Judgment

K. N. WANCHOO, JJ.

( 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.

( 3 ) 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.

( 4 ) 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 urge