V. Sethuraman, J.
1. One Ammamuthu Ammal executed a will on 28th April, 1958 in respect of her properties. Briefly stated, in the will, she gave the properties covered by the present suit, to one Vitoba, the foster daughter, absolutely, after her life-time and after the life-time of her husband Govindaraju Chettiar. She died soon thereafter. The properties covered by the suit were to be in the management of her husband, Govindaraju Chettiar. The legatee, Vitoba was also to look after the said Govindaraju Chettiar during his lifetime. Govindaraju Chettiar is said to be presently living in a place called Seychelles. Where this place is, is not clear. Under the will, this place is referred to as being near Mahe But, anyway, this need not deter further consideration of the facts of this case.
2. Govindaraju has got two agents in whose favour he has given power-of-attorney They are Kumarasami and Appa(sic)urai Chettiar respectively. The plaintiff as a lessee having executed a document in favour of the said power-of-attorney agents on 12th July, 1968 (Exhibit A-1). The first defendant claims to be a lessee under a lease deed executed on 10th April, 1968 (Exhibit B-1) in favour of Vitoba, the foster-daughter. The plaintiff, as the lessee from Govindaraju Chettiar or his agents, filed the suit for permanent injunction or, in the alternative for recovery of possession of the suit property and for future profits. He impleaded the first defendant who claims to be a lessee from Govindaraju and who interfered with his rights. The third defendant was Vitoba, the foster-daughter, the fourth defendant is her husband and the second defendant was impleaded because of some interest in the lands but he has disclaimed any interest therein.
3. The trial Court went into the question of the construction of the will and reading the will as a whole and the cumulative effect thereof, it held that a life-interest was given to Govindaraju Chettiar and that during his life-time he alone could be in possession of and management of the property. According to the trial Court, the interest taken by Vitoba, the foster-daughter, was only a vested remainder Subsequent to the death of Ammamuthu Ammal, the testator, the trial Court s finding is that her husband, Govindaraju Chettiar, was in possession of the properties. It held that this was a case where the person who was entitled to possession of the property was ousted from possession and that the plaintiff was, therefore entitled to recover possession from the defendants.
4. On appeal, the learned Subordinate Judge confirmed the conclusions of the trial Court on the construction of the will viz., that Govindaraju Chettiar was entitled to a life estate. Though the Plaintiff was not m possession as a lessee under Exhibit A-1, the will, the appellate Court held that he would be entitled to recovery of possession. It was also held that an alternative relief of recovery of possession should not be disallowed on the ground that the plaintiff would not be entitled to the relief of permanent injunction.
5. Having lost in both the Courts below, the defendants have filed this appeal. The learned Counsel for the appellants submitted that under Exhibit A-4, the will, Govindaraju had only the right t(sic) manage the properties, that this was a right personal to him, that he could not delegate it to his agents and that, therefore he could not maintain the present suit for possession. On the construction of the Will, the submission by the appellants was that there was no vesting of property in Govindaraju Chettiar, that he was not even a life-interest holder and that Vitoba, the foster daughter, had a vested right over the properties as a result of which she could exercise the power to grant a lease.
6. I have gone through the will as a whole. The learned District Munsif has extracted the relevant portion in paragraph 8 of his judgment. The interest of Govindaraju, the husband of the testator, is referred to in two places. At first it is stated that Vitoba should maintain or look after (sic) the said Govindaraju Chettiar. It is also stated that after her life-time, her husband, Govindaraju Chettiar, should manage the properties. At the end of the will it is mentioned that the bequest contained under the will would come into effect after the life-time of herself and also her husband. Taking the will as a whole, I am satisfied that the concurrent construction of the two courts below viz., that Govindaraju had a life-interest in the properties is correct and the submission of the learned Counsel for the appellants that he had no interst in any properties would have the result of partial intestacy during the lifetime of Govindaraju Chettiar. It is settled law that a will should be so construed as to avoid any intestacy. The testator by executing the will is presumed to deal with the properties effectively from the time when the will comes into effect. As pointed out by the learned Counsel for the respondents, if, really, there is any kind of intestacy, during that period it is Govindaraju who would be the heir of his wife and who would have the rights in the properties. Anyway, it is unnecessary to go into this aspect. Taking the will as a whole, and gathering the intention of the testator from the words used in the will, I am satisfied that the concurrent construction of the Courts below that Govindaraju Chettiar had life interest in the properties is the proper and reasonable one. There is absolutely, no subsatance in the submission that the right to manage during his lifetime vested in Govindaraju Chettiar is only a personal right. Where a person is not in a position to, immediately, attend to the affairs of which he is put in charge under the will, he has necessarily, to carry out his charge through the mechanism of others. If the construction contended for by the appellants is to be accepted, then, the result would be that when once Govindaraju was away from the village, the properties covered by the will could be occupied by any one without any kind of protection whatsoever. It is not possible to accept this contention. The power-of-attorney agents are merely those persons who look after the properties or behalf of Govindaraju Chettiar when he was away, and therefore, there is nothing per se wrong in Govindaraju making arrangements for the management of the properties during the period of his absence, through his own agents.
7. The learned Counsel for the appellants then, submitted that this is a case where possession was not with the plaintiff or any person through whom he claims. The Courts below have found that Govindaraju was in possession of the properties subsequent to his wife's death. The plaintiff has executed a lease in favour of Govindaraju through his power-of-attorney agents. As pointed out in Mulla's Transfer of Property Act, 6th Edition, page 645, a lease is not a mere contract, but is a transfer of an interest in land and creates a right in rem'. Such an interest is good against the whole world irrespective of notice. The lessee need not be in possession when he executed the lease and as lessee he can recover possession from a trespasser.
8. The learned Counsel for the appellants submitted that the lease was a nudum pactum because neither the lessor nor the lessee was in possession of the properties. The question of nudum pactum would not arise in case of leases as it is not a mere contract. The lessee who has been let into the property can seek to recover possession against the person who is actually a trespasser. Any contrary conclusion would only leave an open field for a trespasser to play upon. This cannot be encouraged and a lessee who is not in possession can maintain a suit for the purpose of recovery of possession which he is entitled to. If he is not a person who has a valid lease in his favour, then certainly the question of his capacity to recover possession can be contested. But where, as here, the lease is a valid one and the lessee has valid rights, it is open to him to maintain a suit for recovery of possession.
9. At this stage, I may notice one more contention taken on behalf of the appellants, namely, that the non-impleading of Govindaraju in the present proceedings is fatal to it. This objection has not been taken at any earlier stage but finds a place only in the grounds of appeal before this Court. No proper explanation was forthcoming as to why such a plea was not taken at any earlier stage. I do not think it is possible to entertain the plea at this belated stage.
10. There was some reference to the plaintiff being a cultivating tenant and the suit not being maintainable. I do not think that there is any substance in this plea. This is not a case where the proceeding is against the cultivating tenant in respect of rights which are safeguarded under the tenancy legislation. This is a case where the tenant, in order to exercise his right as a tenant, is seeking to recover possession from a stranger. Such a suit is not barred by any provision of tenancy legislation.
11. In the result, I am satisfied that Govindaraju Chettiar had a life-interest in the properties, that his right to management could be exercised even when he was away and that he can exercise those rights through his power-of-attorney agents if he happened to be away from his village. The suit itself is maintainable as a lessee can seek to recover possession of the properties of which he is entitled to be in possession. Thus there is no impediment either to the maintainability of the suit or to the grant of prayer as has been done by the Courts below.
I see no reason to interfere. Hence this second appeal is dismissed with costs. No leave.