Case: E.V. Balakrishnan Vs. Mahalakshmi Ammal &amp; Another

out of the will and once that was so no question of any selection by the legatee arose. 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.11. 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. The 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 deliver possession of the remaining properties to my son immediately after he attains majority."12. 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 vattam (No. 149) and not a specific area of land of both nanja and punja lands. Or he 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 otherwisepointed 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 legatees heir cannot make the selection is also based on common sense, for the testator never had the legatees 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 Gramanis case, ILR 18 Mad 460 is correct. The fact that there are ways of partition available to agriculturists in India would make to 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 also we think that this rule of benevolent construction of wills of this description should be applied to Indiatwo 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 theis 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, theit 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 twowe 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 vattam (No. 149) and not a specific area of land of both nanja and punja lands. Or he 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.