Brahmvart Sanathan Dharam Mahamandal,
Kanpur & Ors Vs. Prem Kumar & Ors [1985] INSC 136 (10 May 1985)
MISRA, R.B. (J) 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 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 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
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 636-639 of 1971.
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 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 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 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
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 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 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.
Back
