1. This is an appeal against the decree and judgment of the Subordinate Judge of Kumbakonam in a suit filed by the respondents against the appellant for recovery of certain properties together with past and future profits. The respondents are the daughters of one Viswanatha Ayyar who died in 1927 leaving behind him his last will and testament, dated 4th October, 1927. He had no male issue, and it is recited in the will that he was treating his natural brother Sitarama Ayyar's third son, the appellant as his foster-son (abhimanaputra). In and by his will, Viswanatha Ayyar inter alia provided that his brother Sitarama Ayyar should as soon as his two daughters who were then minors attain majority give to them one veli of nanja land and one veli of punja land in vattam No. 160 out of the properties possessed by him. The remaining properties were bequeathed to the defendant-appellant.
2. The suit out of which this appeal arises was brought by the two daughters for the recovery of the lands bequeathed to them. They set out in Schedules G and D respectively the lands selected by them towards the one veli of nanja land and one veli of punja land bequeathed to each of them. The defendant was in possession of the entire properties left by Viswanatha Ayyar under an agreement to pay to the plaintiffs towards their share of the income 224 kalams of paddy and Rs. 175 in cash after deducting the kist each year. The plaintiffs alleged that there was still a balance due for the year 1949 in respect of the paddy rent. The main defence of the appellant was that the plaintiffs had no right to make their own selection of one veli of nanja land and one veli of punja land bequeathed to each of them. He further pleaded that punja land would not include tope or garden land. He claimed himself the right to select and allot the lands of the extent mentioned in the will. So far as the paddy rent was concerned he pleaded that the plaintiffs agreed to each remit 9 kalams out of the rent due. The learned trial Judge held against the defendant on all the material issues and passed a decree in favour of the plaintiffs for separate possession of the properties set out in Schedules C and D and for recovery of a sum of Rs. 101-4-0 being the value of 18 kalams of paddy due for fasli 1358 and directed the future mesne profits to be determined under Order 20, Rule 10 of the Code of Civil Procedure. Hence this appeal.
3. Learned Counsel for the appellant again pressed before us all the three points. The first point, that is, the right of the plaintiffs to make the selection, is directly covered by the decision of a Division Bench of this Court in Narayanaswami Gramani v. Periathambi Gramani I.L.R. (1895) Mad. 460. There the learned Judges were considering a clause in a will which bequeathed to a legatee one kani of punja land in Ambili Mottu Palla. The whole plot measured 1 kanis. The legatee sued for possession of a particular portion measuring one kani out of the plot in question. It was held by the learned Judges that the plaintiff had a right to make a selection and was entitled to a decree as prayed. They observed:
In a case like the present the devisee has clearly the right to choose. It has been long settled that if a map devises two acres out of four acres that lie together, that is a good devise and the devisee shall select.
4. Reference was made to decisions of the English Courts, which had laid down that the right of selection was with the legatee. The learned Subordinate Judge held in favour of the plaintiffs on the authority of this decision. There can be no doubt whatever that the rule which obtains in England even to this day is what is slated by the learned Judges in Narayanaswami Gramani v. Perialhambi Gramani I.L.R. (1895) Mad. 460. Vide Jarman on 'Wills', 8th Edn., pp. 477, 478. So far as India is concerned there is no other direct decision on the point cited to us. Reference was, however, made to a subsequent decision of this Court in Bharadwaja Mudaliar v. Kolandaivelu Mudaliar (1915) 29 M.L.J. 717. There a testator bequeathed certain lands to his father's sister's son in the following terms:
I give to my father's sister's second son, Murugesa Mudaliar, 6 acres of good irrigated nanja lands in the village of Padur.
5. The testator had over 19 acres of nanja land in that village. The legatee died without having selected the six acres and his heir brought a suit against the executors for the six acres and for mesne profits. It was held that the bequest was not void for uncertainty and the legatee had a vested interest in 6 out of the 19 acres and was entitled to partition by metes and bounds by Court. Of the two learned Judges who formed the Bench, Sir John Wallis, C.J., referred to Narayanaswami Gramani v. Periathambi Gramani I.L.R. (1895) Mad. 460 and proceeded to distinguish it thus:
In the present case unfortunately the legatee died without making the election, and the accepted view in England would appear to be that the will cannot be read as intending that the heirs of the legatee should be allowed to make the election in the event of the legatee dying without having made it.
6. This was undoubtedly a very valid ground for distinguishing the decision in Narayanaswami Gramani v. Periathambi Gramani I.L.R. (1895) Mad. 460. The learned Chief Justice, however, made certain observations which are relied upon by learned Counsel for the appellant. He said:
These are, however, somewhat artificial rules to apply to the will of a Hindu agriculturist who was no doubt familiar with the ordinary process of partitioning lands by the Court in a partition suit and I think it much more likely that his intention was that in the absence of agreement the lands in question should be partitioned by the Court than that the legatee should be left to make a selection for himself.
7. It may here be noticed that the learned Chief Justice was not laying down any rule of law but was only indicating that the presumption of intention would be that the choice should be left to the Court by way of partition. The other learned Judge, Srinivasa Ayyangar, J., never referred to the decision in Narayanaswami Gramani v. Periathambi I.L.R. (1895) Mad. 460 at all. But he referred to various hypothetical instances of devises similar to the one which was before them. The learned Judge nowhere says that in law there can be never any application of the rule of selection adopted in Narayanaswami Gramani v. Periathambi Gramani I.L.R. (1895) Mad. 460. Indeed the learned Judge observed:
So also when a testator is possessed of lands of different descriptions as pasture lands, building sites, garden lands, forest lands and cultivable lands and if he gives only a particular extent a right of selection may be implied. But in the case of lands which may not be all of the same quality, the testator's intention may be to give to the legatee a right to select a particular quantity from out of a particular locality; that is a matter of construction.
8. The learned Judge relied upon the fact that the language used by the testator did not indicate that the property should vest only on selection to be made by him. We see nothing in this decision to cast a doubt on the correctness of the earlier decision in Narayanaswami Gramani v. Periathambi Gramani I.L.R. (1895) Mad. 460. That decision is binding upon us and we follow it with respect. The plaintiffs must be held to have the right of making the selection of the lands in a particular vattam.
9. The appellant's next contention was that punja lands would not include garden or thottam land or tope and the plaintiffs should be restricted in their choice to dry lands, as such, that is, cultivable dry lands. We see no warrant for this construction. Nanja and punja are well known terms of classification of lands in this country, and revenue registers give us accurate information as to the class to which any particular land falls. It is admitted by learned Counsel for the appellants that what is classed as thottam or garden lands would be described in the revenue records only as punja lands. In the absence of any express indication in the will to exclude the category of thottam lands or topes from the lands described as punja we must hold that whatever lands are not nanja must be treated as punja. This contention of the defendant must also fail.
10. There remains only the question of the balance of paddy due to the plaintiffs for their share of the income for fasli 1358. It is common ground that the agreed rental was 224 kalams of paddy and Rs. 175 cash rent. The question is whether the plaintiffs consented to remit 9 kalams each out of this amount of paddy due to them. There is no documentary evidence to prove such consent. The defendant himself did not give evidence of such consent. The brother of the defendant was examined on behalf of the defendant as D.W. 1 who deposed that each of the plaintiffs had agreed to remit 9 kalams. His evidence, was, however, not believed by the learned trial Judge and we in appeal attach great weight to the learned Judge's assessment of his evidence. There is no other evidence to prove the case of the defendant as to remission. On the other hand, the evidence of P.Ws. 1 and 2 was definite that there was no remission. The probability also is that there was no such remission. We agree with the learned Judge that the plaintiffs never consented to any remission of their share of the income for fasli 1358, and they are therefore entitled to the balance of 9 kalams each.
11. In the result the appeal fails and is dismissed with costs.