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PETITIONER: E.   V. BALAKRISHNAN

       Vs.

RESPONDENT: MAHALAKSHMI AMMAL AND ANOTHER.

DATE OF JUDGMENT: 24/02/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1961 AIR 1128            1961 SCR  (3) 974

ACT: Will-Land  devised  out of bigger  area-Legatee’s  right  to select English rule of benevolent construction-Gift, if void for uncertainty-Indian Succession Act, 1925 (XXXIX of 1925), s. 89.

HEADNOTE: One Viswanatha Iyer who had two minor daughters but no  male issue treated his brother Seetharama Iyer’s son, the  appel- lant,  as a foster son and before his death made a  will  by which  he  left  the management of  his  properties  to  his brother  and  provided that as soon as his  minor  daughters attained majority Seetharama should give them each one  Veli of  nanja land and one Veli of punja land in vattam No.  149 in  village  Nagampadi  and should give  possession  of  the remaining  property  to  the  appellant  on  his   attaining majority.   The daughters after attaining  majority  claimed possession  of their land alleging that they  were  entitled under the will to select their respective one Veli of  nanja land  and one Veli of punja land out of the land  in  Vattam 149.   A suit filed by the daughters on that allegation  was decreed  by the trial court and the decree was  affirmed  by the  High Court holding that the English rule of  benevolent construction  that a legatee has a right to choose  in  such circumstances applied to India and that on the  construction of  the  will in this case the right to choose  was  in  the legatees and not in Seetharama. Held,  that s. 89 of the Indian Succession Act, 1925,  which lays  down  that "a will or bequest not  expressive  of  any definite intention is void for uncertainty", applies only to those  cases  where a will is so indefinite that it  is  not possible  to give any definite intention to it at  all;  but there  may  be  wills  which use  words  which  are  not  so uncertain  that a definite intention cannot be  ascribed  to the testator under those words and it is to meet such  cases that the English rule of selection by legatees was  evolved. This  rule  of  benevolent construction which  is  based  on common  sense and by which wills not quite uncertain can  be made  certain cannot be called an artificial rule and  there is  no  reason  why it should not be extended  to  India  in appropriate cases. Narayanasami  Gramani v. Periathambi Gramani, (1895)  I.L.R.

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18 Mad. 460, approved. Bharadwaja  Mudaliar  v.  Kolandavelu  Mudaliar,  (1915)  29 M.L.J. 717, discussed. Hobson  v.  Blackburn, (1833) 1 MY. & K. 571; 39  E.R.  797, Peck v. Halsey, (1726) 2 P. Wms. 387; 24 E.R. 780, Tapley v. Eagleton,  (1879) 12 Ch.  D. 683, Duckmanton  v.  Duckmanton (1860)  5 H. & N. 220; 157 E.R. 1165 and Knapton v.  Hindle, [1941] 1 Ch. D. 428, referred to. 975 Asten  v.  Asten, [1894] 3 Ch.  D. 260 and Bishop  v.  Holt, [1900] 2 Ch.  D. 260, held inapplicable. The  gift in the present case was not void  for  uncertainty within  the  meaning of s. 89 of the Succession Act  for  it could  be  made certain by the selection of  the  daughters. The  testator  had clearly indicated what  he  intended  his daughters  to get but the difficulty arose because the  area of the vattam was more than what was given to the daughters; it  must be held in the circumstances of the case  that  the testator  intended that each daughter would select the  land devised out of the vattam.  There were no words in the  will from  which  it  could  be  inferred  that  Seetharama   was nominated by the testator to make the selection.

JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 86 of 1957. Appeal from the judgment and decree dated April 13, 1955, of the Madras High Court in A. S. No. 673 of 1950. M. C. Setalvad, Attorney-General for India, M. S. K. Sastri, S. Gopalaratnam and S. Narasimhan, for T. K. Sundara  Raman, for the appellant. A.   V.  Viswanatha  Sastri and R. Gopalakrishnan,  for  the respondents. 1961.  February 24.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal on a certificate  granted  by the  Madras High Court.  The facts lie in a  narrow  compass and may be briefly stated.  One Viswanatha Iyer, who died in 1927  had a number of properties.  He had no male issue  but left two daughters surviving him who were minors at the time of his death.  He had a brother Seetharama Iyer who died  in 1934.  The appellant is the third son of Seetharama.  He was treated as a foster son (abhimanputra) by Viswanatha and was also minor at the time of his death.  Viswanatha made a will on  October 4, 1927.  By this will he appointed his  brother Seetharama  a guardian of his minor daughters as well as  of his foster son.  He left the management of his properties to his brother and provided that as soon as his minor daughters attained  majority Seetharama should give to them  per  head one veli of nanja land and one veli of punja land in  vattam No. 149 in village Nagampadi 976 and further provided that the said Seetharama should deliver possession  of  the remaining  properties  to  Balakrishnan, immediately  after  he  attained  majority.   It  was   also provided in the will that Seetharama should pay to the minor daughters  the  income from the properties devised  to  them after the death of the testator. It appears that after the death of the testator,  Seetharama remained   in  possession  of  the  entire  properties   and thereafter   on  his  death  Balakrishnan  came  to  be   in possession of them.  It appears that after the two daughters were  married  and  became  major,  Balakrishnan  paid  them certain  monies  as  due to them out of the  income  of  the

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properties  in  May, 1942.  Thereafter he used  to  pay  224 kalam of paddy and Rs. 175/in cash towards their  properties after  deducting  the  kist  each year.   In  1949  the  two daughters claimed possession of their lands and their  claim was  that  they were entitled in law having  regard  to  the provisions  of the will to select their respective one  veli of anja land and one veli of punja land from out of the land in  vattam 149.  The appellant did not accept this right  of selection and contended that the daughters were entitled  to their  lands  taking  into account lands  of  good  and  bad quality.   Consequently,  the daughters filed this  suit  in July,  1949,  and claimed in Schedules and D of  the  plaint certain  properties  out  of vattam 149  on  the  ground  of selection  made  by  them.  The suit  was  resisted  by  the appellant who was prepared for a partition of land according to  quality  but was not prepared, to accept  the  right  of selection   claimed  by  the  daughters.   It  was   further contended on his behalf that in any case on the construction of  the will it was for Seetharama to give such land  as  he chose to the daughters and not for the daughters to make the selection.   The  trial court upheld the contention  of  the daughters and decreed the suit.  There was then an appeal to the  High  Court which was dismissed.   The  appellant  then applied for leave to appeal and was granted ’a  certificate; and that is how the matter has come tip before us. 977 Two  questions  arise. for decision in the  present  appeal. The  first  is whether the legatees have a right to  make  a selection in a case of this kind.  The second is whether  on a  construction  of the will the right of selection  was  in Seetharams or in the legatees.  The High Court has held that the  English rule of benevolent construction that a  legatee has  a,  right to choose in such  circumstances  applies  to India also and has further held that on the construction  of the  will  in  this  case the right to  choose  was  in  the legatees and not in Seetharama. The  learned  Attorney-General on behalf  of  the  appellant contends  that the English rule of construction which  gives the  right  of selection to a devise was  evolved  to  avoid uncertainty  and  make  the subject  of  gift  reducible  to certainty.  He also refers to a. 89 of the Indian Succession Act,  No.  XXXIX of 1925, which lays down that " a  will  or bequest not expressive of any definite intention is void for uncertainty  "  and  urges that in  view  of  this  specific provision  in  the Succession Act it was  not  necessary  to import  the  artificial  rule  of  construction  evolved  in England  to avoid uncertainty.  Now the provision of  s.  89 applies  only to those cases where a will is  so  indefinite that it is not possible to give any definite intention to it at  all.   The illustration to that section  shows  that  it applies  only  where  it  is  impossible  to  ascertain  the intention  of the testator from the words used in the  will. For  example,  where the will uses the words  "  I  bequeath money, wheat, oil or the like, without saying how much ", it is  obviously impossible to ascertain the intention  of  the testator as to the quantity bequeathed and therefore such  a will would be void for uncertainty.  But there may be  wills which  use words which are not so uncertain that a  definite intention  cannot  be ascribed to the testator  under  those words.   It is to meet such cases that the English  rule  of selection   by  legatees  was  evolved.   There  are   three possibilities  which may &rise in cases where a will is  not so  uncertain as not to be capable of ascribing  a  definite intention  to the testator.  In the first case the  testator himself may indicate what

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978 he  intends  to bequeath and that indication  is  sufficient identify the property bequeathed.  In such cases to there is no  difficulty,  for  the  testator  has  himself  made  the selection  and the selection must be given effect  to.   The second case may be where the testator himself does not  make a selection but nominates a, third person who may select the object of his bounty meant for the legatee.  In such a  case also there can be no difficulty and the person so  nominated will  make  the  selection.  The third  case  is  where  the testator has not indicated the selection himself and has not nominated  a, third person to make the selection; but  still the  gift is not so uncertain as to be void.  It is in  such cases  that English Courts have evolved the benevolent  rule that  the  testator intended to give the  selection  to  the legatee  and once the selection is made by the  legatee  the will takes effect.  This case has been exemplified in Jarman on  Wills, 8th edition, Vol.  I, p. 477.  The first  example is where a, man devised two sores out of four sores that lay together and it was held that this was a good devise and the devise  would elect.  In another case a testator  devised  a message  and  ten acres of land surrounding it,  part  of  a larger  number  of acres, the choice of such ten  acres  was held  to be in the devise (see Hobson v. Blackburn(1).   The principle in these oases was evolved in Peck v. Halsey  (2). In  that case the testatrix had bequeathed some of her  best linen to her grandchildren.  It was held that the legacy was void for uncertainty and the Master of the Rolls said  that" if  it were such or so much of my best linen as they  should choose,  or  as my executors should choose  for  them,  this would  be  good,  and  by the  choice  of  the  legatees  or executors is reducible to a certainty." In Tapley v. Eagleton (3), the testator devised " two houses in  King  Street  " to the legatee.  He  however  had  three houses  in  King Street and the question &rose  whether  the devise was bad for uncertainty. Jessel, M. R. held that  the words meant " two of my (1)  (1833) 1 MY & K. 571; 39 E.R. 797, (2)  (1726) 2 P. Wms. 387 ; 24 F. R. 780. (3)  (1979) 12 Chz D 683. 979 houses  in King Street " and that two of the houses  oat  of three passed to the legatee who was entitled to elect  which two  he would take.  Reliance in this case was placed on  an earlier  case  Duckmanton  v.  Duckmanton  (1).   There  the testator  had  two  closes of land  in  Ridgway  Field.   He devised  one to one son and another to another  son  without indicating  which was to go to which son.  It was held  that the  devise was good and the case was one for election,  the first  devisee having the first choice.  The same  view  was taken  in Knapton v. Hindle(2), which was a  more  difficult case  inasmuch  as the devise was of one house each  to  the nephews  and  nieces of the testatrix  without  names  being mentioned,  The court however held following the analogy  of Roman  law  that under the will there was a  choice  to  the nephews  and nieces and that in case of  disagreement  among them, the choice was to be determined by lots. It is urged that this is an artificial rule of  construction and  there is no reason to apply it to India.  The rule  was evolved by English Courts in order that where the testator’s intention  to make a gift was clear and there was only  some uncertainty (but not such complete uncertainty as could  not be  resolved at all) that may be avoided by giving a  choice to the legatee.  The rule seems to be a common sense rule to give  effect to the intentions of a testator  which  clearly

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show  that he intended to bequeath something which could  be made  definite by choice.  We do not see why such a rule  of common  sense  to give effect to wills which are  not  quite uncertain and which can be made certain should be called  an artificial  rule.   We also do not see  why  in  appropriate cases  this rule of common sense should not be  extended  to India.   We  have  already said that it  is  only  when  the uncertainty is so great that there is no way of resolving it and  finding  out the intention of the testator that  s.  89 comes  into  play.  But where the uncertainty is of  a  less degree  and  the intention of the testator to  gift  certain property  is  clear,  though there may  be  some  difficulty because  there is more property of that kind  than  actually bequeathed, that (1) (1860) 5  N. 219; 157 E.R. 1165,  (2) [1941] ch. 428. 125 980 the  benevolent  rule  should be applied to  carry  out  the intention of the testator which is otherwise clear. The matter has come up for consideration in two cases in the Madras High Court.  In the first case, Narayanaswami Gramani v.   Periathambi  Granmni  (1),  the  testator  owned   land measuring  one kani and three quarters.  He made a  will  by which  he devised one kani thereof to the plaintiff in  that suit.   The  plaintiff  filed a suit  to  recover  one  kani selected by him out of the land in quest-ion; and the  point to  be  decided was whether the plaintiff  was  entitled  to select  and thus make the bequest which the testator  wanted to give him certain.  It was not urged in that case that the gift was altogether void for uncertainty, for the  intention of  the testator to give one kani out of one kani and  three quarters  of land was clear and certain and difficulty  only was  as to which part of one kani and three quarters  should go  to  the legatee.  The High Court held in  that  case  as follows:-                "In  a case like the present the devisee  has                             clearly the right to choose.  It has been  lon g               settled  that  if a man devises two acres  out               of  four  acres that lie together, this  is  a               good  devise  and the  devisee  shall  select.               (Jarman on Wills, 5th Edition, page 331)."               The   matter  came  up  again  in   Bharadwaja               Mudaliar v.     Kolandavelu Mudaliar (2).   In               that  case the will gave to the legatee "  six               acres  of  good irrigated nanja lands  in  the               village  of  Pudur ". The testator  had  19.40               acres of   land answering to the  description.               The  legatee  died  without  having  made  the               selection.  His heir brought a suit and wanted               to  select.  It was held that the bequest  was               not  void  for uncertainty and that  the  heir               would  be entitled to six acres  on  partition               but  was  not entitled to  selection.   Wallis               C.J. remarked that-               "in  England  such a bequest would  have  been               held   void  for  uncertainty  but   for   the               benevolent  rule  of  construction  that   the               testator  is intended to have left the  choice               to the legatee."               He also pointed out that the accepted view  in               England was that the will could not be read as               intending that               (1) (1895) I.L.R. 18 Mad. 460.

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             (2) (1915) 29 M.L.J. 717.               981               heirs  of a legatee should be allowed to  make               the election in the event of the legatee dying               without   having   made   it.   He   therefore               distinguished the earlier case of Narayanasami               Gramani (1) on that ground and then went on to               remark about the English rules as follows:-               "These are, however, somewhat artificial rules               to apply to the will of a Hindu  agriculturist               who  was no doubt familiar with  the  ordinary               process of partitioning lands by the Court  in               a  partition  suit and I think  it  much  more               likely  that  his intention was  that  in  the               absence  of  agreement the lands  in  question               should  be partitioned by the court than  that               the legatee should be left to make a selection               for himself.-" As  pointed out by the High Court in the present case  these observations  of  Wallis C.J. were Unnecessary in  the  case before him, as he was dealing with a case where the  legatee had  died without making the selection.  We think  that  the further English rule that the legatee’s heir cannot make the selection  is also based on common sense, for  the  testator never  had the legatee’s heirs in his mind when he made  the bequest  his  intention  could  only  be  in  a  case  where selection  was  necessary that the legatee should  make  the selection.   It seems to us therefore that where it  is  not possible  to  say  on the construction of a  will  that  the testator  himself  indicated the selection  or  appointed  a third  person  to make the selection but still  intended  to make a gift which could be made certain by selection made by the  legatee, the English rule of construction that in  such cases the testator intended the legatee to select should  be applied  in  India  also and the  decision  in  Narayanasami Gramani’s case (1) is correct.  The fact that there are ways of partition available to agriculturists in India would make no difference to the application of the rule, for we take it that  there  are ways of partition available to  parties  in England  also.   The application of this  rule  would  avoid unnecessary  litigation also, for once it is known  that  in such cases the selection is with the legatee the  difficulty arising  out of such wills could be easily resolved  without recourse to courts.  For this reason (1)  (1895) I.L.R. 18 Mad. 460. 982 also  we think that this rule of benevolent construction  of wills of this description should be applied to India also. In this connection we may refer to two other cases to  which the learned Attorney-General drew our attention.  The  first is  Asten  v.  Asten (1).  That was a case  where  the gift failed  for uncertainty.  The testator had made bequests  to his several sons of certain houses.  In each case the  house was  described  as "all that newly built  house,  being  No. Sudeley Place, Cotsfield Road." There were four newly  built houses  in Sudeley Place belonging to the testator  and  the description  of  all  the houses was  the  same.   In  those circumstances  it  was  held  that the  will  was  void  for uncertainty, for there was no way by which the will could be made certain.  The intention of the testator was clearly  to select  the  house  himself  to be given  to  each  son  and therefore there could be no question of the legatees  making the  selection in the order in which they were named in  the will.   This  case  does not in any  way  detract  from  the benevolent  rule  of construction evolved  in  English  law.

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Romer  J. himself pointed out that he was prepared  to  hold that where a testator save one of similar properties to each of  several  legatees  without  saying  anything  more,   he intended  prima facie to give the right of selection to  the legatees according to the priority of the bequests.  But  he pointed out that " it is, of course, essential that the will should  not  show  that the  testator  was  bequeathing  any particular one of the properties to the legatee who  desires to select, for the selection by the testator is incompatible with the view that he intended the legatee to select." That was a case where on the construction of the will it was held  that the testator himself intended to select  but  the selection failed, because of the uncertainty in the will. The  second  case is Bishop v. Holt (2).  In that  case  the testatrix  by  her  will gave her 140 shares  in  the  Crown Brewery  Company to the legatee for her life with  remainder in trust for her children.  She held 40 fully paid-up shares and 240 partly paid-up shares in (1) (1894] 3 Ch.  D. 260.        (2) [1900] 2 Ch.  D. 620. 983. the  Brewery.  A question arose as to from where  these  140 shares were to come.  It was held that they were to come out of  the  240 partly paid-up shares on the  ground  that  the testatrix’s intention was clear, for she only held 40  fully paid up shares and it could not have been intended that  140 shares should have come partly from the fully paid-up shares and partly from partly paid-up shares.  The decision in that case  was that the testatrix’s own selection could be  spelt out  of  the will and once that was so no  question  of  any selection  by the legatee &rose.  This case  therefore  does not in any way weaken the rule of benevolent construction by which  the legatee is entitled in certain  circumstances  to make  a  selection.   These  two  cases  therefore  have  no application  to  the facts of the present case  and  do  not detract  from the rule of benevolent construction  in  cases where  the  testator has not made or intended  to  make  the selection  himself  or has not nominated a third  person  to make the selection. This  brings  us to the second point,  namely,  whether  the testator  on  the  construction of this  will  intended  his daughters  to  select.  The main argument on behalf  of  the appellant  in  this  connection  is  that  on  a  fair   and reasonable  construction of the will the  testator  intended his brother Seetharama to select for the daughters and  that as  his brother had died without making the  selection,  the lands  devised to the daughters must now be  partitioned  in the  ordinary  course.   It  is not  disputed  that  if  the intention  of the testator was not to give the selection  to his  brother,  the case would clearly be of the  third  kind indicated by us above and the daughters would have the right to  select.  We have already pointed out that by  this  will the  testator  appointed Seetharama as the guardian  of  his minor  daughters as well as of his foster son,  namely,  the appellant.  Then he said as follows:-                "He (Seetharama) shall as soon as the  minors               attain  majority give to the  female  children               per head immediately they attain majority  one               veli of nanja land and one veli of punja  land               in  the  said  vattam  No.  149  out  of   the               aforesaid properties and he shall               984               deliver possession of the remaining properties               to  my  son  immediately  after,  he   attains               majority.  " The argument is that these words show that it was Seetharama

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who  was to make the selection and give the devised land  to the two daughters and stress is laid on the words "he  shall give  to  the female children." These words  are  contrasted with  the  words  "  he  shall  deliver  possession  of  the remaining properties to my son." Now it is clear that  there are no express words in the will which show that  Seetharama shall  select  the  land  to  be  handed  over  to  the  two daughters.   Can it be said merely because in one  case  the words used are " he shall give to the female children "  and in  the’  other  case  the  words  are  "he  shall   deliver possession  to my son" that by the use of the  former  words the testator was giving the right of selection to Seetharama ?  As we read the will it seems to us that though the  words are  different in the case of daughters as compared  to  the words used in the case of the foster son, the meaning of the testator  is the same, namely, that Seetharama who  was  the guardian of the three children will be in possession so long as   the  three  children  were  minor  and  shall   deliver possession  of  the properties to the children as  and  when they became major.  We do not think that the testator  meant something different in the case of the daughters because  he used  the words " he shall give to the female children "  in contrast    with    the   words   "   he    shall    deliver possession..........  " used in the case, of the  appellant. In  the  context  the words in our opinion  mean  the  same. Therefore the direction of the testator was that as soon  as the  children  obtain  majority the  guardian  will  deliver possession  to  them of the respective lands  bequeathed  to them.  We cannot therefore read this sentence in the will to mean that the testator was giving the right of selection  to Seetharama  in  the  case  of  the  property  which  he  was bequeathing  to his daughters; nor is there anything in  the words of the will which would lead to the inference that the testator  intended that the daughters would get their  lands after  taking into account the good and bad quality  of  the land.  If that were the intention of the testator he  should have given them a share in the 985 vattam  (No. 149) and not a, specific area of land  of  both nanja and Punja lands.  Or be could have made this  position clear, even if he wanted to indicate the extent of land,  by using  words which would indicate that good and bad  quality land would be taken into account in computing the area to be given to the daughters.  There are no words in the will from which  it can be inferred that Seetharama was  nominated  by the testator to make the selection ; nor are there any words from  which  it can be inferred that the  testator  intended that  the daughters should get the area of land  devised  to them  taking  into account the good and  bad  quality.   The case, therefore, squarely comes in the third class of  cases mentioned above by us, i.e., the testator had indicated with sufficient clarity what he wanted his daughters to get.  The difficulty has arisen because vattam No. 149 has 21.38 acres of  nanja  land  and 16.99 acres of punja  land  while  each daughter is given 6.66 acres each of nanja and punja  lands. The  gift cannot be said to be void for  uncertainty  within the  meaning  of s. 89, for it can be made  certain  by  the selection  of the daughters and is not so uncertain that  it is  impossible to make it certain.  The vattam is  indicated from which the land is to come, the area of nanja and  punja lands  to be taken by each daughter is fixed.  But the  area of  two kinds of land in the vattam is more than that  given to the daughters; it must in the circumstances be held  that the  testator  intended that each daughter will  select  the land devised out of the vattam.  In this view of the matter,

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there is no force in this appeal and it is hereby  dismissed with costs. Appeal dismissed. 986