1. This was a suit brought by one Varada Jaggu Naidu, son of Naranna Naidu, for recovery of a one-third share in the plaint property which had been alienated by the widow Gaviramina in favour of one Sanyasi the father of the first defendant. He based his claim on the ground that he was one of the three reversioners entitled to the estate of one, Venkata Appala Naidu whose widow Gaviramma was. The other two reversioners are the third defendant, son of Musali Naidu, and the second defendant, the plaintiff's brother, also a son of Naranna Naidu.
2. The relationship of the parties is shown in the pedigree given by the Appellate Judge in his judgment. Venkata Appala Naidu died, leaving two widows Gaviramma and Achamma and they were in enjoyment of the properties of the deceased as his brothers were divided from him. Gaviramma seems to have alienated the property in question in this suit to one Sanyasi whose son the first defendant is. The plaintiff claims that this alienation is invalid and that it did not pass any property beyond the lifetime of Gaviramma and that he is, therefore, entitled to recover his share of the property from the alienee.
3. The pleas raised by the first defendant, who was the only contesting defendant, were one of limitation based upon the ground that Gaviramma died more than 12 years before the date of the suit and the other of estoppel based on a compromise decree passed in O.S. No. 500 of 1881 in a suit brought by Musali Naidu the father of the third defendant.
4. The question of limitation is not raised in the second appeal now, as it has been concluded by a finding of fact that Gaviramma died only in January 1910.
5. As regards the question of estoppel, the facts are these : Musali Naidu brought a suit against Gaviramma and Sanyasi to have it declared that the alienation by Gaviramma to Sanyasi was not valid and binding on the reversioners. To that suit there were no other parties except these three persons. That suit ended in a compromise entered into between Musali Naidu and the defendants therein and the compromise decree is Exhibit 11.
6. It is contended that that compromise is binding not only on Musali Naidu who was a party to the suit but also upon the other reversioners including the present plaintiff and that the plaintiff is estopped from claiming his share in the property on account of the compromise. The compromise provides for a certain property being taken by the plaintiff in that suit, Musali Naidu for himself and the two other reversioners who were then alive, namely Naranna Naidu and Bangari Naidu and also for the reversioners recognising the alienation to Sanyasi and leaving certain properties with the widow Gaviramma and further provides that if the reversioners were to sue Atchamma, her co-widow, for her properties, the defendants in the suit should raise no difficulty in their way.
7. It is contended that this amounted to a, surrender by the widow to the next reversioner and as such surrender it was a valid transaction binding on the reversioners and therefore that none of the reversioners can impeach it though they were not themselves parties to the compromise.
8. It seems to me that this is a difficult proposition to maintain. In the first place one co-widow without the conjunction of the other co-widow cannot, in my opinion, surrender the estate of their husband at all because both the widows have equal rights in their husband's estate and without the two widows joining there can be no surrender of that estate as the surrender requires that the whole of the estate should be dealt with in the matter of surrender. In the second place the attempts made by the first defendant failed in his attempt to show that though Bangari Naidu and Naranna Naidu were not parties to the compromise decree which is supposed to have affected the surrender, they were bound by that decree because they took advantage of the arrangement under that decree and enjoyed the lands in separate shares. This is found against by the appellate Court and is a question of fact on which I must accept its finding.
9. For both these reasons, the lower Appellate Court was right in holding that the compromise decree, Exhibit 11, is not binding on them. As both the defences failed, the appeal fails and must be dismissed with costs.
10. There is a memorandum of objections filed in the case as regards mesne profits subsequent to the date of the suit. It is not necessary to pass any special orders on this matter for when the application for stay of execution pending the second appeal came up it was agreed to by the first defendant's learned Vakil that, as a condition for stay, his clients would undertake to pay mesne profits on these properties at the rate decreed for the period subsequent to date of the suit, that is, at Rs. 50 a year. It will be perhaps conducive to clearness if that order is embodied here and a decree is drawn up not only for past profits but for future profits at the same rate till the date when possession is given.
11. I do not think that the respondent is entitled to costs on the memorandum of objections in view of the agreement that had already been entered into between the parties before the memorandum was filed. The memorandum of objections is allowed but without costs.