Madhavan Nair, J.
1. The facts of these second appeals are somewhat complicated but a reference to the main features is all that is necessary for deciding them. The plaint properties originally belonged to a certain Issakiadumperumal Pillai, who died in 1862. The plaintiffs alleged that he had made a nuncupative will granting life-estate in his properties to his widow Piramuthu Animal and a remainder over in favour of his five daughters, of whom Nallavadivammal was one and Subbammal another. Sometime after his death his widow left a registered will, Ex. A, dated 1870, in which she purported to give effect to the wishes of her husband by giving an absolute title to the five daughters in respect of the properties. The nuncupative will has been found to be not true, and it has been held that. Nallavadivammal obtained only a limited estate in the properties which enured for the lifetime of the sisters. These findings have not been attacked before me and the argument proceeded on the assumption that these are binding on the parties. Subsequent to the death of Piramuthu the five daughters including Nallavadivammal and Subbammal effected a partition as evidenced by Ex. B, dated 3rd June 1879, whereby each of them purported to take absolutely for her share certain properties, giving up her interest in the properties allotted to others and excluding the right of succession by survivorship in case one of them predeceased the others. It will be a question for consideration as to whether the right of succession by survivorship of any one of the daughters as regards the property of the others has been really excluded by this document. On 30th March 1910 Nallavadivammal made a settlement of the properties which she acquired under Ex. B. in favour of her son, defendant 1, and of his sons, i.e., her grandsons who are plaintiffs in this suit. As defendant 1 was of a week and imbecile intellect, she appointed her daughter-in-law (the mother of the plaintiffs) and defendant 2 (their sister's husband) to manage the properties. Sometime later, i.e., on 2nd April 1912, defendant 1 professing that the suit properties belonged to him, alienated them to defendant 2 by Ex. 6. Impugning the validity of this sale-deed the plaintiffs instituted a suit, out of which these two second appeals have arisen, for the recovery of their two thirds share in the properties together with past and future profits. The High Court on a previous occasion held that the plaintiffs' suit being one for partial partition, was not maintainable inasmuch as they had asked only for a two-thirds portion of the alienated properties. They were then allowed to amend the plaint and make a claim for two-third share in all the properties settled upon them. This has been done now.
2. It may be stated here on 23rd January 1921, even before the High Court actually remanded the suit for fresh trial, Subbammal, the last surviving daughter of Piramuthu, had died and in consonance with this new state of affairs, the plea was raised that the plaintiffs, at the time this amended plaint was filed, were on account of Subbammal's death not entitled to the actual possession of the property. On the fresh pleadings, the District Munsif held that the plaintiffs were not entitled to get possession of the suit property as they had lost their title to it by the death of Subbammal, on account of which fact the property became vested in the reversioners; but they were given a decree against defendant 2 for mesne profits before suit and for subsequent mesne profits from the date of the plaint till 23rd January 1921 when Subbammal died. Against this decree, two appeals were filed, one by the plaintiffs and the other by defendant 2. In the former the plaintiffs contended that their claim for possession can be resisted only by a reversioner and not by defendant 2, who, in the eye of the law, must be deemed to be a trespasser. In the latter appeal, defendant 2 as the appellant challenged the decree awarding mesne profits to the plaintiffs. The learned Subordinate Judge in the judgment now under appeal allowed the claim made by the plaintiffs for possession of two-thirds share of the suit properties and dismissed defendant 2's appeal regarding mesne profits. The Subordinate Judge held that, subsequent to the death of Subbammal, so long as the reversioners to the estate did not question the settlement deed, defendant 2, who is in the position of a trespasser, cannot by any means resist the claim of the plaintiffs. The plaintiffs have thus won their case on all the points urged by them.
3. The two second appeals, which I have now to decide, have been filed by defendant 2, one against the judgment and decree giving possession of the properties to the plaintiffs (that is S. A. 815 of 1925) and the other against the judgment and decree dismissing his appeal (that is S. A. 960 of 1925.) In S. A. 815 of 1925 Mr. Venkatasubramaniam has in a very careful argument strongly urged two contentions. The first is that the partition deed Ex. B does not put an end to survivorship as the daughters of Nallavadivu, at the time when they entered into the arrangement, thought that they had absolute estate in the properties which they were dealing with. It is argued that according to the trend of decisions, unless it is shown that the daughters were conscious of the rights of survivorship possessed by them and that they intended to give up such rights, no act on their part putting an end to the survivorship amongst themselves can be effective. This argument, if accepted, would show that there was no property over which Nallavadivu had a right of disposition and the plaintiffs' suit will have then to be dismissed in its entirety. The second argument is that assuming that survivorship was put an end to by the partition deed, still according to the decision in Srinivasa Chariar v. Raghava Chariar A.I.R. 1924 Mad. 676 confirmed in L. P. A. No. 10 of 1924, Nallavadivu cannot confer any title under Ex. 0 to the plaintiffs as against defendant 2 even though he is not a reversioner. If this argument is accepted then the Munsif's judgment declining to give possession but awarding mesne profits will have to be restored.
4. As regards the first point, in view of the decisions in Gomathi Ammal v. Kupputhayi Ammal : (1904)14MLJ175 and Kaliani Anni v. Thirumalayappa Mudaliar : AIR1927Mad115 , which support the proposition of law stated by the appellant's learned Counsel, the question whether the right of survivorship amongst themselves to each other's property was put an end to by the daughters of Nallavadivu will depend upon the construction of Ex. B, the partition deed. Does it purport to proceed on the assumption that the daughters thought that at that time they were absolutely entitled, to the property which they were dealing with? The document has to be construed as a whole. No doubt there are portions of it here and there which taken by themselves seem to lend support to the argument of the learned Counsel that the daughters were dealing with properties to which they thought they had absolute rights but, taking the document as a whole, I am satisfied that the daughters of Nallavadivu purported to deal only with limited estates. The two portions of the document specially emphasized are these (1):
The properties which have been willed away by her (Piramuthu) to all the five of us on 9th January last as per orders of our father' and (2)
Further we have divided according to the will, and following the will according to our pleasure, equally as shown in detail below all the other moveable and immovable property and cash with absolute rights from generation to generation and with power of gift, sale etc., etc.
5. It is argued that the reference to the orders of our father' is to the will said to have been made by Isakiadumperumal Pillai, which purported so confer a life estate on the mother Piramuthu and a remainder over to the five daughters. The will of the father has been found to be not true; we do not know what the exact provisions of that will were. No doubt the plaintiffs in their plaint put upon that will the construction now sought to be put upon it by the appellants; but, as I have said, the document will have to be construed as a whole, and as I shall show presently, there is at least one other passage in it referred to on behalf of the respondents which will lead to a different interpretation of it. Portions of the document referred to above must be interpreted and understood along with the sentence which appears towards the close of the document, viz.:
Among us no one has any kind of connexion with anybody else's share.
6. These words are absolutely clear and, have but one meaning and that is the renunciation of the right of survivorship. If sufficient effect is given to this statement, the correct construction of the document as a whole is not a matter of any difficulty. There can be no doubt, that, if the daughters thought that they had absolute estate in the properties they were dealing with, they would not have taken the trouble to say so clearly that their rights of survivorship are put an end to by the document. I am satisfied on a careful perusal of the document that it cannot be said that the daughters were not dealing with property to which they thought they had only limited owner's rights. It is conceded that the argument based upon the construction of this document was not raised in either of the Courts below; nor was it even suggested at any stage in the Court of the proceedings which ended in a remand by the High Court. This by no means precludes the appellant from raising the plea before me now, though Mr. Rama-swami Iyer argues that it does; but, at any rate, this circumstance will show how the parties and their counsel construed this document up to the time of filing the second appeal. I must overrule this argument and hold that the daughters of Nallavadivu by this document put an end to the rights of survivorship possessed by each in the other's property. It therefore follows that Nallavadivu had interest in the property which would enure for the lifetime of Subbammal, her last surviving sister. It is this interest that she has purported to convey to the plaintiffs and defendant 1 under Ex. C.
7. It is conceded that after the death of Subbammal, that is, after 23rd January 1921, the nearest reversioner could question the settlement; but no reversioner has as yet put forward any claim to the property. It is argued for the appellant, on the authority of Sreenivasa Chariar v. Raghava Chariar, that the principle that, except as against a reversioner, persons in the position of the plaintiffs have a good title to the property inasmuch as, according to the terms of the document, the plaintiffs' title would originate only after the death of Nallavadivu Ammal and not before her death, the point of distinction being that, when the settlement is effected by a widow or a daughter before their death, they would have at that time an interest in the property which they could convey to whomsover they like, whereas, if the document created an interest in the property which is to take effect after their death, the widow or the daughter would admittedly have no interest in the property to convey, inasmuch as their death puts an end to their title. To put the argument shortly, the contention is that the settlement Ex. 0 in this case is a will and therefore the plaintiffs derive absolutely no title to the property while defendant 2 has at least a trespasser's title by which he can resist the plaintiffs who have no title at all.
8. The principle enunciated is supported by the decision in Sreenivasa Chariar v. Raghava Chariar wherein it was held that a person who claims to be a legatee under the will of a Hindu widow bequeathing her husband's property derives title under the will, even to maintain a suit in ejectment against trespassers. The principle of the decision is thus explained by Wallace, J., referring to Bijoy Gopal Mukerji v. Krishna Mahishi Debi [1907) 34 Cal. 329: wherein it was held that:
an alienee not for necessity from a Hindu widow took with his alienation sufficient title to resist or eject a trespasser. The alienation in that case was before the widow's death and naturally is voidable, on good cause shown by the reversioners. But until the reversioners choose to attack it there is no obvious reason why the title, valid at its commencement, if not avoided, and ex hypothesi not yet avoided, should not remain valid until avoided. This seems to me a very different proposition to that of holding that the Hindu widow has the power over her husband's estate of alienation after her death, that she has the right to say to anyons 'after my death you shall enjoy my husbaned' estate' when at her death her interest in that estate and therefore her powers of disposition over it came to an end.
9. Applying this principle, what we have to consider is whether Ex. 0 creates an interest in presenti in favour of the plaintiffs in the suit properties or whether it was intended by Nallavadivammal that under this document the title of the plaintiffs in the property should commence only after her death; in other words, has Ex. C the effect of a will as contended for by the appellants or is it a settlement creating an interest in presenti as contended for by the respondent?
In the opening sentence of the document Ex. C is described as a
deed of settlement dated 30th March 1910, executed by Nallavadivammal.
10. It proceeds to say with reference to a cash item she has given
an absolute right from this day forward to the said minors Ramaswami Pillay and Arumugham Pillay
a little after that comes the statement:
I have hereby arranged that I should not alienate at all the properties mentioned in Schedule 2, herein, and that I should enjoy them for my life and that after my decease my aforesaid grandsons minors Ramaswami Pillai and Arumugham Pillay, and my son Shanmugham Pillai alias Subramania Pillai should get and enjoy them and to this effect I have given hereby a right. I shall enjoy for my life only the incomes from the outstandings items 3 and 4 of Schedule 1, etc, etc.
11. Mr. Venkatasubramaniam relies on the clause:
after my decease my aforesaid grandsons minors Ramaswami Pillai and Arumugham Pillai and my son Shanmugham Pillay alias Subramania Pillay should got and. enjoy them
to show that, in effect, Ex. C is a will and that, as stated in that sentence, the interest of the plaintiffs came into existence only after the death of the testator. It is argued by the respondents that, taking all the clauses together and keeping in view the fact that the document is termed a ' deed of settlement ' and not a will, what the executant purports to do by the deed is to make herself a life-tenant of the properties covered by it then and there, that is, on the date of its execution, create a vested remainder in the properties in favour of the plaintiffs and defendant 1 subject to her enjoyment of them during her lifetime It seems to me that this is the correct construction of the document inasmuch as it is stated specifically in the deed. I have referred to this sentence already that executant has no power to alienate the properties. If the document amounts to a will, then it is obvious that the power of the revocation is vested in the executant till her death. The distinction which I have sought to indicate finds support in the observations of their Lordships of the Privy Council in Mahomed Abdul Ghani v. Fakir Jahan Begam A.I.R. 1922 P.C. 281, where the learned Judges had to ascertain whether the document in that case, dated 7th March 1884, was intended to operate as a deed of gift or as a will. The relevant observations are these:
As their Lordships read the deed Munni Bibi by it made a gift to Lutiullah Khan of my moveable and immovable property, all my zamindari and lambardari estate, etc., reserving to herself for her life the usufruct of the property now in question, but making it clear that by that reservation of the usufruct she did not reserve to herself any right to transfer by mortgage or sale or gift any part of the property. As their Lordships read the deed it was intended to be and to operate as an immediate and irrevocable disposition of all Munni Bibi's moveable and immovable property and all her zamindari and lambardari estate mentioned in the deed and in the schedules to it, subject to the reservation for her own use during her lifetime of the usufruct of the property in question here and it must be construed as a deed of gift and not as a will.
12. By that reservation of the usufruct she did not reserve to herself any right of transfer by mortgage, sale or gift of any portion of the property. As their Lordships observed, it was intended to be an irrevocable disposition of all the properties in the schedule, subject to the reservation for her own use of the usufruct in question and it must be construed as a deed of gift and not a settlement. Using similar language it may be said with regard to Ex. 0 in this case that Nallavadivammal made a gift to the plaintiffs and defendant 1 of the properties mentioned, reserving for her-self a life-interest in them, and making it clear that by that reservation she did not reserve to herself any right to alienate the properties. She evidently intended the document to be and to operate as an immediate and irrevocable disposition of all her properties, subject to her enjoyment of them during her lifetime. In Gangaraju v. Somanna : AIR1927Mad197 this Court expressed the opinion that a Court will not treat an instrument in the form of a deed as a will unless there are special circumstances which compel the Court to do so; that the line between a will and a conveyance reserving a life-estate is a fine one and hard to define and that an important test is that of irrevocability. The terms of the document which the learned Judges had to construe in Chinta Ram v. Ram Samuja  3 C.W.N. 767, were very similar to the terms of the document before us. In that case, as may be seen from the head note, the deed of settlement provided as follows:
B (a Hindu widow) shall so long as she lives be the malik in possession of her 5 pies 5 kirants share and after B's death, M, generation to generation, in the character of the owner of the aforesaid share shall be in possession and occupation. B shall at no time have power to make a transfer of any kind.
13. The learned Judges held that the document did not merely create a widow's and reversioner's interest in the property, but conferred a life-estate on B and a vested remainder on M and that the interest acquired by M under the deed could be validly sold in execution. of a decree against him and that the settlement was not valid in law. The decision in Bhagabati Barmanya v. Kali Charan Singh  38 Cal. 468 may also be referred to in support of the respondent's contention. Applying these decisions it, seems to me that it is not right to construe the document as a will and, there-fore, the principle of the decision in Sreenivasa Chariar v. Raghava Chariar cannot be applied to the facts of this case.
14. In the result I must hold that the plaintiffs have a right to demand possession of the property from defendant 2, and that he cannot resist their claim on any of the grounds urged before me. S.A. 815 of 1925 must, therefore, be dismissed with costs. The memo of objection is not pressed and is dismissed with costs.
15. Second Appeal No. 960 of 1925 can be disposed of very shortly. If the plaintiffs are entitled to get a decree for possession as I have held in S. A. 815 when it must follow that they are entitled to get the past and future mesne profits upto 23rd January 1921, that is, the date of Subbammal's death, but it is argued that, having regard to what happened in the proceedings that led up to the second appeal to the High Court, viz., S. A. 323 of 1919, the claim of the plaintiffs for past profits should, at any rate, be disallowed; because then in the Court of first instance, the claim of the plaintiffs to past profits was disallowed on the ground that no evidence was adduced in support of it and that part of the decree was not appealed against, nor referred to in the memorandum of objections filed by the plaintiff before the High Court; but this objection cannot be given effect to in the face of the order of the High Court in second appeal that after the amendment ' the suit will be retried.' It was, therefore, open to the plaintiffs to raise the question when the case was tried a second time. The amount of Rs. 275 due as mesne profits was arrived at by agreement between the parties in the lower Court and so the correctness of that sum cannot be questioned now: see para. 38, p. 12. As I have found that the estate which the plaintiffs acquired under Ex, C would enure till the death of Subbammal, the plaintiffs are also entitled to subsequent profits upto 23rd January 1921 when Subbammal died. Here also the parties agreed to treat Rs. 365 as the amount due on account of subsequent mesne profits: see para. 39 of the appellate judgment.
16. It is also argued by the learned Counsel for the appellants that the additional 5th issue, viz., whether the properties in Schedule 1-A are sold away by the plaintiffs and are not in their possession, should have been considered by the lower Courts as that would necessarily affect the decree for mesne profits; but there is nothing to show that the point was urged before the lower Courts. However, as the respondents' learned advocate points out, the decree given to the plaintiffs by the appellate Court is only a preliminary decree for partition and the Subordinate Judge has remanded the suit for making a partition and passing a final decree. In these circumstances, if there is any substance in the contention now raised by the appellant, it is conceded that it may be urged at the time of passing the final decree by the District Munsif. This second appeal also must be dismissed with costs.