Brahmvart Sanathan Dharam Mahamandal, Kanpur vs Prem Kumar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1985 Supreme(SC) 208

SUPREME COURT OF INDIA
O. CHINNAPPA REDDY AND R.B. MISRA, JJ.
Brahmvart Sanathan Dharam Mahamandal, Kanpur and others, Appellants
Versus
Prem Kumar and others, Respondents.
Civil Appeals Nos. 636-639 of 1971, D/- 10-5-1985.
Advocates appeared
Mr. V. K. S. Chaudhary, Sr. Advocate, Mr. V. V. Misra, Mr. S. S. Khanduja, Mr. A. S. Pundir, Mr. Dhirendrajit Sigh, Mr. Mahfooz Khan and Mr. Y. P. Dhingra, Advocates with him, for Appellants in C. A. Nos. 636-37 of 1971, Mr. V. K. S. Chaudhary, Sr. Advocate, and Mr. B. P. Maheshwari, Advocate with him for Appellants in C. A. Nos. 638-39 of 1971, Mr. Vinoo Bhagat, Advocate for the Lrs. of Appellants No. 1 in C. A. Nos. 638-39 of 1971, Mr. J. P. Goyal, Sr. Advocate, Mr. V. K. Verma, Mr. Rajesh, Mr. Raghunath Singh Mr. M. P. Jha and Mr. T. C. Sharma, Advocates with him, for Respondents.

Advocates:
A.S.PUNDIR, B.P.MAHESHVARI, Dhirendrajit Singh, J.P.GOYAL, M.P.Jha, MAHFUZ KHAN, RAGHUNATH SINGH, Rajesh Agarwal, S.S.Khanduja, T.C.SHARMA, V.K.S.Chaudhary, V.K.VARMA, V.V.Mishra, VINU BHAGAT, Y.P.DHINGRA

Headnote:Transfer made with consent of others — co–limited owners - Transferee making valuable constructions — It will be inequitable in the circumstances to ask the appellants to pay the present market value of the land
       – 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 there from. Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the right of survivorship or a future reversioner. If they act together they can burden the reversion with any dents owing to legal necessity but one of them acting without the authority of the other cannot prejudice the right of survivorship by alienating any 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 survivor to enjoy full fruits of the property during her life time.
       – similarly the transfer made by one daughter without the consent of the other is only voidable at the instance of the other Co. Ltd. Owners or at the instance of the reversioners. In the case of Brahmvart Sanathan Dharam Mahamandal v. Prem Kumar, AIR 1985 SC 1102 = 1985 (3) SCC 350, it was held that the transferees would be entitled to the protection of Section 43, which substantially to satisfying the equitable principle of “feeding the grant by estoppel”. Also held in the case of Ram Pyare v. Ram Narain, AIR 1985 SC 694 = 1985 (2)SCC 1622 = 1985 UJ(SC) 668, that the transferee was entitled to the benefit of this section.

       – the acceptance of the amount by the plainitff as determined by the trial Court will itself amount to making a choice. Within the meaning of Section 51 of the Act - see decision in Brahvari Sanathan Dharam Mahamandal v. Prem Kumar, AIR 1985 SC 1102 = 1985(3) SCC 350.
       – the acceptance of the amount by the plaintiffs as determined by the trial court will itself amount to making a choice. Within the meaning of Section 51 of the Act – See decision in Brahmvart Sanathan Dharam Mahamandal v. Prem Kumar, AIR 1985 SC 1102 = 1985 (3) SCC 350.

Judgement

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.

2. 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 lifetime 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 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.

3. During their lifetime the three daughters had been making various allenations of the property that fell to their exclusive share. Smt. Mewa Kuer also made a number of allanatim 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 (Sic) Mewa Kuer and 2 anna 8 pie share in Mahal Katri. Ram Narains 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 Brahmavart Sanathan Dharam Mahamandal, Kanpur, hereinafter referred to as the trust, and arrayed as defendant No. 8 in suit No. 25 of 1935.

4. 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 Kuer 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.

5. 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 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

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