K.N.WANCHOO - (1.) 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 4/10/1927. By this will he appointed his brother Seetharama as 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 or nanja land and one veli of punja land in vattam No. 149 in village Nagampadi 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.
(2.) 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 properties in May, 1942. Thereafter he used to pay 224 kalam of paddy and Rs. 175.00 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 nanja 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 C 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 up before us. 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 Seetharama 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 devisee was evolved to avoid uncertainty and make the subject of gift reducible to certainty. He also refers to S. 89 of the Indian Succession Act, No. 39 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 arise 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 he intends to bequeath and that indication is sufficient to identify the property bequeathed. In such cases 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 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,. The first example is where a man devised two acres out of four acres that lay together and it was held that this was a good devise and the devisee would elect. In another case a testator devised a messuage 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 devisee . The principle in these cases was evolved in Peck v. Halsey, (1726) 2 P. Wms. 387 : 24 ER 780. 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 chose, 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."
(3.) IN Tapley v. Eagleton, (1879) 12 Ch. D. 683 the testator devised "two houses in King Street" to the legatee. He however had three houses in King Street and the question arose whether the devise was bad for uncertainty. Jessel, M. R. held that the words meant "two of my houses inn King Street" and that two of the houses in King Street" and that two of the houses out 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, (1860) 5 H. and N. 219 : 157 ER 1165. 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, 1941 Ch. 428, 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 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 the benevolent rule should be applied to carry out the intention of the testator which is otherwise clear.;