Full Judgment Text
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PETITIONER:
BRAHMVART SANATHAN DHARAM MAHAMANDAL, KANPUR & ORS.
Vs.
RESPONDENT:
PREM KUMAR & ORS.
DATE OF JUDGMENT10/05/1985
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
REDDY, O. CHINNAPPA (J)
CITATION:
1985 AIR 1102 1985 SCR Supl. (1) 718
1985 SCC (3) 350 1985 SCALE (1)1058
ACT:
Hindu Law-Right of the limited owners to alienate the
joint estate of a propositus during their life time after
division of the property in equal shares and coming into
possession thereof, without the consent of the other co-
owners-Consequences of the alienations made-Whether passes
title to the successive alienness entitling them to
protection under section 43 and 51 of the Transfer of
Property Act-Doctrine of "feeding the grant by estoppel",
and "Deemed consent"- Supreme Court will not, in an appeal
interfere with the discretionary power of the High Court to
evaluate the evidence.
HEADNOTE:
One Lala Gurdin, who had acquired extensive landed
property in Kanpur died on December 10, 1861 leaving behind
his widow Smt. Amrit Kuer and three daughters: Smt. Hazarao
Kuer from his predeceased wife, and Smt. Mewa Kuer and Smt.
Prago Kuer from Smt. Amrit Kuer. After the death of Gurdin
his entire estate came into the hands of his widow Smt.
Amrit Kuer and after her death on August 1,1880, the three
daughters of Lala Gurdin succeeded to the estate left by
Smt. Amrit Kuer, as limited owners. They divided the
property amongst themselves, each coming into possession of
one-third share. When Smt. Prago Kuer died on July 8, 1907
the estate remained with the two surviving daughters. When
Smt. Hazaro Kuer died on January 24, 1914 the estate
remained in possession of Smt. Mewa Kuer, the last surviving
daughter. She also died on June 14,1923.
During their life time the three daughters had been
making various alienations of the property that fell to
their exclusive share. Amongst a number of alienations in
favour of different persons at different times, three sale
deeds dated July 27,1901; July 17, 1914 and October 19,1915
are the subject matter of the appeals and the property
covered by the 1901 and 1914 sale deeds are in possession of
the appellants trust while the properties covered by the
1915 sale deeds are in the possession of Defendants 4 & 5 of
Suit No. 25 of 1935. The 1914 and 1915 sale deeds were
jointly executed by Smt. Mewa Kuer and her son Ram Dayal.
After the death of Smt. Mewa Kuer in 1923, her
surviving reversioners sought to challenge the various
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alienations made by the limited owners, some by Smt. Amrit
Kuer and the others made by the daughters of Lala Gurdin by
way of two Suits Nos. 25 of 1935 filed by the two sons of
Smt. Hazaro Kuer and Suit No. 34 of 1935 filed by Madho
Dayal son of Ram Dayal, on the
719
allegations (i) that there was no legal or pressing
necessity for the transfers; (ii) that transfer by one of
the daughters without the consent of the remaining daughters
was void ab initio and no title passed on to the
transferees; and (iii) transferees from the limited owners
themselves had no valid title and so they could not pass a
better title to others and thus those transfers were also
bad.
The suits were contested by the transferees in
possession seeking protection of section 43 of the Transfer
of Property Act on the equitable principle feeding the Grant
by estoppel in as much as even if there was any defect in
the of title Mewa Kuer, the same has ceased when her two
other sisters died and she become the sale Survivor.
The Additional Civil Judge found that, while sale deeds
of 1914 and 1915 were for legal necessity as they had been
executed by Smt. Mewa Kuer when her two sisters had died,
the sale deed dated 27th July, 1901 was also for legal
necessity but as it was executed without the consent of the
other two daughters it was invalid and not binding on the
plaintiffs-respondent. Consequently the Trial Court
dismissed Suit No. 25 of 1935 in respect of the sale deeds
of 1914 and 1915, and partly decreed the suit pertaining to
1901 sale deed in view of the provisions of section 51 of
the Transfer of Property Act in as much as these defendants-
appellants had made valuable constructions as bona fide
purchasers and they were entitled to the market value of the
constructions. Suit No 34 of 1935 was also partly decreed
and partly dismissed. In the appeals filed by the present
respondents-plaintiffs and after perusing the cross
objections filed by the present defendants-appellants, the
High Court reversed the finding of the trial court with
regard to sale deeds of 1914 and 1915 held that they were
not for legal and pressing need; and while confirming the
finding of the trial court with regard to sale deeds dated
July 27, 1901 further held that the present plaintiffs-
respondents should be given an opportunity to make an
election under section 51 of the Transfer of Property Act,
as to whether they would like to pay the compensation for
the superstructures standing on the land in question or to
sell their share in the land. Consequently, the High Court
allowed the appeals of the plaintiffs-respondents in part
and remanded the case to the trial court to afford an
opportunity to the plaintiff to make election under section
51 of the Transfer of Property Act. It was further held that
the sale deeds of 1914 and 1915 being not for legal
necessity the subsequent transfers made by the transferees
of Mewa Kuer were bad. Hence the appeals by certificate.
Allowing the appeals in part, the Court
^
HELD 1.1 If a Hindu dies leaving behind two widows they
succeed as joint tenants with a right of survivorship. They
are entitled to obtain partition of the separate portions of
property so that each may enjoy her equal share of the
income accruing therefrom. Each can deal as she pleases with
her own life interest but she cannot alienate any part of
the corpus of estate by gift or will so as to prejudice the
right of survivorship or a future reversioner. If they act
together they can burden the reversion with any debts owing
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to legal necessity but one of them acting without the
authority of the other cannot prejudice the
720
right of servivorship by alienating any part of the estate.
[728 G-H]
1.2 The mere fact of partition between the two while it
gives each a right to fruits of separate estate assigned to
her, it does not imply a right to prejudice the claim of the
survivor to enjoy full fruits of the property during her
life time. What is applicable to co-widows is equally
applicable to the case of daughters. No distinction can be
made on that account. [726 C-D, 729 A-B]
Gauri Nath Kakaji v. Mt. Gaya Kuer, [1928] P.C. 251
followed.
Appalasuri v. Kannamma, 49 M.L.J. 479 approved.
2.1 The transfer made by one daughter without the
consent of the other is only voidable at the instance of the
other co-limited owners or at the instance of the
reversioners. [729 D-E]
2.2 Here, the alienations made by the daughters
separately to different persons was never challenged by the
other daughters. Even the reversioners did not challenge
those alienations during the life time of their mothers and
they sought to challenge the alienations long after the
death of the last limited owner Smt. Mewa Kuer in 1923 and
therefore, even if the partition between the daughters had
no effect on the reversion it can safely be presumed that
the transfer made by one of the daughters of the property
exclusively in her possession had the consent of the other.
Further in any case Smt. Mewa Kuer after the death of her
two sisters came into exclusive possession of the entire
estate left by Smt. Amrit Kuer, widow of Lala Gurdin.
Therefore, the transferees would be entitled to the
protection of section 43 of the Transfer of Property Act
which substantially amounts to satisfying the equitable
principle of ’feeding the grant by estoppel’. [729 B-C, D-E]
2.3 In view of the fact that the trust has made
valuable constructions involving a cost of 5 to 6 lakh
rupees of the college building, the principal’s quarters,
teacher’s quarters, hostel, library, dispensary etc. it will
be inequitable in the circumstances of the case to ask the
appellants to pay the present market value of the land. The
acceptance of the amount by the plaintiffs respondents as
determined by the trial court will itself amount to making a
choice within the meaning of section 51 of the Transfer of
Property Act. From the materials on record and the attending
circumstances it is clear that the reversioners were neither
in a position to pay for the improvements nor inclined to do
so and this is why they accepted the amount determined by
the trial court. Therefore, the High Court was not justified
in remanding the case to the trial court to afford another
opportunity to the plaintiffs to make a fresh choice. [930
B-D]
3. What quantum of evidence will satisfy a particular
court to come to a conclusion is entirely in the discretion
of the Court, and therefore, the finding of the High Court
with the regard to the two sale deeds of 1914 and 1915
cannot be interfered with. [930 E-F]
721
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 636-639
of 1971.
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From the Judgment and Order dated 14.5.1963 of the
Allahabad High Court in F.A. Nos. 239/1945, 171/1946,
239/1945, and 171/46 respectively.
V.K.S. Chaudhury, V.V. Misra. S.S. Khanduja, A.S.
Pundir, Dhirendrajit Singh, Mahfooz Khan and Y.P. Dhingra
for the Appellants, in C.A. Nos. 636-37 of 1971.
V.K.S. Chaudhury and B.P. Maheshwari for the Appellants
in C.A. Nos. 638-39 of 1971.
Vinoo Bhagat for the Lrs. of Appellant No. 1 in C.A.
Nos. 638-39 of 1971.
J.P. Goyal, V.K. Verma, Rajash, Raghunath Singh, M.P.
Jha, and T.C. Sharma for the Respondents.
The Judgment of the Court was delivered by
Misra J. These appeals by certificate are directed
against the common judgment and order of the High Court of
Judicature at Allahabad dated May 14, 1963. As the appeals
raise common questions of fact and law they are being
disposed of by a common judgment.
The circumstances leading up to these appeals are as
follows. One Lala Gurdin acquired considerable landed
property in villages Patara, Mubarakpur Lata, Madanpur,
Gosra and Jeora Nawabganj in Kanpur. He had no male issue.
He died on December 10, 1861 leaving behind his widow Smt.
Amrit Kuer and three daughters: Smt. Hazaro Kuer from his
predeceased wife, and Smt. Mewa Kuer and Smt. Prago Kuer
from Smt. Amrit Kuer. After the death of Gurdin his entire
estate came into the hands of his widow, Smt. Amrit Kuer.
Amrit Kuer also died on August 1, 1880. During her life time
she made certain alienations but those alienations are not
relevant in the present appeals. After her death the three
daughters of Lala Gurdin succeeded to the estate left by
Smt. Amrit Kuer, as limited owners. Soon after the
succession the three daughters divided the property amongst
themselves and they came in possession of
722
one-third share each. When Smt. Prago Kuer, one of them,
died on July 8, 1907 the estate remained with the two
surviving daughters. When Smt. Hazaro Kuer, the other
daughter, died on January 24, 1914 the estate remained in
possession of Smt. Mewa Kuer, the last surviving daughter.
She also died on June 14, 1923.
During their life time the three daughters had been
making various alienations of the property that fell to
their exclusive share. Smt. Mewa Kuer also made a number of
alienations in favour of different persons at different
times. We are concerned in the present appeals with sale
deeds dated July 27, 1901; July 17, 1914 and October 19,
1915. The sale deed dated July 27, 1901 was executed by Smt.
Mewa Kuer to one Ram Narain in respect of the entire Mahal
Mewa Kuer and 2 anna 8 pie share in Mahal Katri. Ram
Narain’s successors in their turn sold the suit property by
means of two sale deeds one dated July 14, 1919 in favour of
Rai Sahib Lala Gopi Nath who is dead and is represented by
defendants 19 to 23 in suit No. 25 of 1935 and the other
dated January 2, 1920 in favour of Brahmvart Sanathan Dharam
Mahamandal, Kanpur, hereinafter referred to as the trust,
and arrayed as defendant No. 8 in suit No. 25 of 1935.
Smt. Mewa Kuer further executed a sale deed on July 17,
1914 in favour of two brothers, Kundan Lal Tiwari and
Balbhadar Tiwari, hereinafter referred to as the Tiwari
brothers, in respect of nine specific plots in Mahal Hazaro
Kuer. Ram Dayal son of Smt. Mewa Kuar also joined Smt. Mewa
Kuer in the execution of this sale deed. Tiwari brothers in
their turn sold some of the property to Gopi Nath on
February 21, 1920. Tiwari brothers also executed a gift deed
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dated October 12,1919 in respect of 8 bighas and odd
pertaining to Mahal Prago Kuer and 5 bighas and 16 biswas in
Mahal Hazaro Kuer to the aforesaid trust. Smt. Mewa Kuer and
Ram Dayal again executed a sale deed dated October 19, 1915
in respect of 8 anna share in Mahal Prago Kuer and one anna
4 pie share in Mahal Katri to defendants 4 and 5 in suit No.
25 of 1935.
After the death of Smt. Mewa Kuer, the last surviving
daughter, on July 14, 1923 the succession opened in favour
of daughters’ sons of Lala Gurdin, Maharaj Bahadur and Bijay
Bahadur, the sons of Smt. Hazaro Kuer, and Ram Dayal the son
of Smt. Mewa Kuer. Ram Dayal also died in 1931 leaving
behind his son Madho Dayal. After
723
the death of Ram Dayal the reversioners sought to challenge
the various alienations made by the limited owners, some by
Smt. Amrit Kuer and the others made by the daughters of Lala
Gurdin. Suit No. 25 of 1935 was filed by Kunwar Maharaj
Bahadur and Kunwar Bijay Bahadur along with their financier
Sukhraj Bux Singh for possession in respect of their two
third share of the property, for demolition of the valuable
constructions raised on the said property and for recovery
of mesne profits against the transferees or the subsequent
purchasers from those transferees. Suit No. 34 of 1935 was
filed by Madho Dayal son of Ram Dayal for the same reliefs
in respect of the remaining one-third share. The alienations
were challenged by the plaintiffs on the allegations that
there was no legal or pressing necessity for the transfers
and that transfer by one of the daughters without the
consent of the remaining daughters was void ab initio and no
title passed on to the transferees. It was further alleged
that the transferees from the limited owners themselves had
no valid title and so they could not pass a better title to
others and thus those transfers were also bad.
The suits were contested by the various defendants by
filing separate written statements. It is, however, not
necessary to give details of the various written statements
filed in the case, suffice it to say that the defence in the
main was that the transfers were for legal and pressing
necessity and that there has been a complete partition
amongst the three daughters of Lala Gurdin and each one of
them was in separate possession of one third share of the
estate and, therefore, each was competent to transfer the
property without the consent of the other limited owners,
that some of the defendants viz. the trust, defendant No. 8
in suit No. 25 of 1935 had raised a double storied building
of Sanatan Dharam Degree College, Principal’s quarter,
quarters for the teachers, hostel for the students,
dispensary and library building at a heavy cost of rupees 4
to 5 lacs. Likewise defendants Nos. 19 to 23 in suit No.25
of 1935 had raised a costly residential building, swimming
pool etc. at a cost of more than a lac of rupees. It was
further asserted that the transfer by one daughter without
any objection from the other daughters will be presumed to
have been made with the consent of the other daughters. The
defendants also sought the protection of s. 43 of the
Transfer of Property Act inasmuch as after the death of the
two daughters Smt. Mewa Kuer became the sole heir and the
transfers made by her during the life time of other
daughters will be protected on the equitable principle of
feeding the grant by estoppel. The
724
Additional Civil Judge who tried the suit found that sale
deed dated 27th July 1901 was for legal necessity but as it
was executed without the consent of the other two daughters
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it was invalid and not binding on the plaintiffs. As regards
the sale deeds dated July 17, 1914 and October 19, 1915 the
learned Judge found them to be for legal necessity. These
sale deeds had been executed by Smt. Mewa Kuer when her two
sisters had died. Consequently the trial court dismissed
suit No. 25 of 1935 in respect of the sale deeds dated July
17, 1914 and October 19, 1915. This suit was, however,
decreed against defendants Nos. 19 and 20 to 23 for recovery
of Rs. 3200 in respect of the plaintiffs share on the
present market value of the land of Khata Khewat No. 4 (area
8 bighas) Mahal Mewa Kuer, village Jeora Nawabganj and for
recovery of Rs. 10,200 as plaintiffs two third share on the
present market value of the 30 plots (total area 15 bighas
17 biswas) entered as Khata Khewat No. 7 of Mahal Mewa Kuer,
village Jeora Nawabganj as against the trust, defendant No.
8. Those defendants were directed to pay the said amounts
within six months of the judgment becoming final. In case of
default the plaintiffs shall become entitled to recover the
said amount. The learned Judge did so in view of s. 51 of
the Transfer of Property Act on the ground that those
defendants had made valuable constructions as bona fide
purchasers.
The learned Judge has recorded findings with respect to
various other transfers against various defendants but they
are not relevant for the purposes of the present appeals.
Suit No. 34 of 1935 filed by Madho Dayal in respect of his
one third share was also partly decreed and partly
dismissed. As against defendant No. 8, the trust, it was
decreed for recovery of Rs. 5100 as plaintiffs one third
share on the present market value of 30 plots (total area 15
bighas 17 biswas) entered as Khata Khewat No. 7 of Mahal
Mewa Kuer village Jeora Nawabganj. It was also decreed
against defendants Nos. 21 and 22 to 25 for recovery of Rs.
1600 on account of one third share of plaintiffs on the
present market value of the land of Mahal Mewa Kuer, village
Jeora Nawabganj. But it was dismissed in respect of Mahal
Hazaro Kuer and Mahal Prago Kuer of village Jeora Nawabganj
as the plaintiffs’ father was also an executant of the sale
deeds along with Mewa Kuer.
The judgment of the learned Judge gave rise to appeals
by the plaintiffs and cross objections by the present
defendants-appellants
725
against that part of the judgment and decree which went
against them. The High Court reversed the finding of the
trial court with regard to the sale deeds dated July 17,
1914 and October 19, 1915 and held that they were not for
legal and pressing need. It, however, confirmed the finding
of the trial court with regard to sale deed dated July 27,
1901 but held that the plaintiffs should be given an
opportunity to make an election under s. 51 of the Transfer
of Property Act, as to whether they would like to pay the
compensation for the super-structures standing on the land
in question or to sell their share in the land.
Consequently, the High Court allowed the appeals of the
plaintiffs in part and remanded the case to the trial court
to afford an opportunity to the plaintiffs to make election
under s. 51 of the Transfer of Property Act. As the sale
deeds dated July 17, 1914 and October 19, 1915 were not for
legal necessity the subsequent transfers made by the
transferees of Mewa Kuer were also bad.
Shri V.K.S. Choudhury assisted by Shri S.S. Khanduja
contended that:
1 The High Court erred in holding that the
alienations made by one daughter to the exclusion
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of the other daughters was a bad transfer inasmuch
as:
(a) the property having been divided by the three
daughters the alienation made by one of them
for legal necessity was valid and binding on
the other, and
(b) the property having been divided there was
implied consent of the other daughters for
alienations.
2 The sale by one daughter without the consent of
the other in any case is not void but voidable.
3 The appellants in any case were entitled to the
protection of s. 43 of the Transfer of Property
Act.
4 The High Court erred in interfering with the
exercise of discretion of the trial court under s.
51 of the Transfer of Property Act.
726
5 In any case the High Court erred in directing the
determination of market value of the property on
the date of choice and not on the date of the
transfer.
In support of his first contention that the transfer by
one daughter without the consent of the other daughters was
valid the learned Counsel sought to rely upon the original
texts. Shri J.P. Goel, counsel for the plaintiff-
respondents, however, supported the judgment of the High
Court by referring to the Privy Council decisions of this
Court. As the point involved in this case is no more res
integra but has been well settled by the decisions of the
Privy Council and of the Indian High Courts we did not
permit the counsel to enter into archaeological survey of
the original text books. The learned counsel for the
appellants, however, tried to distinguish those cases on the
ground that those cases mostly were the cases of co-widows
but in the instant case we are concerned with the transfers
made by the daughters. In our opinion what is applicable to
co-widows is equally applicable to the case of daughters. No
distinction can be made on that account.
The Hindu Law by M.R. Raghavachariar, 5th Edn. 1965, p.
585 summarised the legal position in the following terms:
"Where two widows succeed as co-heiresses to their
husband’s estate, one of them cannot alienate the
property without the consent of the other even though
the alienation is for the necessity of the estate. They
are entitled to obtain a partition of separate portions
of the property and deal as each pleases with own life
interest, but she cannot alienate any part of the
corpus of the estate by gift or will so as to prejudice
the rights of the survivor or a future reversioner. If
they act together, they can burden the reversion with
any debts contracted owing to legal necessity, but one
of them acting without the authority express or implied
of the other cannot prejudice the right of survivorship
by burdening or alienating any part of the estate. The
mere fact of partition between the two, while it gives
each a right to the fruits of separate estate assigned
to her, does not imply a right to prejudice the claim
of the survivor to enjoy the full fruits of the
property during her lifetime and a mortgage by a Hindu
widow even for necessary purposes, when she has not
even asked
727
her co-widow to consent to the granting of the
mortgage, is not binding upon the joint estate so as to
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affect the interest of the surviving widow, and the
mere fact that there has been enmity between the co-
widows is no justification for the failure to ask the
consent of the co-widow. But in cases where the
concurrence of a co-widow has been asked for to a
borrowing by the other for necessary purposes and
unreasonably refused, a mortgage for such debt granted
only by one widow might be held binding on what may be
termed the corpus of the estate."
The question of alienation and co-widows has been
exhaustively considered with reference to the whole case-law
thereon in a decision of the Madras High Court in Appalasuri
v. Kannamma referred to with approval by the Privy Council
in Gauri Nath Kakaji v. Mt. Gaya Kuer in which following
propositions of law were laid down:
(1) The estate of co-widows or other co-heiresses in
Hindu Law is a joint estate, but it is unlike
other joint estates. It is indivisible. Strictly
it can never be divided, so as to create separate
estates such that each sharer is the owner of her
share and at her death, the reversioner’s estate
falls in. Such a division is impossible in law.
(2) Such partition as is permissible is merely for the
convenience of their enjoyment by the sharers;
(i) so as to last during the lifetime of both the
widows;
(ii) so as to bind them until the death of all of
them.
In the latter case, if one of the widows dies
before the other, without alienating the property, it
passes to the heirs of her private property and not to
the other co-widow, or their reversioners.
728
(3) By the very nature of the arrangement, there can
be no survivorship, if the partition is of the
second kind. But if it is of the first kind, it
cannot affect the right of survivorship of other.
(4) One of the co-widows can alienate her share, which
may be defined or undefined, according as there is
a partition or not. If the alienor dies before the
co widow, the alienation ceases to be operative,
if there is no partition, or if the partition is
of the first kind, the property goes to the co-
widow by survivorship. But if the partition is of
the second kind, the property continues to be
enjoyed by the alienee until the other co-widow
dies.
(5) Except for the limited purposes mentioned above,
i.e., during the lifetime of the alienor in a
partition of the first kind, or during the
lifetime of all the co-widows in a partition of
the second kind, there can be no alienation by a
widow of her interest, and whether there is
necessity or not, an alienation by one co-widow
cannot bind the reversioner.
(6) If an alienation for necessity is to bind the
reversioners, all the co-widows must join in it."
In this view of the legal position it is not open to
the counsel for the appellant to take up the matter afresh
by referring to the original texts. The general law is now
so well-settled that it scarcely requires restatement. If a
Hindu dies leaving behind two widows they succeed as joint
tenants with a right of survivorship. They are entitled to
obtain partition of the separate portions of property so
that each may enjoy her equal share of the income accruing
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therefrom. Each can deal as she pleases with her own life
interest but she cannot alienate any part of the corpus of
the estate by gift or will so as to prejudice the right of
survivorship or a future reversioner. If they act together
they can burden the reversion with any debts owing to legal
necessity but one of them acting without the authority of
the other cannot prejudice the right of survivorship by
alienating any
729
part of the estate. The mere fact of partition between the
two while it gives each a right to fruits of separate estate
assigned to her, it does not imply a right to prejudice the
claim of the survivor to enjoy full fruits of the property
during her lifetime.
It was, however, contended for the appellants that in
the circumstances of the present case consent of the other
daughters will be presumed. The alienations made by the
daughters separately to different persons was never
challenged by the other daughters. Even the reversioners did
not challenge those alienations during the lifetime of their
mothers and they sought to challenge the alienations long
after the death of the last limited owner Smt. Mewa Kuer in
1923 and even if the partition between the daughters had no
effect on the reversion it can safely be presumed that the
transfer made by one of the daughters of the property
exclusively in her possession had the consent of the other.
We find considerable force in this contention. This aspect
of the case has been completely lost sight of by the High
Court. The transfer made by one daughter without the consent
of the other is only voidable at the instance of the other
co-limited owners or at the instance of the reversioners. In
any case Smt. Mewa Kuer after the death of her two sisters
came into exclusive possession of the entire estate left by
Smt. Amrit Kuer, widow of Lala Gurdin. Therefore, the
transferees would be entitled to the protection of s. 43 of
the Transfer of Property Act which substantially amounts to
satisfying the equitable principle of ‘feeding the grant by
estoppel’. This question however loses its importance if
once we presume the consent of the other sisters in the
circumstances of the present case.
It was contended for the appellants that the plaintiffs
had accepted the amount evaluated by the trial court for the
land before the filing of the appeal in the High Court and,
therefore, it was not open to the plaintiffs to challenge
the amount of compensation fixed by the trial court, and in
any case the amount of compensation could not be fixed at
the market value prevailing at the time of making the choice
because the prices of constructions and the lands had gone
exorbitantly high and it will not be possible either for the
plaintiffs or for the defendants to pay the price according
to the present market value. No wonder in these
circumstances the plaintiffs accepted the amount of the
compensation fixed by the trial court.
730
The counsel for the respondents, however, contends that
the acceptance of the amount fixed by trial court was
without prejudice to their rights and, therefore, they
cannot be estopped from challenging the same. In view of the
fact that the trust has made valuable constructions
involving a cost of 5 to 6 lakh rupees of the college
building, the principal’s quarters, teachers quarters,
hostel, library, dispensary etc., in our opinion it will be
inequitable in the circumstances of the case to ask the
appellants to pay the present market value of the land. The
acceptance of the amount by the plaintiffs determined by the
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trial court will itself amount to making a choice within the
meaning of s. 51 of the Transfer of Property Act. From the
materials on record and the attending circumstances it is
obvious that a the reversioners were neither in a position
to pay for the improvements nor inclined to do so and this
is why they accepted the amount determined by the trial
court. In the circumstances of the case we are satisfied
that the High Court was not justified in remanding the case
to the trial court to afford another opportunity to the
plaintiffs to make a fresh choice.
The learned counsel half-heartedly sought to challenge
the finding of the High Court in respect of the sale deeds
dated July 17, 1914 and October 19, 1915 on the ground that
it had lost sight of the reasons given by the trial court
for holding that those transfers will be presumed to have
been executed for legal necessity in view of the
circumstances enumerated by the trial court. What quantum of
evidence will satisfy a particular court to come to a
conclusion is entirely in the discretion of the court. It is
not possible to interfere with the finding of the High Court
with regard to the two sale deeds dated July 17, 1914 and
October 19, 1915.
For the foregoing discussion the appeals must succeed.
They are accordingly allowed in part and the judgment of the
High Court remanding the case to the trial court for
affording another opportunity to the plaintiff-respondents
to make election is set aside and the judgment of the trial
court with regard to sale deed dated July 27, 1901 is
restored. There is, however, no order as to costs.
S.R. Appeal partly allowed.
731