1. In this case plaintiff 2 with plaintiff 1 as his vendee sued for partition and recovery of a half share of the property concerned, with mesne profits. The plaintiffs' claim is that plaintiff 2 and defendant 2 are the reversioners to the estate of one Gopalakrishna, who died in 1878 leaving a widow, Padmavati. It is admitted that the property with which we are con-corned was the self-acquired property of Gopalakrishna. The defendants contend that in 1895 Padmavati by Exs. 8 and 9 surrendered her widow's estate in that property to Anantha, the adoptive brother of her deceased husband, and that Anantha, who died in 1900, devised the property by will to the father of defendant 1. Defendant 3 is sued as the tenant in possession under a vaidegeni lease granted to his predecessor-in-title by Padmavati. The District Munsif and the Subordinate Judge have both dismissed the suit, holding that Exs. 8 and 9 effected a valid surrender of Padmavati's interest. The plaintiffs contest that finding on appeal here.
2. The documents, Exs. 8 and 9, are rather peculiar. Ex. 9 is executed by Padmavati herself, and Ex. 8, which is practically a counter part of it, is executed by her mother-in-law, Kaveramma, who describes herself as the widow of Sankaranarayana Bhatta and guardian of Anantha, the adopted son of Sankaranarayana Bhatta. Both documents start with the description that they are nishoodies or maintenance karars. Nishoody appears to mean a release deed, which would not be an unnatural description of a deed by which a widow surrendered her estate; but maintenance karar is certainly an unusual description for such a document. These documents show that Padmavati had been making. a demand for maintenance on Kaveramma. and the adopted son, Anantha, and that that was the occasion for the execution of the documents. They show that there-had been some mediation between the parties and that the mediators had recommended Kaveramma to hand over-possession of this property to Padmavati. It is provided that Padmavati is to enjoy the profits of this property for her life and that she can demise it by chalgeni or vaidegeni leases but that she has no right whatever to alienate it otherwise; and by these documents she gives up any right which she has to maintenance from the joint family funds of her husband's family.
3. It will be seen that by that transaction Padmavati got certainly nothing more than she was already entitled to as the widow of Gopalakrishna, Indeed what she got was something less than a widow's estate, which was hers,. and she gave up her undoubted claim to maintenance from her husband's joint family. When she did this, she was a widow of 22. She was dealing with her mother-in-law. No one can pretend that, this arrangement was a very wise one in her own interests, and, as contended for the plaintiffs, it appears to me very likely, that in entering into this transaction Padmavati was really unaware of her own rights. Mr. Sitarama Rao for defendant 1 has urged that it has been decided in Bhagwat Koer v. Dhannukdhari Prashad Singh A.I.R. 1919 P.C. 75, by their Lordships of the Privy Council that, even if a widow surrenders her estate in ignorance of her rights, the surrender will be binding upon her. I do not think that that is really the effect of that decision. In that case the widow had asserted her right in certain proceedings to a widow's estate; she had been defeated in those proceedings, and then she entered into a. compromise with her opponents in which she verbally admitted that she had no such right as she had claimed. Their Lordships say at p. 484 (of 47 Cal.):
It is true that the documents were drawn up on the, footing, not of a surrender of an acknowledged right, bat of an admission that the right did exist; but in substance, and disregarding the form, there was a complete self-effacement by the widow which precluded her from asserting any further claim to the estate.
4. That is certainly not to my mind a decision that a widow who is unaware of her rights can by admitting that she has no such rights effectively surrender her widow's estate. And, when we examine Ex. 8, the document executed by Kaveramma, it appears to me doubtful whether she really realized the true position of affairs. If Padmavati was going to surrender her widow's estate in order that the property might at once go to Anantha, it had first to be surrendered to Kaveramma and then by Kaveramma to Anantha. It is quite true, as Mr. Sitarama Rao has contended, that Kaveramma could be bound by something which purported to be a direct surrender from Padmavati to Anantha if it was clear that Kaveramma with full knowledge of the circumstances consented to it. In this document, Ex. 8, executed by Kaveramma, she gives her own description as well as describing herself as the guardian of Anantha. But it is to be noted that in one part of it she says : As Anantha is entitled to take the property after your lifetime' referring to Padmavati's lifetime. If that was what she imagined to be the position, she was certainly not aware of her own rights, because, if Padmavati had died during Kaveramma's lifetime it was Kaveramma who would have taken the next interest in the property. But apart from any question about the knowledge of Padmavati and Kaveramma as to their real rights in the matter, I think the very nature of the transaction shows that it could not be a valid surrender. Cases have been quoted before us which show that, although a widow, if she is going to surrender to the next reversioner, must make a complete surrender and must practically efface her interest, it is permissible for her to reserve some small interest in the property for her maintenance if that is not inappropriate or excessive. But here we have something very much more, something which would be very remarkable in anything which was intended to be a real surrender. As I have said, Padmavati by this transaction got something less than she was entitled to as a widow's estate. But she got the whole of the profits of the property for the whole of her life. Now can any one seriously contend that that, was a complete surrender of her estate and interest? It is true that the income of this property was small, so small that no one could pretend that the whole of it was excessive or even sufficient maintenance for her. But, if she was to get, as she was under these documents, the whole of the income of the property for the whole of. her life, that appears to me to be entirely contrary to any idea of a complete surrender. This would not be a case of any enjoyment of the property being surrendered to anybody during her life time. But the effect of the transaction, if it could be upheld, would be that Anantha would get an immediate interest in the property, which could go to his heirs, instead of the reversion being preserved for the reversioner who might be the right person at the time of Padmavati's death. And it happened that Anantha died long before Padmavati with the result that, if this transaction could be upheld as a surrender, although Anantha got nothing whatever out of it, when Padmavati died, the real reversioners at Padmavati's death would be defeated. In my opinion we could not possibly uphold such a transaction as a valid surrender of a widow's estate
5. But Mr. Sitarama Rao contends that this transaction has been before this Court in previous litigation and the learned Judges before whom the matter came have expressed the opinion that the transaction amounted to a surrender. The case referred to is O.S. No. 31 of 1918 on the file of the District Munsif of Puttur, which came before this Court as S. A. No. 681 of 1920. In that case defendant 1, claiming to be the heir of Anantha's devisee, sued defendant 3 as tenant for possession. Defendant 3 then contended that defendant 1 had no right to sue as the property had gone after Padmavati's death to her reversioners, that is, the present plaintiff 2 and defendant 2, who were not parties to that suit. Now what was said by the learned Judges who hoard that appeal was:
Exhibit C (that is Ex. 9 here) appears to be a device to defeat the reversioners, but it will bind the persons who were parties to it and persons deriving title from them, which will include the defendants who hold on a leasehold title obtained from Padmavati.
6. That was quite enough to prevent defendant 3 from disputing the question that this transaction was a surrender in that suit; but surely those remarks do not 'go at all against the plaintiffs in the present suit. The very first remark, that Ex. 9 appears to be a device to defeat the reversioners, is very strongly in the plaintiff's favour. Then the judgment in that case goes on:
The defendants were not entitled to defeat the plaintiff's title by pleading as jus tertii the right of certain unrepresented reversioners, from whom they have derived in independent title.
7. With that statement no one can com-plain. Then the judgment goes on:
The District Munsif was right in saying as between Kaveramma and Padmavati that the former should not have given the property to the latter for her life for maintenance if she had not first surrendered it to the former.
8. Well, that too is obviously correct so far as it goes; but there is nothing really in it on which defendant I can rely to show that the learned Judges formed any definite opinion that there was a valid surrender in this case a question with which it was quite unnecessary for them to deal. Mr. Sitaram Rao then points put that plaintiff 2 has had part in another litigation. O.S. No 113 of 1903 on the file of the Subordinate Judge of South Kanara. In that case the present defendant 2 sued for a declaration that he and plaintiff 2 wore reversioners to Anantha's property on his death and that the will executed by Anantha was a forgery. That suit was dismissed in the original Court on the ground that the' plaintiffs could not sue for such a declaration regarding the will. The High Court reversed that finding and remanded the suit; but after remand it was not prosecuted any further. Plain-tiff 2 put in a written statement in that suit, in which he agreed with the present defendant 2 that the will of Anantha was invalid. and he also contended that Anantha was not competent to alienate the property; he said that he had been wrongly impleaded and that he was not) responsible for the suit in any way and asked to be exonerated'. This is the only part he seems to have taken in the proceedings, though if is curious that he appears implicitly to have acquiesced by that written statement in the position taken up by defendant 2 that the property was Anantha's. I do not think that he can be precluded in any way from bringing his present suit by what happened in that suit.
9. But Mr. Sitarama Rao still has one-further objection to raise to the plaintiffs' suit, that it is admitted by plaintiff 2 that, before he sold his interest in the property to plaintiff, he had granted a mulgeni lease to one Keshava Shanbogue, who is not a party to the suit. Mr. Sitarama Rao contends that, that is a fatal objection to the plaintiffs' maintaining this suit for actual possession. It will be seen from the mulgeni chit, which has been produced in this case as Ex. 14, that 'there is no provision for forfeiture on failure to pay rent in that lease or for re-entry for any other cause. Now I do not think it can be doubted that in England, if a lessee has been put in possession by his lessor, the lessor while he has no present right of re-entry cannot sue a trespasser either in trespass or in ejectment; and I do not see Why the law on that point should be different in this country. On the contrary there are a number of decisions which shows that it is the same in this country on that point : Sita Ram v. Ram Lal  18 All. 440, a decision of four Judges of a Full Bench. Ramanadan Chetti v. Pulikutti Servai  21 Mad. 288, and Krishna Nambudri v. Secretary of State  19 M.L.J. 347 and the opinion of Wallis, C.J., in. Mohideen Ravuthar v. Jayarama Ayyar A.I.R. 1921 Mad. 42, is to the same effect. But Mr. Adiga has urged, however, that there are other decisions of this Court which show that, when the lessee has n6t been put in possession, as in this case, the lessor, who in this country has a statutory duty to put his lessee in possession, can maintain a suit for actual possession against a trespasser. Somiammal v. Vellaya Sethurangan  29 M.L.J. 233, is an instance. The same view was taken by Sadasiva Ayyar, J., in Mohideen Ravuthar v. Jayarama Ayyar. Without going into other cases in which the view has been taken that, even when the lessee has been put in possession by the lessor the lessor can sue a trespasser for possession, I am inclined myself to agree with the view that so long as the lessor has a statutory duty in this country to put his leasee in possession, he has a right himself to sue for possession in order that he may fulfil that duty. But I do not think that that is of any use to the plaintiffs in this case. The statutory duty of a lessor to put his lessee in possession only exists in this country if there is no contract to the contrary, and in this case there appears to be a contract to the contrary. Ex. 14 shows that Keshava Shanbogue undertook that he would be responsible for getting possession of the property peacefully or by suit from defendant 3, who was then in possession.
10. In this case the lessor plaintiff 2, had no duty to put his lessee in possession and in these circumstances I cannot see that he has any right to maintain this suit for actual possession without at least joining his lessee in the suit. Mr. Adiga has suggested that the defect of the absence of the lessee might be put right even at this late stage by giving permission to implead him. Speaking for myself, I do not think it would be right or fair to do that in this case. The plaint in this case was presented in 1921. The defendant took the objection at once that the suit was not maintainable on this very ground that the lessee was not a party to it. The plaintiffs thought fit to ignore or oppose that objection in spite of it being upheld against them by the District Munsif. I do not think it would be right seven years later to allow them to implead the lessee now in order to set right the mistake in which they have persisted so long. But Mr. Adiga has drawn our attention to certain cases which show that, even when the lessor has no right to sue for actual possession and he brings a suit for actual possession, a decree may be given in his favour declaring his title in proper cases. That was done in Tiruvengada Konan v. Venkataohala Konan  39 Mad. 1042 and Ghulam Hussin v. Mohammad Hussain  31 All. 271. In the view I have taken of the case I think there can be no doubt that plaintiff 2 and through him his vendee, plaintiff 1, have title to half of the property concerned in the suit, and, although plaintiff 2 has not sued for any declaration in this suit, I think in the circumstances instead of leaving the litigation to be renewed we may properly make a declaration that plaintiff 2 is entitled to half of the property as reversioner to Gopalakrishna's estate and plaintiff 1 as his vendee. That is so far I think as we can properly go in this case to help the plaintiffs, who have been so reluctant to help themselves in a very simple way. In the circumstances it appears to me proper that each party should bear his own costs throughout this litigation.
11. I entirely agree and ordinarily should not have added one; word but do so out of respect to the exhaustive arguments which we have heard from the learned advocates on both sides.
12. This property which is very small in value has been in litigation for nearly 25 years and it is certainly very sad that it should have taken all that time to discover the proper nature of the transaction evidenced by Exs. 8 and 9. The two contending parties have been defendant 1 on one side basing his right first on the will of Ananthan and later on as his reversioner and on the other, plaintiff and defendant 2 as reversioners of Gopalakrishna. There were two suits one of 1903 and one of 1918 besides the present litigation which began in 1922. Eventually, as pointed out by my learned brother, the decision of the case depends at last, after 25 years, on two short points : (1) whether Exs. 8 and 9 really constitute a legal surrender by Padmavati of her widow's interest in this property and (2) whether if the plaintiffs are entitled to succeed on that ground, they are entitled to possession.
13. Now, on the first question, probably the misapprehension in the minds of the parties had been very largely due to the course which the previous litigation (Ex. E) had taken and to some remarks from their Lordships in this Court who appear to have probably based the same on arguments submitted to them on the looting of Exs. 8 and 9 being surrenders. In my humble opinion, the judgment, Ex. E, was really concluded by the first sentence in it wherein their Lordships state that the defendants in that suit who derived their title as lessees from Padmavati could not resist the claim of the plaintiffs therein who also derived their title under the same instrument by which Padmavati derived hers by pleading jus tertii. The further remarks in that judgment are really obiter and do not really confer any rights. In any case that decision is not binding on the plaintiffs in this case. We have therefore to decide the nature of the transaction in Exs. 8 and 9 on its own merits and we have to do it by considering the wording of those documents themselves elucidated by the circumstances in which they came into existence to the extent to which such circumstances are admissible in the construction of documents.
14. Two circumstances have been strongly relied on by the respondents' advocate, one, that they are called 'nishoodied' and the other, that the Privy Council has decided that it is not necessary to constitute a surrender for a widow to say in so many words that she has surrendered her estate but it is enough if in substance she does so. The word 'nishoody' occurs in both Exs. 8 and 9. The first is an instrument executed by Kaveramma to Padmavati and the second is executed to her by Padmavati. Now, understanding ''nishooded' as a release, what did Kaveramma release by Ex. 8? Nothing. To that extent, the description of Ex. 8 is a misdescription. On the other hand, a reading of the document Ex. 9 shows that what was released by Padmavati by it was her right to maintenance from the family property, not her right as widow to her husband's estate. The two documents read together show and can lead to only one conclusion that the mother-in-law and the daughter-in-law both regarded the property in question as family property and were anxious to keep the property in the family and hence the stipulation that Padmavati was to enjoy it for life in lieu of maintenance and the statement that on her death it will revert to Anantha. Neither in the language of the documents, nor in the circumstances in which they arose is there the slightest justification for the inference that Padmavati was aware of or purported to deal with her widow's estate or to surrender it to any one. This I consider to be the only proper construction of these documents and if that is so, no question whatever of surrender arises on them. In my humble opinion, therefore, the cases which have been cited on the footing that the documents are surrenders have really no bearing in this case.
15. On the second point, the plaintiffs undoubtedly are not entitled to immediate possession as plaintiff 2 has given a mulgeni lease of the property (Ex. 14) to one Bami Keshava Shanbogue who has not been made a party to this suit. It is argued for the appellants that they are, however, entitled to the reversion and hence to protect it. Whatever other steps may be open to the owner of reversion in land demised to protect his interest, his right to sue a stranger for possession while the lessee is entitled to present possession has been the subject of much conflict of judicial opinion : see the cases collected by Jackson, J. in Veeraswami Mudali v. Venkatachala Mudali A.I.R. 1926 Mad. 18.. As pointed out by my learned brother, the lessee has in Ex. 14 agreed to reduce the property to possession himself-peacefully or by suit and this excludes whatever support the plaintiff may derive from Clause (b), Section 108, T.P. Act, which casts the duty on the lessor to put the lessee in possession. The plaintiff is not entitled to a decree for possession. But to dismiss the suit on that ground would hardly meet the ends of justice. Having regard to the course which the litigation about this property ha3 taken all these years, I think it will be a further waste of time to leave the question of title undecided and leave the parties to bring a separate suit for that purpose. Taking this into consideration and following the decisions in Tiruvengada Konan v. Venkatachala Konan and Ghulam Hussain v. Muhammad Hussain I have come to the conclusion that the proper order to pass is what my learned brother has proposed.