> '

3 S.C.R.

SUPREME COURT REPORTS 947

(3) The box may be opned once in a month or oftener as desired by the pujaris but not more than once in a week.

(4) The amount found in the box may be noted by the management; the whole of it should be handed over to the chosen representative of the pujaris on behalf of all the pujaris in case the ex. penditure for dhoop, deep and neivedya for the period prior to the opening has been met by the pujaris.

In case however sucli expenditure has been met by the management, the balance after deducting such expenses, shall be immediately paid to the chosen representative of the pujaris on behalf of them all.

The last provision has been made to make it clear that the management will not t:tke away the money but immediately give it to the representative of the pujaris for distribution among them. The provisions of the Public Trusts Act will be satisfied. in that the management will be in a position to know how much has gone to the pujaris including the amount spent on dhoop, deep and neivedya.

This provision will also take away any objection about there being interference with the private rights of the pujaris under the agree. ment of 1872.

We therefore allow the appeal, set aside the order of the High Court and restore the revised scheme subject to the modifications suggested by us above.

The Districi Judge will see that these modifications are embodied in the revised scheme.

In the circumstances of the case we order parties to bear their own costs.

Appeal allowed.

JIBON CHANDRA SARMA DOLOI

AN ANDI RAM KALITA AND OTHERS. (P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)

Brahmollar land-If alienable-Burden of proof-Assam Land and Revenue Regulation, I886 (Reg. I of z886), ss. 3(g), B(r)(a), 9.

The plaintiff-appellant filed a suit alleging that the lands in •uit were unauthorisedly transferred to the \)redecessors in mle

l?t

I96I

Raje Anandrao v.

Shamrao

wa.nchoo J.

February a3.

SUPRE.\fE COURT REPORTS [1961]

r96r of the respondents. His contention was that the lands were granted to the Bardeuries (officials) of a certain ancient temple in Jibon Chandrn Assam in order to enable them to render service to the deities Sarma Dotoi installed in the temple and as such the lands were inalienable to v. straners other than the Bardeuries.

AnandiRain f\alita Held, that in view of the history of land tenure in Assam and by virtue of the relevant statutory provisions of Assam Land and Re,•enue Regulation (Reg. I of 18Sb) the lands mu>t be deemed to be heritable and transferable without any restriction.

The transferor Bardeuries, who held the lands described as brahmottar lands in revenue records, fell under s. S(r)(a) and becam<• "land holders" under s. 3(g) of the Regulation and consequently s. g applied to them statutorily recognising their rights in the lands to be permanent, heritable and transferable.

To prove the plaintiff-appellant's contention that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 105 and 106 of 1957.

Appeals from the judgment and decree dated April 8, 1954, of the Assam High Court in Appeal from Appellate Decree Nos. 41 and 54 of 1951.

L. K. Jha and D. N. Mukherjee, for the appellant.

N aunit Lal, for respondents Nos. 1 to 12.

1961. February 23. The Judgment of the Court was delivered by

Gajendragadkar ]· GAJENDRAGADKAR, J.-These two appeals arise from a suit instituted by the appellant in the Court of the Special Subordinate Judge, Assam Valley Districts, in which he claimed a declaration that the sale deeds of lands described in detail in the various Schedules attached to the plaint were void and for possession of the litnds covered by the said sale deeds. His case was that Madhab Temple at Hajo is a ver:' ancient temple and the Assam Rajahs had granted lands to the Bardeuries (temple officials) to enable them to render service to the deities installed in J; he said temple. The lands thus granted to the temple officials were endowed lands and the same had been burdened with service to the temple ; in other words, the grantees were entitled to enjoy the lands on condition that they rendered the ...- requisite service to the temple.

As a c_orollary of th\l

• •

3 8.C.R.

SUPREME COUHT ltEPOR'l'8 949

burden imposed on the grantees by the said grant the

I96I lands we. re inalienable to strnnbcrers though they could - J ibon Chandra be transferred to anv of the Bardeurie; of the temple. sa,,,, a Doloi According to the ap.pellant the said lands had originv. ally been granted to Hem Kanta 8arma and Uma AnandiRam l<alita Kanta Sarma who were then the worshippers at the -- temple. The respondents who were impleaded to the Gajendragadkar J. suit represented the heirs (if the original grantees and assignees from those heirs. The appellant has brought this suit on behalf of the Madhab Temple at Hajo, aJHl his case is that the alienations made by the worshippers in favour of non-worshippers were invalid and so the temple was entitled to claim a declaration as set out in the plaint and to ask for possession of the lands unaudwrisedly transferred to the µredeccssors in title of the respondents. The lands in suit have been described in detail and specified in three Schedules called Ka, Kha and Ga.

The respondents denied this claim. They urged that the original grants were not burdened with service and were alienable without a.ny restriction whatever. They also pleaded that they had purchased the lands bona fide for valuable consideration and without notice of a.ny such burden or obligation subsisting on the lands.

Besides, they added a plea. of limitation in respect of the lands specified in Schedules Kha and Ga.

The trial court upheld the appellant's contention a.nd ma.de a finding that the lauds in suit were burdened with service with the resnlt that the impugned alienations were void. It also found that the purchasers had not shown that they had made adequate enquiries and so their plea that they were purchasers without notice could not be sustained. On the question of limitation, however, it accepted the plea raised by the respondents in respect of the lands described in Schedules Kha and Ga. In regard to the lands desci:ibed in Schedule Ka the trial Court directed that the appellant should obtain delivery of possesaion of the said lands through the transferor-defendants or their heir if the latter were willing to render service to the temple; otherwise the appellant was held entitled to get independent possession a.nd the said transferors

1150 SUPREME COUR'f REPORTS rj l\ll.l) t.a.uv

i96i would be deemed to have relinquished their interest in the said lands.

J ibon Chandra

Sarma Dolo• This decree gave rise to cross appeals before the v.

District Court. The said appeals were heard together AnandiR•m K•lit•and the appellate court confirmed the decree passed - by the trial court in respect of Kha and Ga lands. In G•jendragadkar J. regard to the lands in Schedule Ka the appellate court maintained the declaration in favour of the appellaut but discharged the conditional decree for possession because it held that in regard to the said lands the appellant must be left to move the sovereign authority to sue for resumption of the said lands.

This appellate decree became the subject matter of two appeals and cross objections before the High Court. The High Court has held that the finding concurrently recorded by the courts below in regard to the burden subsisting on the lands in question was based on evidence most of which was hearsay and the whole of which taken together was meagre and insufficient in law to sustain the said finding.

The High Court has also criticised the courts below for placing the onus of proof in regard to the character of the lands on the respondents. According to the High Court it was for the appellant to prove his case in respect of the nature of the original grant. The High Court has then taken into account the fact that the evidence shows that many of the lands were transferred to strangers and that was inconsistent with the case made out by the appellant. Besides, the High Court has referred to the fact that the lands in question are described as Brahmottar lands in revenue papers and that clearly shows. that the said lands are heritable and transferable without restriction. On the question of limitation the High Court has accepted the plea of the respondents that Article 144 of the Limitation Act applied. As to the declaration granted to the appellant by the District Court the High Court has observed that the said declaration was absolutely futile. In the result the suit preferred by the appellant has been dismissed with costs throughout. It is this decision which is challenged before us by the appellant with a cerLificate granted to the appellant by the High Court in that behalf.

. '

• •

3 S.C.R.

SUPREME COUltT REPOltTS 9.'\l

The principal point which has been urged before UH 1961 by Mr. Jha for the a11pellant is that the High Court J ibo11 Cha11dta was in error in coming to the conclusion that lands in s •. ,,,,. Doloi suit which are admittedly described 1s Brahmottar v. lands in the revenue records are transfernble without .lnandiRam [(alita any restriction.

In support of its conclusion the _ . -- High Court has referred to the history of the lands, Ga; en.dragadk"' 1 the nature of the initial grant and the recognition of the title of the grantees by the British Government after it conquered Assam and of the several steps taken thereafter. This history lms been set out in detail in the Assam Land Revenue lllanual (1 ).

From this introduction it appears that Ni•f-khiraj (half-revenue paying) estates as distinguished from Khiraj (fullrevenue paying) estates form a class of tenure found only in Assam Proper and they have a special history of their own. In 1834, shortly after Assam was annexed by the Government of India it ruled that "all rights to bold l:inds free of assessment founded on grants made by auy former Government must be considered to have been cancelled by the British conquest. All claims therefore for restoration to such tenure can rest only on the indulgence of the Government without any right." This ruling clearly and emphatically brought out the legal consequences of political conquest.

Grants made by the previous Governments came to an end and their continuance a.fter the conquest would depend upnn the indulgence of the succeeding Government.

It appears that prior to the conquest of Assam under the previous regime the predecessors in interest of the then owners of isf-khiraj estates held their lands revenue-frrp and called themselvP, s lakhirajdars.

They continued to describe themselves as such even after their lands were resumed and assessed at half rates. Mr. Scott, the first British Commissioner of Assam, refused to recognise any claims to hold land revenue-free.

Research made by him in that behalf showed that even prior to the Burmese conquest of Assam lakhiraj land had occasionally been assessed at five aunas a pura (four bighas) in times of trouble by

(•) Vol. I, 6th Ed., p. !xv;;_

952 SUPREME COUit'l' REPORTS [1961]

the Assam Rajahs themselves. Basing himself on this precedent Mr. Scott fixed the assessment of the said J ibott Cha#dra l Sarrna Doloi and at the •aid rates and subsequently increased it to v. seven or eight annas a purn. This imposition was ,,...,,, uR..,,.Kali1aknown as Police Barangani.

Captain (afterwards General) Jenkim became lhe

Gajedr•gadlar J. Commissioner of Assam in 1834.

The lakhirajditrs objected to pay the tax imposed on their lands by Mr. Scott on the ground that Mr. Scott intended to levy the said tax temporarily and had promised to remit it. This dispute was referred by General Jenkins to the Government of India. who replied that they saw no reason to believe that the tax imposed by Mr. Scott was intended to be temporary, and they added that if it was Mr. Scott's intention it would not be valid beca 01se Mr. Scott had not obtained the sanction of the Government in that behalf. Even so, the Government of India directed that a. full enquiry should Le made into all claims to rent-free lands on the part of Rajahs or as debotter or dhli.rmottar or on any other plea throughout the districts of Assam and Captain Bogle was appointed Special Cummissioner to make the said enquiry under Rgulation III of 1818. This enquiry had to be held subject t.o the control and orders of General Jenkins. The Government prescribed certain principles to guide Capt"'in Bogle in his enquiry. One of these principles was that pending the lakhira.j enquiry Mr. Scott's moderate rates were to be levied.

The orders issued by the Government in that behalf clearly declared the right of the Government to assess all lands held revenue-free in Asam Proper, but subject to this right Government were prepared to grant the indnlgence of restoring to the lakhirajda.rs all lands held by them and to confirm them in possession.

It appears that the instructions issued by the Government were not fully ca.rllied out by General Jenkins. Instead of treating all la.khira.j lands a.s being on the same footing a.nd liable to assessment the Genera.I drew a. broad distinction between debotter Ia.nds which were a.ppropria.ted to temples and lands known as bra.hmottar or dharmottar, that is to say,

. '

·-' - -,._ , /

~ ._ ...... ;.·, -~------ - ' \ _' . ,. ''":-~-----·--. " ' lands devoted to some religious purpose not being r96r . temple lands. In respect of the former he confirmed . -- . the gr.ants revenue.fri:e. In respect of the latter he 1!~, c~-i~·

simply confirmed the grantees in possession subject to ''":., 0

' the payment of Mr. Scott's favourable rates 'untilA•andi Ram Kalila Captain Bogie's eriquiry was terminated and final ., . . , orders p'isrnd in that behalf. · · · · . .1 - < Ga; nodra1adAar J. 'It is cuious .that though_ the enquiry of Captain Bogle' went on for many years it was not formally completed till the year 1860. By that time the instr'uctions issued by the Government of-India at the com- . menc'ement of the enquiry \vere lost sight of, No

'report' was submitted to the Government. bJ' _the

Pnquiring officer and final orders of the Government-of India were not obtained on _thequestion whether the holders of brahmottar and dharmottar la-rids-were to . hold their lands at the rates fixed by General 'Jenkins.

In consequence holders of these lands have ever since . continued to hold at half rates without any formal

' decision by t.he Government of India having beeri 'reached in that behalf.

1 . Subsequently the __ holders' rights to continue to hold the lands at tho said rates have beeri recognised and their holdings have been declared to be heritable and transferable by' the Government of India in 1879. ' ' '' . This summary of the history of these iandswhih is

t<> be found in . the introduction to the Assam Land . Revenue i\fan1ial shows that Nisf.khirajdar of. he ~-.. present day "is ordinarily a person whose lands'.19-ere claimed by his ancestors revenue-free. on. the. groinid that they were granted by the Assam . Rajas for some religious or charitable purpose". It appears' that the word "Nisf-khiraj" was invented for the first-time in 1871 and it applied to all estates which paid half the ordinary revenue rates .. This. word was presumably invented to avoid c1mfusion caused by the use of the , word .. lakhiraj" which had been applied to them_ prior tol87l. __ ·. : . •-; ., ·. '

- . ·-·· [· ·•The hlstory of this tenure is similarly stated in the Goverpnient Gazette relating to A8sam as well as by

Baden_-Powell (Vo_!. III, pp. 406 followingj. . .

1961 At this stage it would be necessary to refer to the relevant provisions of Regulation I of 1886. It is.

Jibon Chandra JJ d h A L 50,, •• Do1o; ca. e t e ssam and and Revenue Regulation of the v. sa.id year. Section 3(g) of this Regulation defines .-lnandiRam Kalil•" la.nd holder" as meaning any person deemed to have acquired the status of a land holder under s. 8; while Gajeodrogadk•r fs. 8 (I) provides, inter alia, that any perso11 who has, before the commencement of this Rrgulation, held immediately under the Government for ten years continuously any land not included either in a permanently settled estate. or iu a revenue-free estate, and who has during that period paid to the Government the revenue due thereon or held the same under an express exemption from revenue, shall be deemed to have acquired the status of a land holder in respect of the land. That takes us to s. 9 which provirles that a land holder shall have a permanent heritable and transferable right of use and occupancy in his land subject to the provisions contained in els. (a), (b) and

(c) of the said section. It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under s. 8 (I) (a) and became Ja.nd holders under s. 3 (g).

The inevitable consequence of this position is thats. 9 applies to them a.nd their rights in the lands in their occupation a.re statutorily recognised to be permanent, heritable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to au.stain the plea that the lands in question a.re burdened with the special condition that they can he transferred only to Ba.rdeuries and not to any strangers outside the group. As the High Court ha.s found, and that is no longer in dispute, these lands are described as brahmottar lands in revenue records a.nd to the said lands anti their holders the statutory provisions of the Regulation to which we have just referred a.pplied ; therefore, it is impossible to escape

' .

the conclusion that by virtue of the relevant statutory .... , provision8 of the Regulation the lands must be deemed to be heritabk ncl t mnsforabl" without any Tf'Rtriction,

1961 This aspect of the matter was completely ignored by the trial court and the appellate court, and so the Jib•• C1"'ndr• High Court was right in correcting the error which had Sarma, Doloi crept irito the concurrent decisions of the courts below. . v. . .

Besides, the High Court was also right in holding Anand•R••• K•l•I• that in a case of this kind where the appellant urged G . d-dA 1 that the lands could be alienated only to a specified aJ•• raga "' • class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That . was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.

In the result the appeals fail and are dismissed with costs.

Appeals dismissed.

N. KASTURI

D. PONN AM.MAL AND OTHERS. (P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.)

Will-Construction-Bequest to Kin the absence of adoption- Testator's intention to adopt K-Authority to adopt given lo widow -No adoption made-K's rights, whether vested interest subject to defeasance by subsequent adoption.

A testator, who was childless, executed a will on April 28, 1937, and died on March IO, 1939, leaving him surviving his . ·• widow. In cl. 6 of the will he expressed his desire to adopt a boy and stated that in case he did not make an adoption during his life-time his wife shall adopt K. He also conferred authorityQo hi~

~~2

JIBON CHANDRA SARMA DOLOI

P. B. GAJENDRAGADKAR

K. N. WANCHOO

ss. 3(g)

Sarma Dotoi

Assam

s. 3(g)

L. K. Jha

D. N. Mukherjee

N aunit Lal

Gajendragadkar

GAJENDRAGADKAR

Hajo

Hem Kanta 8arma

Uma AnandiRam l<alita Kanta Sarma

J ibon Chandra

G•jendragadkar

Article 144

Limitation Act

Jha

Government of India

Scott

Jenkim

Jenkins

Bogle

Bogie

Government of-India

Government-of India

Jibon Chandra

Section 3(g)

s. 8

s. 9

s. 8

s. 3

Sarma

N. KASTURI

N. KASTURI

D. PONN AM.MAL AND OTHERS. (

D. PONN AM.MAL

IC N. WANcHoo

April 28, 1937

March IO, 1939

cl. 6


3 S.C.R.

SUPREME COURT REPORTS 955

1961 This aspect of the matter was completely ignored by the trial court and the appellate court, and so the Jib•• C1"'ndr• High Court was right in correcting the error which had Sarma, Doloi crept irito the concurrent decisions of the courts below. . v. . .

Besides, the High Court was also right in holding Anand•R••• K•l•I• that in a case of this kind where the appellant urged G . d-dA 1 that the lands could be alienated only to a specified aJ•• raga "' • class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That . was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.

In the result the appeals fail and are dismissed with costs.

Appeals dismissed.

N. KASTURI

D. PONN AM.MAL AND OTHERS. (P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.)

Will-Construction-Bequest to Kin the absence of adoption- Testator's intention to adopt K-Authority to adopt given lo widow -No adoption made-K's rights, whether vested interest subject to defeasance by subsequent adoption.

A testator, who was childless, executed a will on April 28, 1937, and died on March IO, 1939, leaving him surviving his . ·• widow. In cl. 6 of the will he expressed his desire to adopt a boy and stated that in case he did not make an adoption during his life-time his wife shall adopt K. He also conferred authorityQo hi~

~~2

Kast1tri

Ponnannnal

wife to make an adoption in case K died before being adopted.

By cl. II of the will he provided that exclusive of the properties that might be given for T's wives, M. A. and. K. A., and daughter and for his wife for being enjoyed by each during her lifetime, in respect of one-half of all the remaining properties of his family, his wife shall before making an adoption, execute in favour of K. S. a document under which he shall enjoy only the income from those properties during his lifetime and that alter his lifetime his heirs shall get them with absolute rights, and she shall also make an arrangement to the effect that his adopted son similarly got and enjoyed only the remaining half. Clause 12 provided: "Should myself and my wife die without making an adoption or should my wife predecease me or in case I do not adopt any boy or in case the boy adopted by me is not alive at the time of my death, the above K an<l the above K. S. shall get the whole of my properties in equal shares ...... Should myself and my wife die without making an ad0ption as stated above and should the above K. S, predecease us, the above M. A. and K . .-\. shall get all the properties ...... "

No adoption was made either by the testator before his death or by his widow thereafter. K instituted a suit for a declaration of his rights under the will basing his claim under

cl. r2 on the footing that under that clause when no adoption was made and until it was so made he had a vested interest in respect of half the properties subject to defeasance by subsequent adoption.

Held, that on a true construction of the will dated April 28, r937, cl. 12 was intended to operate at the time of the death of the testatot and not later and that K would get an interest nnder that clause only if the widow of the testator pre-deceased thr testator and there was no adoption by the testator before his death.

In the circumstances K's rights were provided for by

cl. II only and those rights could not come into existence unless and until he was adopted by the widow. On this view there was a postponement of vesting and a possibility of intestacy, but that cannot be avoided.

The rules of construction of a will against a postponement of vesting and avoidance of intestacy are not absolute and the court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed.

The intention of the testator should be ascertained by construing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning considered together.

Gnanambal Ammal \'. T. Raju Ayyar and Others, A.LR. 1951 S.C. ro3 and V enkata N arasimha v. Parthasarathy, L. R. 41 I.A. 5r, referred to.

C1v1L

APPELLATE , Ju~ISDICTION: Civil Appeal No. 373 of 1956,

• ••

Appeal from the judgment and decree dated September 17, 1952, of the Madras High Court in A. S. No. 270 of 1948.

z96r

A. V. Viswanatha Sastri, A. V. Narayanaswami and Ponnan .. ••l M. 8. Narasimhan for T. K. Snndara Ra.man, for the appellant.

M. C. Setalvad, Attorney-General, R. Ramamurthi Iyer and B. K. B. Naidu, for respondent No. l.

R. Ramamurthi Iyer and B. K. B. Naidu, for respondents Nos. 2 and 4 and the legal representatives of respondent No. 5.

1961. February 23. The Judgment of the Court was delivered by

GA, JENDRAGADKAR, J.-T.his appeal raisas a short&ajendragadkar J. question about the coustruct, ion of a will executed by the testator, Diraviyam Pillai, on April 28, 1937, and it arises from a suit instituted by the appellant N. Kasturi in the Court of the Subordinate Judge at Madura. In his suit the appellant alleged that under

cl. 12 of the will certaiu rights either vested or contingent had been conferred on him in regard to the property as therein described, and it was in pursuance of the said rights that he claimed a declaration with a view to protect his interest and safeguard the estate from being wasted by, and lost in the hands of, the testator's widow, respondent 1, Ponnammal, who was in charge of the said estate. The trial court construed the will against the appellant and held that it conferred no right on him and so he co1,1ld not claim any of the reliefs set out in his plaint. Incidentally, on the merits the trial court was satisfied that a case had been made out by the appellant and that it did appear that the estate .was being wasted by its present holder, respondent 1.

The appellant then took the matter before the Madras High Court by his appeal. The High Court has agreed with the trial court in the construction of

&he will. It has held that the appellant had no right under the will which would justify his claim for any of the reliefs set out in his plaint. On that finding the High Court thought it unnecessary to consider the merits of the case set out by the appellant and denied

z9fiz by respondent 1. The appellant then applied for and

K.VN•i obtained a certificate from the High Court, and it v. is with the said certificate that he has come to this

P .. """'""" court by his present appeal ; and so, the only question which falls for our decision is: Have the courts below G•i••d••gadh• J. put an unreasonable construction on the will as Mr. Viswanatha Sastri for the appellant contends?

As we have already seen the testator executed the will on April 28, 1937, and he died on March 10, 1939.

During his lifetime the testator was a member of a joint and undivided Hindu family consisting of himself and his cousin, Thayumanaswami Pillai. Neither of them had any son. At his death which took place on May 9, 1935, Thayumanaswami Pillai left behind him two widows, respondent 2, Mangayarkarasi Ammal and respondent 3, Kanniammal, and a widowed daughter by the former, respondent 4, Pichai Ammal.

The testator who survived his cousin became entitled to the whole of the family property by survivorship; and it is as such that he made, and was competent to make, the will in question. The appellant is the sister's daughter's grandson of the testator, whereas Kalyanasundaram, respondent 5, was treated as a foster-son by the testator's cousin, Thayumanaswami Pillai.

Respondent 5 died pending the appeal before this Court leaving behind him two widows, two minor sons and two minor daughters who have been brought on the record as his heirs and legal representatives. These are the persons who have been mentioned in the will and who appear to be the objects of the testator's bounty in one way or another.

It is now necessary to refer to the will in general and read the two clauses which specifically fall to be construed in the present appeal. Clause l of the will refers to the fact that the testator had alread v executed a will on June 12, 1935, and had registered it.

The present will was executed by him with a view to cancel his earlier will and with the object of making fresh arrangements in regard to his property as specified in the present will.

Clause 2 of the will states that the testator and his senior cousin, the deceased Thayumanaswami Pillai,

... '

3 S.C.R.

SUPHEME COURT REPORTS 959

were members of an undivided Hindu family and as '¢' such had acquired property and carried on money.

K.,,..,; lending business in the names of both of them. The v. testator adds that on the death of his cousin, as the

P ... , '"' sole surviving coparcener he became the absolute c; . -. - owner of the whole of the property. "J<Wllf"4NIJ.

Clause 3 recites that the testator was then 6{ years of age and that he and his wife, respondent 1, had no issue. Then he refers to his other relations in w horn he was interested.

In cl. 4 the testator points out that circumstanced as he was it was necessary to make arrangements with regard to the family property "so that the family affairs may be carried on according to my desire without any dispute or quarrel whatever in the family after my lifetime." This case, like matty ot.hers, illustrates that the hope and expectation expressed by the testator that the making of his will should prevent litigation and disputes has not come true.

Clause 5 is in the nature of a preamble to the dis. positive clauses of the will and is as follows. It says that his deceased cousin had expressed some desire during his lifetime regarding the properties, and the testator out of deference to his wishes was making the arrangements set out in the will agreeably to the said wishes and in accordance therewith.

Clause 6 begins with the declaration that the testator wanted to adopt a boy for the propagation of his family ; and it says that in case the testator did not make an adoption during his lifetime his wife, respondent 1, shall adopt the appellant. Then the clause sa.ys that should the a. ppella.nt die providentially before he is ta.ken in adoption the testator permitted a.nd authorised his wife to a.dop~ as she pleases another good and suitable boy from amongst his community ; and a.s a precaution the testator also deals with the possibility of the death of the boy so adopted by his wife and authorises her to make subsequent adoptions if necessary. Thus cl. 6 of the will expresses the testator's desire to make an adoption himself and confers authority on his wife to make such an adoption after his death in case be does not adopt in his lifetime.

19'1 Clause 7 provides for the management of the estate if the adopted son happens to be a minor. It lays Kad#Yi d h d "' own t at during the minority of the adopte son p....,,,,.mai his wife shall he his guardian and shall take only the advice necessary for the management of the proper-

GlljlM••f"'l~••f ties and also regarding other family affairs from the advisers specified by him in his will.

On the adopted son attaining majority she is directed to hand over the properties to him.

The testator makes it clear that the adopted son shall enjoy the properties thu8 received by him without subjecting them to usufructuary mortgage, simple mortgage, sale, etc., and after his death his heir shall get them with absolute rights.

Thus the testator has conferred on his adopted son a life estate and left the estate absolutely to the heirs of the adopted son.

By cl. 8 the testator makes his wife the executrix of his will in case he died without making any adoption; and it confers on her the powers to carry out the provisions of the will in that connection and ta.ke the necessary advice from advisers specified by him. This clause enjoins upon tc1A executrix the obligation to execute in favour of respondents 2, 3, 4 and 5 the necessary documents as mentioned in detail under the following clauses, to adopt a hoy in accordance with the permission given by him, to manage the properties till the boy attains majority and to hand over to him the properties on his attaining majority. In discharging her obligations set out in this clause she has heeu asked to consult the advisers and carry out her duties "duly and properly." In this clause the testator has indicated the objects of his bounty and has imposed upon his executrix the obligations to carry out the dispositions specified in the will.

Clause 9 deals with the dispositions in favour of respondents 2, 3 and 4. In respect of respondent 4 the testator has expressed his special solicitude because she had become a widow while young and he was keen

that a provision should be made for her maintenance during her lifetime consistent with the status of the family so that she might maintain herself without difficulty. The direction contained in this clause shows

.. '

...

that the testator wanted the three respondents to '¢1 receive properties separately for their maintenance Kasturi with the condition that they shall enjoy the income of v. the said properties as they liked during their lifetime Po•nam""'I without subjecting them to sale, usufructuary mort- -- gage, simple mortgage, etc.

Gaje•dragadllor f.

Cla.use 10 Jeals with respondent 5. Respondent 5 is the son of the first wife of the late Muthuswami Pillai who was the husband of respondent 4 and sister's son of respondent 2. He had been treated by Thayumana.

swami Pillai, the cou8in of the testator, as his abhimanaputran (foster son) and the said cousin had the desire to give properties to him with which desire the testator had agreed. In accordance with this desire the testator proceeded to make a disJilOsition in favour of respondent 5 in the succeeding clauses. That is the effect of cl. 10. Clauses 11 and 12 are the clauses which fa.II to be construed and so we will now read them in extenso ;

"Cl. 11. Exclusive of the properties that may be given in writing, as stated above, to the late Thayumanaswarui Pilla.i's wives and daughter and similarly for herself, that is to say, for my wife, for being enjoyed by each during her lifetime, in respect of one-half of all the remaining properties of my family, my wife shall, before making an adoption, execute in favour of the above Kalyanasundaram a document with suitable recitals to the effect that he shall enjoy only the income that may be derived therefrom during his lifetime without subjecting them to any encumbrances whatever, that is to !lily, without effecting any sale, usufructuary mortgage, simple mortgage, etc., and that after his lifetime, his heirs shall get them with absolute rights and, she shall a.ls<;> make an arrangement to the effect that my adopted son similarly gets and enjoys only the remaining half. My wife Ponna.mmal herself shall also manage one-half of the properties aforesaid till Kalyanasundaram attains majority, and a.a soon as he attains majority, she shall hand over to him the properties due to him for being enjoyed by him .. ooording to the terms mentioned a.hove, Whereas

Kasturi

SUPRE:YIE COURT REPORTS [11161)

properties have been set apart, as stated above for the late Thayumanaswami Pillai's wives, daughter Piohammal and my wife Ponnammal for their maintenance, it shall be mentioned in the documents that after their respective lifetime, the :bove properties shall be taken in equal shares by t.he aboye Kalyanasundaram and the boy that may be adopted by me or my wife, or that on the death of the respective persons their respective male heirs, if any, shall succeed to their respective one-half share and that should any one of them die without a ma.le heir and the other alone survive such survivor alone shall take both the shares.

Cl. 12. Should myself and 'my wife die without making an adoption or should my wife predecease me or in case I do not adopt any boy 01 in case the boy adopted by me is not alive at the time of my death, the above Kasturi and the above Ka.lvanasnndaram shall get and take the whole of my properties in equal shares for being enjoyed according to the terms mentioned in paragraph 11 above and subject to the conditions regarding the properties to be set apart for maintenance as stated above.

Should myself and my wife die without making an adoption as stated above and should the above Kalyanasundaram predecease us, the above Mangayarkarasi Ammal and Kanuiammal shall get all the properties and enjoy them during their lifetime without subjecting them to any encumbrances whatever and by virtne of the permission hereby granted by me to them to adopt a boy, they shall adopt a boy and that adopted boy shall succeed to them." Before proceeding to construe these clauses we may refer briefly to the remaining clauses of the will.

Clause 13 refers to the charitable dispositions. already made by the testator and the arrangements made by him in that behalf. It adds " even as regards the other charities which I intend to do hereafter, the respective documents shall be acted upon. " Clause 14 names th" advisers in consultation with whom the e)!:ecut!'ix has l_wou "ked hy llw t.<, stu.tor to earry out.

• j

I t

the terms of his will.

Under cl. 15 the testator r96r Provides that aft.er his wife's death or in the event of J(asturi his wife dying even at the outset when his will takes v. effect respondent 2 shall be the executrix and guardian Ponnammal of respondent 5 "suitably to circumstances. " In case -- she also is not alive at the relevant time respondent 3 Gafendyagadka, J. should be the executrix and guardian. Clause 16 provides that in case the testator dies without making an adoption during his lifetime his ob8equies shall be performed by respondent 5 and the appellant; the said two persons are also required to perform the obsequies of his wife if she dies without making any adoption as well as obsequies of respondents 2 and 3.

Respondent 5 is required to perform the obsequies of respondent 4.

Under cl. 17 the testator has provided that in case respondent 2 or 3 became the testatrix she shall manage the properties in consultation with the advisers specified in the will.

By cl. 18 the testator provided that his will will take effect from the date of his death, and by cl. 19 the testator reserved the power to alter his will or to add to it. It would thus be seen that this will which contains 19 clauses is a very reasonable will and it seeks to do justice to the claims of all persons belonging to the family in whom the testator was interested and in respect of whom as the sole surviving coparcener he recognised his responsibilities. He bas scrupulously attempted to carry out the desires of bis deceased cousin, and on the whole its terms are very fair and reasonable. The question which arises for our decision is: Does the appellant get any right undAr cl. 12 of the will which would justify bis claim for a declaration and other appropriate reliefs made by him in the present suit? As we have already indicated, both the courts below have answered this question against the appellant.

Mr. Sastri contends that in construing the two relevant clauses it is necessary to bear in mind two principles which govern the construction of wills. The first principle is that so far as is i:easonably possible courts should adopt that construction of the will which would a.void intestacy; and the second principle is that the construction which postpones the vesting of

'96' the estate after the death of the testator should be

Kasturi avoided. Iu support of the first principle Mr. Sastri v. has relied on the observation of Mookerjee, J., in Ponnammal Sarojini Dassi v. Gnanendranath Das & Others etc. (1 ). - On a construction of the several dispositions contained cajendragadkar J. in the will with which t, he learned judge was dealing he came to the conclusion that taken together the said dispositions show that the testator internkd to dispose of all his properties, and then he added " if there is any doubt, we ought if possible to read the will so as to lead to a testacy, not to an intestacy." In support of this conclusion the learned judge referred to four English decisions, In re Redfern ('), In re Harrison('), Kirby Smith v. Parnell(') and In re Edwards('). In support of the second principle enunciated by Mr. Sastri he has relied on the decision of the Privy Council in Bickersteth & Another

v. Shanu ('). In that case the Privy Council held that the established rule for construing devises of real estate is that they are held to be vested unless a condition precedent to the' vesting is expressed with reasonable clearness.

On the other hand, the learned Attorney-Genera.I has invited our attention to a decision of this Court in Gnanambal Ammal v. T. Raju Ayyar & Others('), in which this Court has definitely ruled that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances ; but it can be invoked only when there is undoubted ambiguity in ascertainmeut of the intentions of the testator. Mukherjea, J., as he then was, observed that the cardinal maxim to be observed by courts in constraing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the langu. age of the document which is to be read as a who]., without indulging in any conjecture or speculation as to what the testator would have done if he had been

(1) (1916) 23 Cal. L.J. 241, 255. !>) (1877) 6 Ch, D. 133.

(3) (188,5) 30 Ch. D, 390,

<r> A.LR. 1 9~1 s.~. 10~.

(4) [1903] 1 Ch. 483.

(5) [1906] I Ch. 570.

(6) (1936] A.C. 290.

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3 S.C.R.

SUPREME COUliT REPORTS 965

better informed or better advised; and in support 1961 of this view the learned judge cited similar observa- Kasturi tions made by the Privy Council in Venkata Narasimha v.

v. Parthasarathy (1).

In dealing with the principle Ponnammaz that intestacy should be avoided, Mukherjca, J. said . - that the desire to avoid intestacy was based on Eng- Ga1endragadkar J. lish habits of thought which should not necessarily bind an Indian court. Therefore, there can be little doubt that what Mr. Sastri formulates as a rule of construction against the avoidance of intestacy cannot be treated tis an absolute rule which should have overriding importance in construing a will. If two constructions are reasonably possible, and one of them avoids intestacy while the other involves intestacy, the court would certainly be justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy. Similarly, in regard to the rule that vesting should not be postponed the position is exactly the. same. It is obvious that a court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must -be decided by construing the will as a whole and giving the relevant clauses in the wiJJ their plain grammatical meaning considered together.

In construing a will it is generally not profitable or useful to refer to the construction of other wills because the . construction of each will must necessarily depend upon the terms ued by the will considered as a whole, and the result which follows on a fair and reasonable construction of the said words must vary from will to will.

Therefore, we must look at the relevant clauses carefully and decide which of the two rival constructions should be accepted.

Mr. Sast, ri argued that els. 11 and 12 are separate and independent clauses and they deal with two

(1) (1913) L.R. 41 I.A. 51. 70.

z96z separate and different positions. According to him,

cl. 11 deals with the position which would have arisen J(asluri

v. if an adoption had been made by the widow of the Ponnammat testator, whereas cl. 12 deals with the position which . -- would arise where no adoption is made. His argu- Ga;•ndragadkar J. ment is that when no adoption is made and until it is so made there is a vested right in respect of half the properties in the appellant whieh right no doubt may be defeated if an adoption is subsequently made. He contends that this is a vested right subject to defeasance by subsequent adoption, and this right has nothing to do with the right which would be conferred on the appellant if he is adopted as contemplated by cl. 11. That according to the appellant is the tenor and the effect of cl. 12, and that is how the appellant avoids intestacy and postponement of vesting.

The respondents' case, howeyer, is, and that is the case which has been accepted by the courts below, that cl. 12 should be construed as operating at the time of the death of the testator and not later, and according to this argument, as soon as the testator died the said clause ceased to be applicable and the rights of the appellant fall to be considered only under

cl. 11. If cl. 12 had to he construed by itself separately and in isolation from cl. 11 much could have been said in favour of the contention urged by the appellant; but, in our opinion, it would be plainly inconsistent with all the rules of construction to take

cl. 12 by itself and isolate it from the rest of the will.

Clauses 6 to 11 deal primarily with the adoption which the testator contemplated would be made by his widow in case he did not make an adoption in his lifetime. Clause 11 confers a vested interest on respondent 5. This has to be done before respondent 1 makes any adoption and indeed it is an independent bequest by itself. Then the said clause contemplates the appellant as a possible ELdoptee and then deals with his rights on that footing. With the other bequests made by the said cla.use we are not directly concerned. Having thus made the provisions in cl. 11 on the basis that his widow may adopt, cl. 12 deals with an alternative situation which would arise in

'.;..

cases contemplated by the said clause, and it is z96z intended to be operative only at the time of the death Kasturi of the testator and not otherwise. If that be the true v. position then the appellant would not be entitled to Ponnammal any right under cl. 12 at all. .

Now as a matter of construction there are some Ga1end.agadkar l , serious difficulties in the way of accepting the appellant's case. The first part of cl. 12 refers to four possible cases, joint adoption by the testator and his wife, the death of his wife during the lifetime of the testator, the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death. If the appellant's argument was accepted the first part of the clause would have to be split up into two and would have to be read as covering the failure of the testator or that of his wife to make an adoption. In other words, the expression " myself and my wife " has to be read as "myself or my wife ", and in the context that seems inappropriate. The argument that there cannot be a joint adoption by the testator and his wife is, in our opinion, too academic and technical. It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator, but it is equally true that if the testator had made an adoption during his lifetime his wife would have joined him and there is little doubt that Hindu law does in that sense recognizes an adoptive mother (' pratigrihitrimata' (')) (Vide: Annapurni Noohiar v.

Forbe; i (10). Therefore, it does not sound reasonable to contend that since joint adoption by husband and wife is unknown to Hindu law the word "and" should be read as " or" in the relevant clause. That is the first diffieulty in accepting the appellant's construction.

The second difficulty is that if the word "and" is read as "or" the third case contemplated in the first part of the clause of the testator adopting the boy himself alone would be superfluous. The adoption by the testator himself acting alone is already covered in

(9) :Mayne on Hindu Law & Usage, t Jtb Edn., pp 2-1-1. 1-fS

(10) (1899) 26 I.A 246, 253.

Kasturi v.

Po11naninu.l/

the first part of the clause. Mr. Sastri fairly conceded that this superfluity would follow on his construction; but, he argued, that that need not necessarily defeat his construction.

The third difficulty in accepting the said construc- GaJend.agadhar J. tion is that the right which has already vested under

cl. 11 in respondent 5 is again vested by cl. 12. As we have already seen, under cl. 11 respondent 5 was given half the estate in pursuance of the agreement between the testator and his deceased cousin Thayumanaswami Pillai. Therefore, there is hardly any occasion or necessity to make a disposition in favour of respondent 5 once again under cl.12. The presence of this difficulty also is not seriously disputed. The only argument in respect of this difficulty was that as an abundant precaution the testator repeated the bequest in favour of respondent 5 though the said bequest had been completely provided for under cl.11.

There is still one more difficuHy in accepting the appellant's construction, and that is in regard to the last part of cl. 12.

Under this clause, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them respondents 2 and 3 were tu take all the properties and enjoy them during their lifetime subject to the conditions specified in the clause. Now, it is obvious that if the expression "all the properties " means, as it must, all of them without any exception, then what is already vested in respondent 5 is divested by this clause in case he dies after the testator but before his widow and neither of them has made any adoption, and that would be plainly inconsistent with cl. II. Faced with this difficulty Mr. Sastri suggested that the context requires that "all the properties" would. mean all the properties which would have gone to the appellant if he had been adopted; that is tp say, half the properties given to him under cl. 11 on the basis of his adoption. Such a limitation on the meaning .of the words "all the properties" seems to us to be whdl.Iy unjustified. Therefore, we are satisfied that reading els. II and 12 together the High Court was right in holding that cl. 12 was intended to operate

, !

' '

at the time of the de'.l.th of the testator and not later 1961 and that the appellant would get an interest under Kastud

cl. 12 only if the widow of the testator pre.deceased v. the testator and there is no adoption by the testator Ponnammal before his death. If that be so, the appellant cannot claim any right or title on the strength of cl. 12 be- Gajend, agadkar I cause at the relevant time it was not intended to be operative at all. In the circumstances the appellant's rights are provided for by cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sastri on behalf of the appellant we see no reason to interfere with the said conclusion.

Th.e result is the appeal fails; there would be no ordQr as tu c.osts.

Appeal dismissed.

STATE OF JAMMU KASHMIR

MIR GULAM RASUL.

(P. B. GAJENDRAGADKAR, A. K. SARKAR,

K. N. WANCHOO, K. C. DAS GUPTA and

N. RAJAGOPALA AYYANGAR, JJ.)

Fundamental rights-Equality before law-Breach of law, if amounts to violation of equal protection of law-Writ Petition-No fundamental right involved-Duty of High Court-Constitution of India, Arts. I4, 32(2A).

The Government of J ammu and Kashmir on the basis of the report of the commission of enquiry set up by it demoted the respondent who had been suspended earlier .. The respondent moved the Jammu and Kashmir High Court under Art. 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir for a writ, inter alia, questioning the validity of the order suspending and demoting him, alleging violation of rules of natural justice by the commission of enquiry and breach of statutes and rules of service. Articles 226 and 3n(2) of the Constitution of India had not been applied to the State of Jammu

Ftbrttary 23

N. KASTURI

P. B. GAJENDRAGADKAR

IC N. WANcHoo

cl. 6

Clause 12

April 28, r937

cl. 12

L. R. 41 I.A. 5

A. V. Viswanatha Sastri

A. V. Narayanaswami

Ponnan

T. K. Snndara Ra.man

M. C. Setalvad

R. Ramamurthi Iyer

B. K. B. Naidu

JENDRAGADKAR

Diraviyam Pillai

N. Kasturi

cl. 12

Ponnammal

Madras High Court

Viswanatha Sastri

March 10, 1939

Thayumanaswami Pillai

May 9, 1935

Mangayarkarasi Ammal

Kanniammal

Pichai Ammal

Kalyanasundaram

June 12, 1935

Clause 2

Clause 3

cl. 4

Clause 5

Clause 6

cl. 6

Clause 7

cl. 8

Clause 9

cl. 10

Cl. 11

Thayumanaswarui Pilla.i

Kalyanasundaram

Ponna.mmal herself

Kasturi

Piohammal

Ponnammal

Cl. 12

Kanuiammal

Clause 13

Clause 14

cl. 15

Gafendyagadka

Clause 16

cl. 17

cl. 18

cl. 19

cl. 12

Sastri

Mookerjee

cajendragadkar

Redfern

Edwards

Mukherjea

Mukherjca

Sast

(1913) L.R. 41 I.A. 51

cl. 11

cl. 12

cl. 11

cl. 12

cl. 12

cl. 11

cl. 12

cl. 11

cl. 12

Clause 11

cl. 11

cl. 12

cl. 12

cl. 12

cl. 11

cl. 12

cl. 11

cl. 12

cl. 11

cl. 12

cl. 12

cl. 12

cl. 11

STATE OF JAMMU KASHMIR

STATE OF JAMMU KASHMIR

MIR GULAM RASUL.

A. K. SARKAR

K. N. WANCHOO

K. C. DAS GUPTA

N. RAJAGOPALA AYYANGAR

Constitution of India

Government of J ammu and Kashmir

Art. 32(2A)

Constitution of India

State of Jammu and Kashmir

Articles 226 and 3

Constitution of India

State of Jammu


' '

3 S.C.R.

SUPREME COURT REPORTS 969

at the time of the de'.l.th of the testator and not later 1961 and that the appellant would get an interest under Kastud

cl. 12 only if the widow of the testator pre.deceased v. the testator and there is no adoption by the testator Ponnammal before his death. If that be so, the appellant cannot claim any right or title on the strength of cl. 12 be- Gajend, agadkar I cause at the relevant time it was not intended to be operative at all. In the circumstances the appellant's rights are provided for by cl. 11 alone, and those rights cannot come into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting; but that cannot be avoided. That is the view taken by the courts below, and having carefully considered the argument urged before us by Mr. Sastri on behalf of the appellant we see no reason to interfere with the said conclusion.

Th.e result is the appeal fails; there would be no ordQr as tu c.osts.

Appeal dismissed.

STATE OF JAMMU KASHMIR

MIR GULAM RASUL.

(P. B. GAJENDRAGADKAR, A. K. SARKAR,

K. N. WANCHOO, K. C. DAS GUPTA and

N. RAJAGOPALA AYYANGAR, JJ.)

Fundamental rights-Equality before law-Breach of law, if amounts to violation of equal protection of law-Writ Petition-No fundamental right involved-Duty of High Court-Constitution of India, Arts. I4, 32(2A).

The Government of J ammu and Kashmir on the basis of the report of the commission of enquiry set up by it demoted the respondent who had been suspended earlier .. The respondent moved the Jammu and Kashmir High Court under Art. 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir for a writ, inter alia, questioning the validity of the order suspending and demoting him, alleging violation of rules of natural justice by the commission of enquiry and breach of statutes and rules of service. Articles 226 and 3n(2) of the Constitution of India had not been applied to the State of Jammu

Ftbrttary 23

1961 and Kashmir. The High Court acting under Art. 32(2A) set aside the orders suspending and demoting the respondent.

State oj Held, that the High Court had no powers to act under Jammu and Art. 32(2A) of the Constitution of India as the writ petition did l\n; hmfr not disclose a violation of any fundamental right.

NF G 1v. R 1 Held, further, that the breach of a Jaw by the Government, if i_r .ii ani asu any, did not amount to a denial of the equal protection Of the laws, as it had not ever been alleged by the respondent that the benefit of that Jaw had been designedly denied only to him.

Sarkar].

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 31 of 1957.

Appeal from the judgment and order dated September 27, 1955, of the Jammti and Kashmir High Court in Misc. Application No. 23of1955.

J aswant Singh, Advocate-General for the State of . Jammu and Kashmir and R. H. Dhebar, for the appellant.

S. N. Andley, J.B. Dadachanji, Rameshwar Nath and P. L. Vohra,.for respondent.

1961. February 23. The Judgment of the Court was delivered by

SARKAR, J.-The respondent is a Civil Engineer who held various positions under the appellant, the Government of the State of Jammu and Kashmir. On

September 8, 1954, while the respondent was holding the post M Development Commissioner, he was placed . under suspension by an order made by the a.ppellant ·. on that date. Later, the appellant passed another order on February 12, 1955, demoting the petitioner to the post of a Divisional Engineer.

On May 12, 1955, the respondent moved the High Court of Jammu and Kashmir under Art. 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir, for a, writ directing the appellant not to give effect to the order dated February 12, 1955, and to 'recognise him as the Chief Engineer. the substantive post held by him when he was suspended, with effect from the date of suspension and with all the emoluments of that office. The High Court issued. the writ as prayed. The State appeals from the judg- 14ent of the High Court,

< I

In the view that, we think, must be taken of this 1961 case, it is unnecessary to go into the facts a great State •! deal. At one stage of his career under the appellant, fammu a•d the respondent held a job of some responsibility in Kashmir what was called the Sindh Valley Hydro Electric v.

Scheme. This Scheme wi.s for generating electric Mir G"lam Rasul

power by dams erected in theSindh water course and for using the water for irrigation purposes. The work on this Scheme seems to have commenced some time ago. The respondent was connected with the Scheme

from 1949 till he was transferred from the work in

1953. It appears that the appellant was dissatisfied

~ with the progress of the work and the manner in which it had been carried out and decided to establish a Commission of Inquiry (a) to investigate into the reasons. for (i)progressive rise in the estimates, (ii) the defective planning and the delay in the execution of the work and (iii) the other irregularities and (b) to fix responsibility upon the persons concerned and make appropriate recommendations. Pending the investigation various officers associated with the planning and execution of the Scheme including the respondent, were placed under suspension on September 8, 1954. Thereafter on October 20, 1954, a commission was set up by the appellant consisting of various persons.

The Commission made certain enquiries and eventually submittlld its report to the appellant.

The appellant then made the order demoting the respondent purporting to act on \he

basis of the report. It is not necessary to set out the facts any more. The respondent, in his application for the writ, questioned the validity of the. orders suspending and demoting him on these grounds. He alleged that the Commission did not conduct the enquiry according to the rules of natu, ral justice. He said that he was not even informed of the charges against him nor given a proper hearing and that if he had been given proper opportunity, he would have proved that he bad not been at fault at all. He also said that the appoint- . " ment of the Commission could only have been made under s. 2 of the Public Servants (Inquiries} Act, 1977

Sarkar /.

(Kashmir era), and must, therefore, be deemed to have

State of been so made. He corn plained that the provisions of J•mmu and this Act were not observed by the Commission in l(ashmir making the enquiry. Lastly, he said that the responv. dent could be reduced in rank only in accordance with Mir Gula>• Rasul th d 1 "d d . th K h . c 1 s . . __ e proce ure a1 own m e as m1r 1v1 erv1ce

Sarkar J.

Rules passed by the State Council Order No. 81-C of 1939 and this procedure had not been followed.

In the High Court, the question as to whether these Rules had the status of law seems to have been debated at great length. The High Court took the view that they had. We will proceed on the basis that the High Court was right and the allegations made by the respondent in his petition had been substantiated.

Now, the High Court was moved to exercise its powers under Art. 32 (2A) of the Constitution. The order made by it cannot be upheld if it was not justified by that provision. This is not in dispute. That provision is in t!; tese terms: Art. 32(2A). "Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which it exercises jurisdiction io issue to any person or authority, including in appropriate cases any Government within those territories, directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part." The High Court can then exercise its powers under Art. 32 (2A) only " for the enforcement of any of the rights conferred by this Part". The Part referred to is Part III and the rights conferred by it are the fundamental rights. Therefore, the High Conrt can act under cl. (2A) of Art. 32 only to enforce a. fundamental right.

The only fundamental right, however, on the violation of which !'earned counsel for the respondent could rely in support of the order of the High Court was that conferred by Art. 14, namely, the right to the equal protection of the la..ws.

He said that the . '

. -.

respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules fo!lowed Stale of before the order demoting him could be made and as Jammu ••d that procedure was not followed, his client had been I<a.shmir denied the equal protection of the laws. It seems to v. us that even if the Rules are a law and the respondent Mir Gulam Rasul has not been given the benefit of them, all that can be said to have happened is that the appellant has acted in breach of the law. But that does not amount to a violation of the right to the equal protection of the laws. Otherwise, every breach of law by a Government would amount to a denial of the equal protection of the laws. We are not aware of any authority in support of that proposition and none has been cited to u•.

Nor are we able to find any support for it in principle. It is not the respondent's caMe that other servams of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him. It seems to us that the appeal must be allowed on the simple ground that the respondent's petition does not show a violation of any fundamental right. The High Court had no power to act under Art. 32 (2A) at all.

We think it right to point out that Arts. 226 and 3ll(2) of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time.

No question of the respondent's application being maintainable in view of these articles, therefore, arises.

The appeal is according!)!. allowed. There will be no order as to costs.

Appeal allowed.

Sarkar].

cl. 12

Ponnammal

cl. 12

cl. 11

Sastri

STATE OF JAMMU KASHMIR

MIR GULAM RASUL

P. B. GAJENDRAGADKAR

A. K. SARKAR

K. N. WANCHOO

K. C. DAS GUPTA

N. RAJAGOPALA AYYANGAR, JJ.

Constitution of India

Jammu and Kashmir High Court

Art. 32(2A)

Constitution of India

Articles 226 and 3

Constitution of India

Art. 32(2A)

State

Art. 32(2A)

Constitution of India

J aswant Singh

R. H. Dhebar

S. N. Andley

J.B. Dadachanji

Rameshwar Nath

P. L. Vohra,.for

SARKAR

February 12, 1955

May 12, 1955

High Court of Jammu and Kashmir

Art. 32(2A)

Constitution of India

State of Jammu and Kashmir

Kashmir

September 8, 1954

October 20, 1954

s. 2

Sarkar

Art. 32

Art. 32(2A)

Art. 32

Art. 32

Art. 14

Jammu

Mir Gulam Rasul

Art. 32

Arts. 226 and 3

Constitution of India

State of Jammu and Kashmir


x96.1

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 uncertainty-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 appellant, 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

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 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 as guardian of his minor daughters as well as of his foster son. He left the mana.gement of his properties to his bro.ther and provided that as soon as his minor daughters attained m, ajority Seetharama should give to them per head one veli of nanja land and one veli of punja land in .va.Uam Nn. 149 in village Nagampadi

Balakrishnan

v. , Hllhalakshuii

Animal

Wanckoo J.

and further provided that the said Seetharama should deliver possession of the remaining properties to Balakrishnan immediately aft er he attained majority.

It was also provided in the will that Seethararua should pay to the minor daughters the income from the properties devised to them after the dPath 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. 175/- in ca8h towards their properties after deducting the kist each year. In 1949 the two daughters claimed possession of their '.:mds 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 vatta.m 149 on the ground of selection made by them. The suit was resisted by the a.ppellant 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.

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 dght of selection was in Seetharama or in the legatees. The High Court has held that the Eng!ish rule of benevolent construction that a legatee has a right to choose in 8UCh circum, t.wces applies to India also and has further held that on the constructiiln of the will in this case the right to chcose was in the legatees and not in Seetharama.

The learned Attorney-General on behalf of the appeUant 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. XXXIX of 1925, which lays down that "a will or bequest not expressive of any definite intention is void for uncertainty" and urges t.hat 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 provisicn of s. 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 a; scertaiu the i11tention of the testator as -to the quantity bequeathed and therefore such a will would be vo1d for uncartainty. 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 arise in cases where a will is not so uncertain as not to be capable of ascribing a definite intention to the testator. In i he first <'ase the stator himself may indicate what

Balakrishnan

1W ahalakshw!

Ammal

uunchoo J.

BGlaArishnan

1', M a4ala1'slami

Ammed

W' O"'MO j,

978 SUPREfE COURT REPORTS (1961}

he intends to bequeath and that indication is sufficient to identify the property bequeathed. In such cases there is no difficulty, for the testator has himself made the selection and the selectfon must be given effect to. The second casemay 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 t.he 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 rulll 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 a.ores out of four acres that lay together and it was held that this was a good devise and the devisee would elect. In another case a testator devised a messuage and ten acres of land surrounding it, part of

& larger number of acres, the choice of such ten acres

was held to be in the devisee (see Hobson v. Blackbun>(')). The principle in these cases was evolved in P(!,(; k v .• Hailssy ('). 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 a.Et 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 Tapky v. Eagleton (3), the testator devised "two houses in King Street". to the le11atee. He however had three houses in King Street and the question a.rose whether the devise was bad for unoertaintv.

Jessel, M. R. held that the words meant " two vf "Aiy

(r) (1833) 1 My .i K. 571: 39 .t:.R. 797, (2)(1726) 2 P. Wm,. 387 ; 2~ F:, Jl, 780, (31(18f9)12 Ch. P. 683.

~I.

3 S.C.R. SUPRE~JE COURT REPORTS 979

houses in King'Street" and that two of the houses out of three passed to the legatee who was entitled tu elect which tw.<i he would take. Reliance in this case was placed on an earlier case Duckmantun v. Duckmantan (').

There thp, testator had two closes of laud in Ridgway Field.

He devised one to one son and another fo 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 v. Hindle (2), 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 TI.oman law that under the will there was a choice to the nephews and uiecc8 and th(>t in case of disagreement among them, the choice was to be determined by lots. \ It is urged that this is r n artificial :ule of cohst1uction and there is no reason to apply it to India. The rule was evolved by English Courts in order tha.t 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 tri bequeath something which could be made definite by choice.

We do not sec why such a rule of common sense to give effect to wiils which are not quite uncertain and which can be made certain should be called :>n 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 thats. 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 inay be some difficulty because there is .mote property of that kind tha, n actually bequeathed, that

(1) (186o) 5 H. & N. 219; 157 E.R. u6o. (>) (1941] Ch. 428,

196I

M ahalakskmi

Am111al

Wanchoo ].

Balakrishnan v.

Mahalakshmi

Wanr.hoo ].

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, Narayana8ami Gramani v. Periathambi Gramani (1), the testator owned land measuring one kani and three quarters. He made a will by whici. he devised one kani thereof to the plaintiff in that suit. The plaintiff filed a suit to recover one kani selected by liim out of the land in question ; 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 lield in that case as follows :--,-

"In a case like the present the devisee has clearly the right to choose. It has been long 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

v. Kolandavelu Mudaliar (2 ). In that case the will gave to the legatee "six acres of good irrigated nauja lands in the village of Pudur ". The testator had 19·40 acres ofland JLnswering 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 C.J. remarked that-

" in England such a bequt 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) (18g5) I.L.R. 18 lllad. -160.

(2) (1915) 29 111.L.J. 717.

.. 3 S.C.lt.

SUPREME COURT REPORTS 981

heirs of a legatee should be allowed tu make the election in the event of the legatee dying without having made it. He therefore distinguished the earlier case of Narayan<Y!ami 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 wa.s 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 p.>inted 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 legatee's heir cannot make the selection is also based on common sense, for t.he testat.or never had the legatee's heirs in his mind when he made the bequest; his intention could only be in a case where selection wa.s 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 N arayanasami <Jramani' s case (1) is correct. The fa.ct that there are ways of partition available to agriculturists in India would make no difference to the a pplica ti on of the rule, for we take it that there are ways of partition available to parties in England lo. The application of this rule WQUld a.void unnecessary litigation also, for once it "is 'known that in such oases the selection is with the legatee the difficulty a.rising out of such wills could be easily resolved without recourse to courts. For this reason

(1) (1895) I.L.R- 18 Mad, 46o.

Batakrishnan

v, }lfahalaksltnii

Ammal

TVanchoo ].

Balakrishntui

Mahalakshmi

Ammal

Wanchoo ].

also we think that this rule of benevolent construction of wills of this description should be applied to India w. .

In this connection we may refer to two other cases to which t, he learned Attorney-General drew our attention. The first-is Asten v. Asten (•).

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. , Sadeley Place, Cotsfield Road." There were four newly built housrs 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 wa8 clearly to select the house l:).imself 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 deract 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 gave one of similar properties to each of several legatees without saying anything more, he intended prima f acie to giYe the right of selection to the legatees according to the priority of the bequests. But h~ pointed out that "it is, of course, essential that the will should ll'>t shew 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 imcompatible with the view that he intended the legatee to select." That was a case where on the ounstruction of the will it was held that the testator himself intended to select.- but the. selection ; failed becai.ise of the uncenairlty in the will. The second case is Bishop v. Holt('). 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

\I) [1894] 3 Ch. D. 260.

(2) [<900) 2 Ch. D, 620.

, ..

, -

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 folly 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 uo. question of any selection by the legatee arose. This case therefore does not in any way wea, ken the rule of benevolent construction by which the' li'lgatee 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 con- 'struction 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 withou.t niaking .the selection, the lands devised to the de.ugh." ters 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 th1<-guardian of his minor. de.ugh ters as well as of his foster son,

namely~ the appellant. Then he said as follows:-

"He (Seethe.re.ma) 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 afore•n.id properties and he shall

Balah, ishnan

v. ,\1ahalakslsmi

Ammal

Wanchoo J.

Balalcrishnan

v. .\I Gllalal:sliini

A.mmal

lVanchoo ).

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 fem:ile 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 ,; iving 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 wao 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 chilcl.ren " in "ontrast with the words "he shall deliver possession ........ " used in the case of the appellant. In the context the words in our opinion mean the saIUe.

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 a51-ything 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 testa.tor 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 be could have made this position clear, even if be 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 corn puting the area to be given to the daughters.

There are nu words in the will from which it can be inferred that Seetharanui was nominated by the testator to make the selection ; nor are there ny 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 <laugh ter 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 da\1ghters and 1s not so uncertain that it is impossible to make it certain, The vaUam is indicated from which the land is to come, the .area of nimja and punja lands to be taken by each

·r:~~~~~Jrifllml~~~:: ; i:':t()it::iti

11&i", li~ ters; it must in the circumstances be held that the testator intended that each daughter will select the land devised out of the vat tam. In this view of the matter, there is no force in this appeal and it is hereby dismissed with costs.

Appeal dismissed •

Balaktishnan v.

~\f ahalakshnri

Atnmal

nanchon ].

E. V. BALAKRISHNAN

ANOTHER. (P. B. GAJENDRAGADKAR

Indian Succession Act

s. 89

Viswanatha Iyer

Seetharama Iyer

Nagampadi

India

Seetharama

Indian Succession Act, 1925

s. 89

Seetharama

M. C. Setalvad

M. S. K.

Sa

S. Gopalaratnam

S. Nara:Jimhan

3undara Raman

A. V. Viswanatha Sa

R. Gopalakrishnan

BalakrisJinau

W ANCHOO

Seetharl!.ma Iyer

abhimanputra

Viswanatha

October 4, 1927

Balakrishnan

Wanckoo

Seethararua

s. 89

Indian Succession Act

England

s. 89

Ammal

uunchoo

Jarman

Jessel

S.C.R. SUPRE~JE COURT

M ahalakskmi

Madras High Court

Pudur

Wallis

N arayanasami

Jramani

Batakrishnan

Romer

Gllalal

vattam

Seetharanui

s. 89