LexE. V. BALAKRISHNAN versus MAHALAKSHMI AMMAL AND ANOTHER.
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x96.1 974 SUPREME COURT REPORTS [19611 E. V. BALAKRISHNAN v. MAHALAKSHMI AMMAL AND ANOTHER. (P. B. GAJENDRAGADKAR and K. N. WANOHOO, JJ.) Will-Land devised out of bigger area-Legatee's right to select -English rule of benevolent construction-Gift, if void for uncer- tainty-Indian Succession Act, r9z5 (XXXIX of r9z5), s. 89. 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 proviJed 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 corn;truction of the will in this case the right to choose was in the legatees and not in Seetharama. Held, thats. 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. 18 Mad.460,approved. Bharadwaja Mudaliar v. Kolandavefu 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, TapJty v. ' Eagleton, (1879) 12 Ch. D. 683, Duckmanton v. Duckmantan (1860) ,. , 5 H. & N. 2zo; 157 E.R. u65 and Knapton v. Hindle, [1941]. 1 Ch. D. 428, referred to. ' 3 S.C.R. SUPREME COURT REPOH,1'8 975 Asten v. Asten, [1~94] 3 Ch. D. 260 and Bishop v. Holt, [1900] 2 Ch. D. 260, held inapplicable. The gift in the present c;ase was not void for uncertainty within the meaning of s. 89 of the Succession Act for it could be made certain by the selection pf the daughters. The testator had clearly indicated what he intended his danghters to get but the difficulty arose because the area ohhe 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. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 86 of 1957. Appeal from the judgment and decree dated April 13, 1955, of the Madras High Uourt Jn A. S. No. 673 of 1950. M. C. Setalvad, Attorney-General for India, M. S. K. Sa:Jtri, S. Gopalaratnam and S. Nara:Jimhan, for '1'. K. '3undara Raman, for the appellant. A. V. Viswanatha Sa:Jtri and R. Gopalakrishnan, for the respondents. · 1961. February 24. The Judgment of the Court was delivered by ' '· BalakrisJinau v. Jf ahalalrsluni Ammal W ANCHOO, J.-This is -an appeal bri· a certificate w ... 11oo J. 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 Seetharl!.ma Iyer who died in 1934. The appellant is the third son of Seetharama. He was treated as a foster son (abhimanputra) by Viswana
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