Appeal No 86 of 1957
Appeal from the judgment and decree dated April 13 1955 of the Madras High Court in A section No 673 of 1950
M C Setalvad Attorney General for India M section K Sastri section Gopalaratnam and section Narasimhan for T K Sundara Raman for the appellant
A V Viswanatha Sastri and R Gopalakrishnan for the respondents
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 properties in May 1942
Thereafter he used to pay 224 kalam of paddy and Rs 175in 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  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 section 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 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 vs Blackburn1
The principle in these oases was evolved in Peck vs 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 vs 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    2 1726 2 P Wms 387  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 vs 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 vs Hindle2 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 section 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   2 1941 ch
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 vs 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 vs 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 1940 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 CJ 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 Mad 460
2 1915 29 MLJ 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 CJ 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 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 vs 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
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 vs 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 2 983
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 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 ie the testator had indicated with sufficient clarity what he wanted his daughters to get
The difficulty has arisen because vattam No 149 has 2138 acres of nanja land and 1699 acres of punja land while each daughter is given 666 acres each of nanja and punja lands
The gift cannot be said to be void for uncertainty within the meaning of section 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 there is no force in this appeal and it is hereby dismissed with costs
Appeal dismissed


Summary:
These appeals arose out of
two petitions filed in the High Court under article 226 of the Constitution challenging the constitutional validity of the Assam Fixation of Ceiling on Land Holding Act 1957
The High Court in dismissing the petitions held that the impugned Act was protected by Art 31A of the Constitution
The Act was a measure of agrarian reform and imposed limits on land to be held by persons in order to bring about its equitable distribution
The Act as originally passed as also its subsequent amendment received the assent of the President and this satisfied the requirement of the proviso to article 31A1a of the Constitution
The question therefore was whether the rights of the appellants which were taken away or abridged by the impugned Act were rights in relation to an estate within the meaning of article 31A2b of the Constitution
Held that the expression  rights  in relation to an estate in article 31A2b of the Constitution is of a very wide amplitude and construed liberally as it must be and considered in the light of the provisions of sections 3g and 9 of the Assam Land and Revenue Regulation 1886 the existing law relating to tenures and the relevant definitions contained in the impugned Act there could be no doubt that the rights of the petitioners which the impugned Act extinguished fell within the expression
Thakur Raghubir Singh vs The State of Ajmer 1959 Supp 1 SCR 478 Sri Ram Reim Narain Medhi vs The State of Bombay 1959 Supp 1 SCR 489 and Atma Ram vs The State of Punjab 1959 Supp 1 SCR 748 referred to
A colourable legislation is one in which the Legislature transgresses the lawful limits of its legislative powers and conceals its real purpose under the cover of apparently legitimate and reasonable provisions and thus seeks to do indirectly what it cannot do directly
K G Gajapathi Narayan Deo vs The State of 1954 SCR 1 referred to
725 It was not correct to say that the impugned Act was a colourable legislation whose concealed purpose was to make profit by disposing of land in the manner provided by Ch
III or that by pith and substance it was a profit making measure or that sections 16 and 18 of the Act were devices to that end
This is broadly contradicted by the whole object of the Act which is a measure of agrarian reform writ large on all its provisions and clearly negatived by section 4 Of the Act which provides that in no case can the payment made by the tenant in getting the settlement exceed the amount of compensation payable by the Government in acquiring the land