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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