel for the appellant is that the Additional Commissioner has based his judgment on the fact that the widow of Bhawani Singh, Mst. Pratap Bai has surrendered her right of chauth batia, therefore there is nothing to debar her from transferring this property to Mod Singh. But the Additional Commissioner failed to consider the fact that the widow inherited only a limited estate according to sec 168 of the Hindu Law and therefore she had no right to transfer the right of chauth batia. The respondent replied that she can forego the right of chauth batia and thus she can alienate the property in favour of any person like other khatedars. I have given careful consideration to the arguments of the parties. It is true that in the case of khatedar permission for transfer of his khata under sec. 19 of the Bundi Tenancy Act should not be withheld when no circumstance as prescribed in its sec. 22 exist. In the present case, the respondent is alleged to have acquired this right by foregoing her right of chauth batia. But the appellant has questioned this right of foregoing of the respondent on the ground that she takes only limited interest in this land. It is to be examined as to how far this objection bids vaild. It is an admitted fact that Mst. Partab Bai inherited this property from her husband Bhawani Singh. Thus this property has been inherited by a female from a male. In accordance with sec. 168 of the Hindu Law, therefore, she takes only a limited estate in the property inherited by her i.e. to say she is only a limited heir to the property according to sec. 174 of the Hindu Law. According to sec. 176 of the same Law a limited heir or a widow is not a tenant for life but is the owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The power to waive the restrictions mentioned above have been given to a limited heir under conditions stated in sec. 178 of the Hindu Law. These conditions of alienation are not fulfilled in this case, as she wants to alienate this land in favour of Mod Singh simply because she wants to adopt him as her son. When she has limited powers in respect of disposal of the land she can certainly have no powers to forego the right of chauth batia which is a title of favoured assessment of the land. When she cannot forego this right she cannot become a khatedar and consequently permission for transferring this land cannot be given under sec. 19 of the Bundi Tenancy Act. The Additional Commissioner has, therefore erred in giving this permission. I would, therefore, subject to the concurrence of my learned colleague, upset the judgment of the Additional Commissioner and uphold that passed by the Collector, Bundi. Shri Hetudan Ujjwal - 1 concur. ;