ivil Appeal Nos
636 639 of 1971
From the Judgment and Order dated 1451963 of the Allahabad High Court in FA Nos
2391945 1711946 2391945 and 17146 respectively
VKS Chaudhury VV Misra
SS Khanduja AS Pundir Dhirendrajit Singh Mahfooz Khan and YP Dhingra for the Appellants in CA Nos
636 37 of 1971
VKS Chaudhury and BP Maheshwari for the Appellants in CA Nos
638 39 of 1971
Vinoo Bhagat for the Lrs of Appellant No 1 in CA Nos
638 39 of 1971
JP Goyal VK Verma Rajash Raghunath Singh MP Jha and TC 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
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
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 121919 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
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 No25 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 section 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 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 10200 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 section 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 section 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 section 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 VKS Choudhury assisted by Shri SS Khanduja contended that 1 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 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 section 43 of the Transfer of Property Act
4 The High Court erred in interfering with the exercise of discretion of the trial court under section 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 JP 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 MR 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 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 vs Kannamma referred to with approval by the Privy Council in Gauri Nath Kakaji vs 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 ie 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 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 section 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 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 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
SR Appeal partly allowed


Summary:
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 11880 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 141923
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 271901 July 17 1914 and October 191915 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 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 11 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 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 12 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 vs Mt Gaya Kuer followed
Appalasuri vs Kannamma approved
21 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 22 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 23 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