Holding

Alienations by a limited owner after partition, where no objection was raised, are presumed to have the consent of co‑owners and are protected under section 43 of the Transfer of Property Act; the High Court's remand was set aside and the trial court's decision restored.

Summary

Lala Gurdin died leaving his widow and three daughters who became limited owners of his estate. The daughters partitioned the property and each made separate alienations, including three sale deeds (1901, 1914, 1915) executed by the last surviving daughter, Smt. Mewa Kuer. After her death, the sons of the other daughters (reversioners) challenged the alienations, alleging lack of legal necessity and absence of consent, and claimed the transfers were void. The trial court held the 1901 deed invalid for lack of consent but upheld the 1914 and 1915 deeds as made for legal necessity and protected under s.43 of the Transfer of Property Act, awarding compensation under s.51. The High Court reversed this, deeming the later deeds not for legal necessity and remanding for a fresh election under s.51. The Supreme Court allowed the appeals in part, restoring the trial court’s view that the later alienations were presumed to have the consent of co‑owners, were for legal necessity, and thus entitled to protection under s.43; it held that the High Court’s remand was erroneous and that the discretion of the trial court on evidence was not reviewable.

Issues considered

The validity of alienation by one limited owner without the consent of co‑owners – whether it is void or merely voidable.
Whether the alienations made by Smt. Mewa Kuer were for legal necessity and therefore protected under section 43 of the Transfer of Property Act.
Whether the reversioners could challenge the alienations after the death of the limited owners.
Whether the High Court erred in directing a fresh election under section 51 of the Transfer of Property Act.
How compensation for improvements should be assessed – at the time of transfer or at the time of election.

Legislation cited

Transfer of Property Acts. 43, s. 51

Subjects

Hindu lawlimited ownersjoint tenancyright of survivorshipalienationlegal necessityTransfer of Property Actsection 43section 51feeding the grant by estoppelpartitionreversionersvoidable transfer

Judgment

718

BRAHMVART SANATHAN DHARAM MAHAMANDAL
A KANPUR & ORS. '

v.

PREM KUMAR & ORS.
B May 10, 1985

(0. CH1NNAPPA REDDY AND R.B. MlSRA, JJ.J

Hindu Law-Right of the lilnited owners to alienate the joint estate of a
c proposilus during their life time after division of the property in equal shares and
coming into possession thereof, without tire consent of the other co-owners-
Consequences of the alienations made-Whether passes title to the successive
alienees 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 wi h thr discretionar)'
power of the lligli Court to evaluate the evidance.
D
One Lala Gurdin, who had acquired extensive landed property in
Kanpur died on December IO, 1861 leaving behind his widow Smt. Amrit Kuer
and three daughters: Smt. Hazarao Kuer fron1 his predeceased wife, and Smt.
Mewa Kuer and Smt. Prago Kuer from Smt. Amrit Kuer. After the death of
Gordin his entire estate came into the hands of his widow Smt. Amrit Kuer
E and after her death on August I, 1880, the three daughters of Lala Gurdin
succeeded to the estate left by S1nt. Amrit Kuer, as limited owners. They
divided the property amongst themselves, each coming into possession of
one-third share. When Smt. Pra&o Kuer died on July 8, 1907 the estate
remained with the two surviving daughters. \\'hen 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.
F
During their life time thr 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
&ale 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 arc in possession of the appellants trust while the properties covered
G 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 Sm!. Mewa
Kuer and her son Ram Dayal.

After the death of Smt. Mewa Kuer in 1923, her surv1v1ng reversioners
H 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 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
D.S.D. MAHAMANDAL v. PreM KUMAR 719

allegations (i) that there was no legal or pressing necessity for the transfers; (ii) A
that transrer by one of the daughters without the consent of the remaining
daughters was void ab inltio 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 transfer• were also
bad.

The suits were contested by the transferees in possession seeking protec.. B
lion 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 ~ale Survivor.

The Additional Civil Judge found that, while sale deeds or 1914 and
1915 were for legal necessity as they had been executed l-y Smt. Mewa Kucr c
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. Con-
sequently 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 D
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 E
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 super·
5tructures !tanding 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
F
the plaintiff to make election under section 5 l of the Transf~r 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 wtr1
bad. Hence the appeals by certificate.

Allowing the appeals in part, the Court G
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 thereform. 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 H
so as to prejudice the right of survivorsi.1ip 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 or the other cannot prejudice the
720 SUPRBMB COURT RBPORTS (1985] SUPPL. s.c,R.

right of servivorship by alienating any part of the estate. [728 G-HJ
A
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-widow~ is equally applicable to the case of daughters.
No distinction can be made on that account. [726 C-D, 729 A-BJ
B
Gaurl Nath Kakaji v. Mt. Gaya Kuer, [1928] P.C. 251 followed,
Appalasuri v. Kannan1n:a, 49 M .L.J. 479 approved.

2.1 The transfer made by one daughter without the consent of the other
c is only voidable at the instance of the other co-limited owners or at the intance
of the reversioners. [729 D-EJ

2.2 Here, the alienations made by the daughters separatley 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
D sought to challenge the alienations long after the death of the la~t limited
owner Smt. Mewa Kuer in I 923 and therefore, even if the partition between the
daughters bad 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 posse-
sion 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 Gordin. Therefore, the transferees
E would be entitled to the protction 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-EJ

F
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'•
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
G 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 tho plaintiffs to make a fresh choice. [930 B-D]

H 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]
D.s.D. MAHAMANDAL v. PREM KUMAR (Misra, J.) 721

CIVIL APPELLATE JURI'DICTION: Civil Appeal No~. 636-639 of
1971. A
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,
B
Dhirendrajit Singh, Mahfooz Khan and Y.P. Dhingra for the
Appellants, in C.A. Nos. 636-37 of 1971.

V.K.S. Choudhury and B.P. Maheshwari for the Appellants in
C.A. Nos. 638-39 of 1971. c
Vinoo Bhagat for the Lrs. of Appellant No. 1 in C.A. Nos.
638-39 of 1971.

J.P. Goya/, V.K. Verma, Rajtsh, Raghunath Singh, M.P. Jho, D
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 E
Alhhabad 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. F
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 DeGembcr 10, 1861
leaving behind his widow Smt. Amrit Kuer and three daughters :
Smt. Hazaro Kuer from his predeceased 1'ife, and Smt. Mewa Kuer
and Smt. Prago Kuer from Smt. Amrit Kuer. After the death of G
Gurdin his entire estate came into the hands of his widow, Smt.
Amrit Kuer. Amrit Kuer also died on August I, 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 kft by Smt. Amrit Kuer, as
H
limited owners. Soon after the succession the three daughters divided
the property amongst themselves and . they came in possession of
722 SUPRBMB COURT REPORTS (1985 j SUPPL, 11.C.R.

one-third share each. When Smt. Prago Kuer, one of them, died on
A 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.

B 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
dilforent 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
c 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
Oopi Nath who is dead and is represented by defendants 19 to 23 in
D 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.

E 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 dated October 12, 1919 in respect of 8 bighas and odd
pertaining to Mahal Prago Kuer and 5 bigbas 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, J 915 in
G 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 193S.

After the death of Smt. Mewa Kuer, the last surviving daughter,
on July 14, 1923 the succession opened in favour of daughters' sons of
H
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 die\! ill 1931 Jeavin~ behind his son Madho Paya!. After
B.S.D. MAHAMANDAL v. PREM KUMAR (Misra, J.) 723

the death of Ram Dayal the reversioners sought to challenge the
various alienations made by the limited owners, some by Smt. Amrit A
K uer 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 reco-
B
very 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 c
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
w they could not pass a better title to others and thus those transfers
were also bad.
D
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 E
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 bad raised a F
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 G
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 H
made by her during the life time of other daughters will he protected
on the equitable principle of feeding the grant by estoppel. The
724 SUPREME COURT REPORTS {1985) SUPPL, S.C.ll

Additional Civil Judge who tried the suit found that sale deed dated
A 27th July 1901 was 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. 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 bad been executed by Smt. Mewa Kuer
B when her two sisters had died. Consequently the trial court dismissed
suit No. 25of1935 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
c 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
D 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.

E
The learned Judge bas 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 bis one third share was also partly
decreed and partly dismissed. As against defendant No. 8, the trust,
F
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
Jcora Nawabganj. It was also decreed against defendants Nos. 21
and 22 to 25 for recovery of Rs. 1600 on account of one third share
G 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 Nawab-
ganj as the plaintiffs' father was also an executant of the sale deeds
along with Mewa Kuer.
H
The judgment of the learned Judge gave rise to appeals by the
plaintiffs and cross objections by the rresent defen\)apts-appellants
B.S.D. MAHAMANDAL v. PllEM KUMAR (Misra, J.) 72S

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
A

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 B
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
1. 51 of the Transfer of Property Act. As the sale deeds dated c
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 O
contended that :

I. The High Court erred in holding that the alienations
made by one daughter to the exclusion of the other
daughters was a bad transfer inasmuch as :
E
(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 F
implied consent of the o!her daughlers for
alienations.

2. The sale by one daughter without the consent of the
other in any case is not void but voidable. G

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 H
of discretion of the trial court under s. 51 of the
Transfer of Property Act.
726 SUPREME COURT REPORTS [1985] SUPPL. s.c.P..

A
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
B 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
c permit the counsel to enter into archeological 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 appli-
cable to co-widows is equally applicable to the case of daughters. No
D 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 :

E "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 aliena-
tion is for the necessity of the estate. They are entitled
to obtain a partition of separate portions of the property
F 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
G necessity, but one of them acting without the authority
express or implied of the other cannot prejudice the right
of survivorship by burdening or alienati~g 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 assig-
ned to her, does not imply a right to prejudice the claim
H 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
ll.s.o. MAltAMANDAL v. PREM KUMAR (Misra, J.) 72'1
her co-widow to consent to the granting of the mortgage,
is not binding upon the joint estate so as to affect the A
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
8
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 c
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 :

(I) The estate of co-widows or other co-heiresses in
D
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 E
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
F
widows;

(ii) iO as to bind them until the death of all of
them.
G
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
to the other co-widow, or their reversioners.
B
(1) 49 M.L.J 479
(2) [1928] P.C. 2$1
728 SUPREME COURT REPORTS [1985) SUPPL. s.c.R.

(3) By the very nature of the arrangement, there can be
A no survivorship, if the partition is of the second kind.
But if it is of the first kind, it canot affect the right of
survivorship of other.

B (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.
c But if the partition is of the second kind, the pro-
perty continues to be enjoyed by the alienee until the
other co-widow dies.

(5) Except for the limited purposes mentioned above,
D i.e., during the lifetime of the a lie nor 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
E one co·widow cannot bind the reversioner.

(6) If an alienation for necessity is to bind the rever·
sioners, all the co-widows must join in it."

F
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
G 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 there-
from. 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
H 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
B.s.o. MAHAMANDAL v. PREM KUMAR (Misra, J.) 729

part of the estate. The mere fact of partition between the two while
A
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 fm the appellants that in the 8
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. Ev3u
the revers;oners 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 c
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 bas been completely lost sight of by the High D
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
Gordin. Therefore, the transferees would be entitled to the protection E
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. F

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 G
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
exhorbitant!y high and it will not be possible either for the plaintiffs H
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 SUPREME COURT REPGRTS (1985] SUPPL, S.C.R.

The couns.cl for the respondents, however, contends that the
A acceptance of the amount fixed by trial court was without prejudice
to their rights and, therefore, they cannot be estopped from challeng·
ing 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 quaters, hostel, library,
B 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 plaint·
iffs determined by the 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
G the reversioners were neither in a position to pay for the improve-
ments nor inclined to do so and this is why they accepted the amount
determined by the tri1l court. Ia 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.
D
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
E 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

F
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 oppor-
tunity to the plaintiff-respondents to make election is set aside and
G 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.