Case Note & Summary
The dispute concerned the testamentary bequest of agricultural land in vattam No. 149, village Nagampadi. One Viswanatha Iyer, who died in 1927, had two minor daughters and no male issue but treated his brother Seetharama Iyer's son, the appellant, as a foster son. By his will dated October 4, 1927, Viswanatha appointed Seetharama as guardian of his minor daughters and the foster son, left management of properties to Seetharama, and directed that upon his minor daughters attaining majority, Seetharama should give each of them one veli of nanja land and one veli of punja land in vattam No. 149, and deliver the remaining properties to the appellant upon his majority. It was also provided that Seetharama should pay the daughters income from the devised properties after the testator's death. After Viswanatha's death, Seetharama remained in possession, and after Seetharama's death in 1934, the appellant came into possession. After the daughters married and became major, the appellant paid them certain amounts, and later paid paddy and cash for their properties. In 1949, the daughters claimed possession of their lands and asserted a right under the will to select their respective one veli of nanja and one veli of punja land from the vattam. The appellant resisted, contending that the daughters were entitled only to lands of good and bad quality and that the right of selection was with Seetharama, not the daughters. The daughters filed a suit in July 1949 specifying lands they had selected. The trial court decreed the suit in their favour, and the Madras High Court dismissed the appellant's appeal, holding that the English rule of benevolent construction applied in India and that on the will's construction the right of selection was with the legatees. The Supreme Court granted a certificate and heard the appeal. The main legal issues were whether legatees have a right of selection in such a case, whether the English rule of benevolent construction applies in India despite Section 89 of the Indian Succession Act, 1925, and who had the right of selection under the will. The appellant argued that Section 89 made the bequest void for uncertainty and that the English rule was artificial and unnecessary. The respondents argued that the will clearly intended a gift and that the bequest could be made certain by selection. The Supreme Court held that Section 89 applies only to wills so indefinite that no definite intention can be ascribed at all; where the testator's intention to gift certain property is clear but there is some uncertainty because the property is more than bequeathed, the benevolent rule of construction should be applied to give effect to the intention. The court found that the testator had not himself selected the lands nor nominated a third person to select; therefore, the right of selection lay with the legatees. The court approved the English line of cases and the Madras decision in Narayanasami Gramani v. Periathambi Gramani, and held that the rule of selection by legatees was a common-sense rule applicable in India. The appeal was dismissed, and the daughters were held entitled to select one veli of nanja and one veli of punja land from vattam No. 149.
Headnote
A) Wills - Uncertainty - Indian Succession Act, 1925, Section 89 - A bequest is void for uncertainty only when intention cannot be ascertained; if uncertainty can be resolved by selection, gift is not void - The court considered whether the bequest of one veli nanja and one veli punja land out of a larger vattam was uncertain. Held that Section 89 applies only to wholly indefinite bequests, not where the testator's intent was clear and the bequest could be made certain by the legatees' choice. The rule of benevolent construction was a common-sense rule and applied in India. B) Wills - Legatee's Right of Selection - Indian Succession Act, 1925, Section 89 - Where testator devises a specified quantity out of a larger property without nominating a selector, the legatee has the right to choose - The testator gave daughters one veli of nanja and one veli of punja land in vattam No. 149, but the vattam contained more than that. Held that in such circumstances the daughters/legatees were entitled to elect their lands, rendering the bequest certain. C) Wills - Construction - Determination of Selector - Indian Succession Act, 1925, Section 89 - The will contained no words nominating Seetharama to make the selection, so the right of selection rested with the legatees - The appellant contended Seetharama was to give land as he chose. The Court rejected this, holding that absent clear nomination, the right of selection lay with the daughters. Held that the trial court and High Court were correct. D) Precedent - Foreign Rule of Construction - Indian Succession Act, 1925, Section 89 - English authorities and Indian decisions support legatee's choice to cure partial uncertainty - The Court approved Narayanasami Gramani v. Periathambi Gramani, discussed Bharadwaja Mudaliar, and followed Hobson v. Blackburn, Tapley v. Eagleton, Duckmanton v. Duckmanton, and Knapton v. Hindle. Held that Asten v. Asten and Bishop v. Holt were inapplicable.
Issue of Consideration
Whether the legatees under a will have a right to select land out of a larger area when the will does not expressly confer selection; whether the English rule of benevolent construction applies in India despite Section 89 of the Indian Succession Act, 1925; and whether on construction of the will the right of selection was with Seetharama or with the legatees.
Final Decision
Appeal dismissed; Supreme Court affirmed Madras High Court and trial court decree. Held that the bequest was not void for uncertainty; daughters were entitled to select one veli of nanja and one veli of punja land from vattam No. 149; right of selection was in legatees, not Seetharama. Section 89 applies only where intention cannot be ascertained; English rule of benevolent construction applies in India in appropriate cases.
Law Points
- Section 89 Indian Succession Act
- 1925
- Will or bequest not expressive of definite intention void for uncertainty
- English rule of benevolent construction
- Legatee has right of selection when testator does not nominate selector
- Common sense rule to give effect to testator's clear intention
- Uncertainty resolvable by selection does not void bequest
