John Wallis, C.J.
1. The legacy in this case is of six acres of good irrigated nanja lands in the village of Pudur. Assuming that the legacy is out of the nanja lands owned by the testator, the Will does not say -which of them the legatee is to have; and in England such a bequest 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: Tapley v. Eagleton (1879) 12 Ch. D. 683 : 28 W.R. 239, Bacon's Abridged Title, Election A, and the other authorities referred to in Narayanasami Gramani v. Periathambi Gratnani 18 M.P 460, where the rule was applied and recognised. The reasons for reading into the Will something that is not there, viz., that the legatee should himself make the selection, was that without such a provision, the legacy was regarded as bad for uncertainty. 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. See the old authorities cited in Bacon's Abridged Title, Election C. That would be equivalent to reading it as a bequest of six acres to be elected by the donee and his heirs. In Earl of Bandcn v. Moreland (1910) 1 Ir. R. 220 : 11 I.L.R.. 471, where under a settlement a power of election was given to the beneficiary, his heirs or assignees, it was held that this disposition offended against the rule against perpetuities, but that the powers of the beneficiary and of his heirs or assignees were severable, and that an election made by the beneficiary himself in his life-time would be supported. The same rules were renignised and applied in Savill Brothers Limited v. Bethell (1902) 2 Ch. 523 : 7 L.J. Ch. 652 : 87 L.T. 191 : 50 W.R. 580. 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. In this view I see no sufficient reason why the Court should not give effect to the testator's intention by partitioning off and allotting to him land of the nature and extent 'indicated in the Will out of the land left by the testator and I concur in the order proposed by my learned brother, whose judgment I have had the advantage of reading.
Srinivasa Aiyangae, J.
2. This appeal raises a question of some difficulty on the construction of a clause in the Will of one Dhanakoti Mudaliar. The clause in question reads thus: 'l give to my father's sister's second son, Murugesa Mudaliar, my big house at Tiruvannamalai and also six acres of good irrigated nanja lands in the village of Pudur in Arcpt Taluk and also give him Rs. 3,000 without any restriction from me.' No question arises now as to the bequest of the house or of the legacy of Rs. 3,000. Murugesa Mudaliar, the legatee, is dead and his sons are the plaintiffs in this suit. It appears from the evidence that the testator had, besides other lands, 19-40 acres of land in the village of Pudur which answer the description of good irrigated nanja lands, though all of them are not of quite the same quality. They are the lands described in Schedule B to the plaint. The plaintiffs' claim six out of the 19-40 acres and state that the 1st defendant, who is the residuary legatee and also executor by implication, has failed to put them in possession of the six acres and they ask for a decree directing the 1st defendant to deliver possession of six acres of good irrigated nanja lands out of the B Schedule lands in Pudur. In the Schedule, there is a note stating that items 1 to 15 measuring 9 acres 2 cents are good irrigated lands and that plaintiffs want 6 out of the 9 acres 2 cents. The 1st defendant pleaded that lie never objected to the plaintiffs' taking their portion of the nanja lands in Pudur bequeathed to their father and that he was not, therefore, liable for mesne profits: and also proceeded to state that the provision in the Will was vague, indefinite and uncertain, and that the plaintiffs had to make their selection from the whole of the lands in Pudur village possessed by the testator, and not solely from the 19-40 acres (paragraph 10 of the written statement). At the 1st hearing, the 1st defendant definitely gave up the contention that the devise of the six acres was void for uncertainty. 'Judge's Notes printed at page 12 of the printed book.) The only question then that required determination was whether the plaintiffs were entitled to 6 out of 19-40 acres or 6 out of the whole of the extent, the particular six acres being determined by division and not by selection. The District Judge in the Court below has, however, held that. the plaintiffs were entitled to select six acres of land out of the lands belonging to the testator in the village of Pudur. The 1st defendant appeals against the decree and contends that the legacy of six acres was void for uncertainty, and the first question is whether there is any uncertainty as to the subject-matter of the legacy.
3. The Will is in English; but it is clear that the testator was not able to express himself accurately or clearly in that language. The lands which are given are ordinarily cultivable lands. Their extent is certain and their locality immaterial, as their value does not depend upon their situation as in the case of house sites. There is nothing in the Will to indicate that the testator intended the legatee to select any particular six acres he desired. It seems to me that the testator had no idea of any selection by the legatee. In cases, where out of a number of distinct articles or properties some are bequeathed, it is obvious that the testator must have intended the particular properties to be selected by some one, whether it is the legatee or the executor; as for example, one out of the several houses or so many out of the horses in the testator's stable. If again, the devise is of a certain quantity of land at or near a particular place, as for example, twenty acres of land near a house or surrounding a house, then presumably the testator leaves it to the legatee to select the particular twenty acres. 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. In the case, for instance, of cash or commodities, there could be no doubt that a legacy of a particular quantity means a fraction of the whole. In the, case of lands which may not be all of the safe 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. In this case, the lands given are ordinary cultivable lands and there is no reason to suppose that the testator made any difference or had any idea of difference with reference to any particular place or locality. I think the reasonable interpretation of the words used by him is that he intended to give to the legatee that fracture out of the total quantity of land which would give him the extent specified in the Will. It is also clear that the testator intended the legatee to have the six acres of land immediately on his death. If the testator intended that the property should vest only on a selection made by the legatee, the language used by him would have been different. We should, I think, construe the Will so as, if possible, to give effect to the legacy. The modern doctrine', as stated by Jessel, M.R., 'is not to hold a Will void for uncertainty unless it is utterly impossible to put a meaning upon it.' In re Reborts Repington v. Roberts (1881) 19 Ch. D. 529 : 50 L.J. Ch. 265 : 45 L.T. 450. I am, therefore, of opinion that the legatee had a vested interest in six out of the 19-40 acres as a tenant-in common along with the residuary legatee, and is entitled to division by metes and bounds of the 19-40 acies, and have an allotment made to him of six acres. He is, I think, also entitled to mesne profits of the lands for three years prior to the suit as claimed in the plaint. Subject to this modification, the appeal is dismissed with costs.
4. The memorandum of objections is allowed. There will be no order as to costs.