Laxman Balwant Bhopatkar Vs. The
Charity Commissioner, Bombay [1962] INSC 180 (1 May 1962)
01/05/1962 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1962 AIR 1589 1963 SCR (2) 625
CITATOR INFO:
R 1965 SC1281 (290)
ACT:
Public Trust-Charitable purpose-Education to
mak people conscious of political rights-Political purpose--Object of general
public utility-Bombay Public Trusts Act, 1950 (Bom. 29 of 1950), ss 2 (13),
9(4).
HEADNOTE:
Lokamanya Tilak died on August 1, 1920,
leaving a will. On August 16, 1920, his two sons and the executor appointed by
him under the will executed a trust deed in respect of two newspapers "The
Kesari" and "The Maharatta", and the property and the machinery
pertaining thereto. Clause 1 of the trust deed recited: "This Trust deed
has been made as a means to the fulfillment perpetually and uninterruptedly.
after the death of the late Lokmanya Bal
Gangadhar Tilak of that very object of his with which he took all activities
after he took charge of the newspapers-the Kesari and Maratha such as of
spreading political education through the newspapers and thereby making people
alive to their political rights and carrying on other multifarious public
activities conducive to the national ideal etc." A survey of the public
life and activity of Lokmanya Tilak showed that his purpose in taking over and
conducting the newspapers was political, in the sense of seeking to achieve by
means of rousing the consciousness of the people to their condition, a
political awareness, by which adjustments of a political character would be
demanded and enforced by the persons who imbibed those truths or were
influenced by such writings.
The question was whether the aforesaid trust
was a public charitable trust within the definition in S. 2 (13) read with s. 9
(4) of the Bombay Public Trusts Act, '1950, so as to justify an order by the
charity Commissioner requiring the trustees to have the trust 626 Held, (Subba Rao,
J., Dissenting), that a political purpose is not a charitable purpose and does
not come within the meaning of the expression "for the advancement of any
other object of general public utility" in s. 9 (4) of the Bombay Public
Trusts Act, 1950.
The life mission of Lokmanya Tilak which he
sought to active and achieved through the two newspapers, and which was set out
in the trust deed dated August 16, 1920, as the object for which the trust was
founded, was a political purpose and, therefore, the trust was not required to
be registered under s. 18 of the Act.
Per Subba Rao, J.-The, object of Tilak, after
he took over the newspapers, was to work for the regeneration of the country,
and he thought that national education through newspapers and writings which
would make people alive to their political rights, was the most important item
in the uplift of the country. The trust executed to perpetuate the said object
was clearly a trust for general public utility within the meaning of s. 9 (4)
of the Act. The expression "object of general public utility" is very
comprehensive and it includes every purpose, whether political or otherwise,
provided it is an object of general public utility.
Bonar Law Memorial Trust v. Commissioners of
Inland Revenue, (1938) 17 Tax Cas. 508, Trustees of the Tribune Press, Lohore v
Commissioner of Income Tax, (1939) L. R. 66 I. A.
241, All India Spinners' Association v.
Commissioner of Income Tax (1944) L. R. 71 1. A. 159, Re Hopkinson: Lloyds Bank
Ltd. v. Baker, [1949] 1 All E. R. 346, Subhas Ohandra Bose v. Gordhandas Patel,
I. L. R. [1940] Bom. 254, and In re Lokmanya TilakJubilee National Trust Fund
Bombay, (1941) 43 Bom. L. R. 1027, considered.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 313 of 1958.
APPEAl from the judgment and decree dated
February 2, 1956, of the Bombay High Court, in Appeal No. 775 of 1955 from
Original Decree.
Veda Vyasa, S. G. Patwardhan and Ganpat Rai
for the appellants.
H. N. Sanyal, Additional Solicitor-General of
India, N. S.
Bindra and R. H. Dhebar, for the respondent
and the State of Maharashta (Intervener).
627 1962. May 1. The following Judgments were
delivered.
The judgment of Sinha, C. J., Rajagopala
Ayyangar, Mudholkar and Venkatarama Aiyar, JJ., was delivered by Rajagopala,
Ayyangar, J.
RAJAGOPALA AYYANGAR, J.--This is an appeal on
a certificate of fitness granted by the High Court of Bombay under Art. 133 (1)
(b) & (c) of the Constitution, and the question raised for consideration is
whether the "Kesari & Mahratta Trust" of which the appellants are
the Trustees was or was not a "public Trust" within the meaning of
the Bombay Public Trust Act (Act XXIX of 19-50) which it will be convenient to
refer to as the Act.
The Act which by its long title was enacted
"to regulate and to make better provision for the administration of
public, religious and charitable Trusts, in the State of Bombay" came into
force on August 14, 1950. Section. 18 of the Act enacted:
"18. (1) It shall be the duty of the
trustee of a public trust to which this Act has been applied to make an
application for the registration ofthe public trust. .....................
Section 66 of the Act provides penalties
according to a table appended to it for contravention of the several sections
set out in it and among the sections so included is s. 18(1). In this state of
affairs the trustees of the appellant-trust addressed on April 16, 1952, a
communication to the Assistant Charity Commissioner, Poona region, Poonabeing
the authority empowered to effect the registration of the Trust, if it was a
public Trust-that ,,the Kesari & Mahratta Trust" was not a
"'public Trust" Within the meaning of the Act and submitted that it
was not liable to be, registered there under. Section 19 of the Act empowers an
Assistant 628 Charity Commissioner to make an enquiry for ascertaining, inter
alia, "whether a Trust exist and whether such Trust is a public
Trust." This officer held an enquiry under this provision, giving an
opportunity to the trustees of the Trust to make representations and urge their
contentions.
Thereafter be recorded a finding under s. 20
of the Act that it was a public Trust to which the Act applied and passed an
order directing the Trust to be registered.
Section 70 of the Act provides for appeals
being filed against findings recorded and orders passed under s. 20 by
Assistant Charity Commissioner s, to the Charity Commissioner and the trustees
availed themselves of this remedy and repeated their contentions before the
Charity Commissioner. The appellate-authority however reached the same
conclusion as the Assistant Charity Commissioner and dismissed the appeal.
Section 72 of the Act enables a party aggrieved by the decision of the Charity
Commissioner under a. 70 on the question "whether a trust exists and
whether such trust is a public trust" to apply to the Court to set aside
the said decision. The trustees moved the Court under this provision but this
application was dismissed by the learned District Judge, Poona. It was from
this judgment of the learned District Judge that the trustees filed an appeal
to the High Court of Bombay who also dismissed the appeal but granted the
certificate which has enabled the present appeal to the filed.
It would be seen from the above narrative
that the entire question raised by the appeal is concerned with whether the
Kesari & Mahratta Trust was a "Public Trust" within the meaning
of the Act so as to justify the order of the assistant Charity Commissioner
requiring the trustees to have the institution registered. Section 2 of the Act
629 which contains definitions defines a public Trust in cl. (13) thus:
"an express or constructive trust for
either public, religious or charitable purpose or both..............
to read only the portion relevant for this
appeal. The other material provision is s. 9 of the Act which defines
"Charitable purpose". The purpose defined include:
(1) relief of property or distress, (2)
education, (3) medical relief, and (4) the advancement of any other object of
general public utility but does not include a purpose which relates(a)
exclusively to sports, or (b) exclusively to religious teaching or
worship." There are certain other provisions of the Act to which our
attention was drawn during the course of the arguments but as both their
construction as well as their constitutional validity which were the subject of
debate before us would arise only if the Trust were a public charitable Trust
within the definition in a. 2(13) read with s. 9, we purpose immediately to
proceed to consider the submissions made by learned Counsel in relation to this
crucial point.
The Trust in question was created by a deed
dated August 16, 1920 by three persons. The first two authors of the Trust were
the sons of Lokmanya Bal Gangadhar Tilak who had died on August 1, 1920,
leaving a will executed on April 5, 1918, to the terms of which we shall refer
presently. The third executant was the executor 630 appointed by the deceased
under his said will. The Trust deed in its preamble refers to the execution of
the will and after reciting the fact that the will was agreed to in all respect
by the three exeoutants proceeds to state that the Trust deed in regard to the
Kesari Printing Press Newspapers etc. was being executed in order that the
objects recited in the will may be fulfilled. The Trust deed contains 13
clauses but of these those relevant for the consideration of the matters
arising in the appeal are only two and they are cls. 1 and 8. Clauses 1
specifies the objects of the Trust, while el. 8 makes provision for
contingencies arising from the trustees becoming incapable of discharging their
duties as well as from the institution ceasing to exist. It reads:
"In the event of any_ of the said
Trustees becoming incapable of discharging the duties of the Trust for any
reason whatsoever, such person as in the opinion of both the trustees, may be
fit to discharge the duty in accordance with the wishes of the Lokamanya Tilak
shall be appointed as a trustee for the prep etuation of this institution and
Trust. If perchance, there is only one Trustee left for making this
appointment, he shall appoint a Trustee following the above policy. And all the
rights of the Trustee of the said institution under this Trust deed, shall vest
in the Trustee so appointed. If for any reason whatever, new Trustees are not
appointed or none of the prior Trustees survives, the panchas mentioned (under
appointment of New Trustees by the Panchas) in clause 8, under the heading of
'the Printing Press' in the Will of the Lokamanya Tilak or the Panohas
appointed in their own place by such Panchas shall appoint the new Trustees.
But if such appointment of New Trustee is not made in 631 the manner stated
above, the Trust Estate shall revert to Nos. 1 and 2 of us or to their heirs,
'Primarily' in the capacity of Trustees as such. If for any reason this
institution ceases functioning, for the time being but if it is possible to
revive that institution, such Trustees who may be present and fit to carry on
the institution under this Trust-deed. However, if this institution, ceases to
exist, for any reason whatsoever, and it is thought that it is not possible to
revive it at any time later on, the trust property shall be of the ownership of
Nos. 1 and 2 of us or their heirs. The trustees of the institution
individually, or their heirs shall have no private (personal) right whatever to
this property." It is only necessary to add that learned Counsel for the
appellant-Trustees assured us that the appellants had no intention at all of
abandoning the objects of the' Trust or ceasing to be bound by the terms of the
Trust deed even in the event of our holding that the Trust was not a public
charitable trust, but that cherishing as they did the memory of Lokmanya Tilak
they would carry on the mission entrusted to them by the great leader for ever.
As almost the entire argument in the appeal before us as well as the decision
against the appellants in the Courts below have rested wholly on the
interpretation and legal effect of the provisions contained in el. 1 it is
necessary to set this out in full. The Trust deed is in Marathi and the
following is its English translation accepted by both parties :
"This Trust deed has been made as a
means to the fulfillment perpetually and uninterruptedly after the death of the
late Lokmanya Bal Gangadhar Tilak of that very object of his with which he took
all activities after be took charge of the newspapers-the 632 Kesari and
Maratha such as of spreading political education through the newspapers and
thereby making people alive to their political rights and carrying on other
multifarious public activities conducive to the national ideal etc."
Pausing here, is it necessary to mention that the translation as it appears in
the Paper Book reads ",such as spreading national education through those
newspapers etc." It was however agreed that the adjective
"national" was not a correct rendering of the Marathi expression
"'Rajakia" which was more accurately denoted by the word
"political" and we therefore proceed on the translation which was
accepted before us by both the parties.
It will be seen from the preamble and cl. 1
that the Trust was brought into existence or the purpose of fulfilling the last
wishes of the Lokmanya as expressed in his will dated April 5, 1918., The terms
of the will have therefore relevance for understanding the object sought to be
achieved by the Trust. The will was made in Colorado on April 5, 1918. Most of
the dispositions of the will are taken up with legacies to his sons but the
disposition we are now concerned with occurs in cls. 3 and 4 of the will and we
shall read the relevant portions of those clauses. Clause 3 (1) which is headed
"The Printing Press" reads:
"I have made a public trust of the
newspapers, the office, the printing press, the machine and the foundry, the
newspaper library and security-money in respect of newspapers" This,
however, was not accurate; for though evidently the Lokmanya had intended to
create a trust, no formal deed there for had been executed and it was this
deficiency that was supplied by 633 his sons and the executor appointed under
the will. Clause 4 of the will is of relevance and it ran:
"The policy of the papers (editorial
policy) shall be kept as it is, Under no circumstances shall it be
changed." The other provisions of the will do not bear upon the points
arising in this appeal.
The question now for our consideration is
whether under cl. 1 of the deed of trust a public charitable trust has been
created. Analysing the provision of the clause it would be seen that the prime
object of the trust was the fulfilment of the basic purpose which animated the
activities of the late Lokmanya and which he sought to accomplish through the
two newspapers-Kesari and Mahratha after he took charge of them. This has to be
read with the provision of the will directing the continuance of the two
newspapers with their policy entirely unchanged. As if in explanation or
exemplification of this prime purpose we have the statement that the object the
Lokmanya sought to achieve through the two newspapers was that of ,spreading
political education and thereby making the people alive to their political
rights and carrying out other multifarious public activities conducive to the
national ideal.
Pausing here, it is necessary to mention that
though the object of the trust was thus intimately bound up with the policy and
purpose of the Kesari and Mahratha after the Lokmanya took charge of them, no
evidence was led at any stage by either party as to what precisely was the
policy or the object of the two newspapers which was sought to be achieved by
the Lokmanya through them. Nor was evidence placed before the Court of the
precise aims and objects which the Lokmanya in calcuted by to teachings through
these nows634 papers. It was, possibly assumed that the life and ideals for which
the Lokmanya stood, and in particular the matters which he considered as the
prime purpose and policy of these two newspapers with which he, was connected
for over two decades, were matters of history so well-known to the Courts and
authorities in Maharashtra and therefore on which no formal evidence was
required to be adduced. We would however, add that such evidence on the record
would have lightened our task and that it is with this handicap that the point
in controversy in the appeal has to be decided.
This might be the convenient stage at which
reference could be made to a previous occasion when the interpretation of the
trust-deed with particular reference to the question of its character as a
public charitable trust came up for consideration before the Courts. Section 4
(3) of the Indian Income tax Act, 192 2 exempts from income tax "any
income derived from property held under a trust or other legal obligation
wholly for religious or charitable purposes in so far as such income-is applied
or is accumulated for application to such religious or charitable purpose The
section carried a definition of "charitable purpose" which was stated
to include "relief of the poor, education, medical relief and the
advancement of any other object of general public utility" which, it would
be seen, is in terms the same as the definition of a "charitable
purpose" under the Act. The claim of "the Kesari and Mahratha
Trust" to exemption under this provision came up for consideration before
the High Court of Bombay on a reference under s. 66 (2) of the Indian
Income-tax Act. The reference was heard by Beaumont, C. J., and Rangnekar, J.,
and the learned Chief Justice delivering the judgment of the Court said:
"To my mind the trust which is contained
in cl. I of the deed is too vague and wide to 635 be regarded as a charitable
trust within the meaning of the Income-tax Act. Some of the purposes, no doubt,
are charitable but others are not and the whole of the funds may be applied to
non-charitable purposes. The purposes include organising public movements and
even if you limit those general words by the words 'calculated to promote the
national ideal, it seems to me impossible to say that the promotion of public
movements calculated in the view of the trustees to promote the national ideal
can be regarded as necessarily of public utility." The learned Judges
therefore held that the trust was not entitled to exemption under s. 4(3) of
the Income-tax Act .
Learned Counsel forth appellant did not
contend before us that this judgment was yes judicature in these proceedings
for the decision of the matter now before us, but as expressing the views of
the learned Judges on the construction of the document whose interpretation is
the subject of dispute in the present case. With these observations we shall
put aside that decision and proceed to construe the terms of cl. (1) of the
deed to find out how far the object sought to be achieved are within the
definition of "charitable purpose" within the Act.
In doing this, it would be convenient first
to set out the construction which found favour with the learned Judges of the
High Court in the judgment now under appeal and then consider the sub. missions
made by learned Counsel on either side. Referring to cl. 1 and the matters to
which it refers as needed to be done for fulfilling the objects of the trust,
the learned Judges said that these were : (1) the awakening in the minds of the
people a consciousness of their political rights by spreading the knowledge of
politics through the newspapers" 636 Kesari" and "Mahratha"
and (2) organising various public movements calculated to promote the national
ideal. They went on to state that the second purpose could not amount to a
charitable purpose under the Bombay Public Trust Act and observed "As the
nature and character of the public movements which were to be promoted for
furthering the national ideal were not even indicated, much less specified it
seems impossible to say that the Organisation of public movements which in the
opinion of the trustees might be calculated to promote the national ideal can
be regarded necessarily as an object of general public utility within the
meaning of clause (4) of section 9 of the Act. Those public movements would
obviously not fall under any of the other clauses of section 9 either. Clearly,
therefore, the second of the two purposes mentioned in clause 1 of the
trust-deed cannot be considered a charitable purposes." They, however,
were of the view that the first purpose, viz., of "awakening a consciousness
of political rights among the people by spreading the knowledge of politics
through the newspapers" would be a charitable purpose. In this context
they considered that the decisions of the English Courts that the attainment of
political purposes would not be a charitable purpose as advancing an object of
general public utility could not be applied in India, and that even if the same
were applicable, that under the Trustdeed before them, the awakening of
political consciousness among the people was not identical with the advancement
of political objects and that the awakening of such consciousness need not
necessarily be for achieving a political purpose being out of the way they
considered that the awakening, of such consciousness would be 637 an advancement
of an object of public utility.
Several points were raised by learned Counsel
for the appellant in support of his contention that the trust-deed did not
create a charitable trust. His first submission was that the learned Judges of
the High Court were wrong in considering that there were two objects to be
subserved by the trust for the attainment of which the trust was founded, but
only a single object and that object was political in its nature and that
consequently it was not a charitable purpose within the meaning of the law. His
next submission was that even if there were two objects as the learned Judges
of the High Court had held, they were not really independent objects but both
of them were dominated by a single purpose which was political in its nature.
At the base of bath of these interpretations of the deed lay the submission
that the object to be attained by the trust was political, and if so, it was
not charitable.
We consider that there is considerable force
in the submission of learned Counsel that the trust has been founded with a
view to achieve a single objective or purpose, viz., "'the fulfilment
perpetually and uninterruptedly" of "the object with which the late
Lokmanya took up all activities after he took charge of the newspapers 'Kesari'
and 'Mabratha'." It might be that the activities for which the newspapers
were utilised after he took charge of them disclosed more than purpose, but the
common link between every such line of activity was that it stemmed from a
political purpose, for the newspapers were made to serve as the vehicle for
achieving his objectives.
The question therefore as to the purpose of
the trust would have to be resolved by examining the various activities in
which he himself engaged and the object with which he engaged in them, but the
latter is not the basis 638 upon which the High Court has proceeded in reaching
a finding that the trust-deed disclosed a duality of purpose one of which the
learned Judges recognised was not charitable but the other was held to be so.
The words in the second limb of the first clause referring to "the
spreading of political education through the newspapers and thereby making
people &live to their political rights" and secondly "the
carrying on other multifarious public activities conducive to the national
ideal" were really meant as illustrations of activities undertaken by the
late Lokmanya during his life-time as is manifest by the use of the words
"such as" before the clause. If the object with which the Lokmanya
took up his activities after he assumed charge of the newspapers was dominated
by a political purpose and the newspapers were used by him to achieve that
objective, the illustrations of his activities set out in the clause must be
similarly construed. But to this we shall revert later.
This apart, there is one other way in which
the matter might be approached. The learned Judges of the High Court have held
that the object signified by the words "carrying on other multifarious
public activities conducive to the national ideal" was much too vague to
serve as an object or purpose of an enforceable trust, for besides the
vagueness involved in the description of the activity as "conducive to the
national ideal etc", there is a further vagueness introduced by the words
"other multifarious public activities". One mode of testing the
validity of this object would be whether one could uphold the deed as
constituting a valid enforceable charitable purpose if it had merely made
provision for the trust-fund being utilized for carrying' on multifarious
public activities conducive to the national ideal etc." It is obvious that
this question could be answered only in one way and that in, favour of holding
that the trust was too vague to 639 be valid. If therefore the last portion of
the clause was left out of account, two questions would have to be considered
(1) whether on a proper construction of cl. (1) read with the rest of the deed,
the object sought to be achieved is or is not a single one, and (2) whether the
object indicated by the words "spreading of political education through
the newspapers and thereby making people alive to their political rights"
would be a charitable purpose within the meaning of s. 9 of the Act ? If the
last part of the clause (1) were out, as too vague.. the object of the Trust
would read, to quote the relevant words "the fulfilment perpetually and
uninterruptedly of the very object with which he (the Lokmanya) took up all
activities after he took charge of the newspapers such as spreading political
education throughthese newspapers and thereby making people alive to their
political rights." We shall immediately proceed to deal with the import of
the words ',the very object with which he took up all activities after he took
charge of the newspapers", but before we do so we might state that we have
no hesitation in holding that the words of the clause we have just extracted
indicate but a single purpose,, viz., the fulfilment of the objects with which
Tilak took up all activities after he took charge of the two newspapers.
We have earlier drawn attention to the
feature that no evidence was placed before the authorities under the Act or
before the Courts as to the object which the Lokmanya sought to achieve by the
two newspapers Learned Counsel for the appellant invited our attention to the
reported decision of the Bombay High Court where certain writings and articles
of the late Lokmanya came up for consideration, and in particular to the
articles which formed the subject-matter of the charges against the Lokmanya in
prosecutions for sedition. But if one were, confined to the these 640 they must
obviously give us only a partial and truncated idea of his activities and so
are apt to afford but a distorted picture of the objects with which the two
newspapers were conducted. We therefore examined the literature bearing on the
life and work of this great leader and particularly two recent books on the
topic "Bala Gangadhar Tilak by Parvate (1958) which was brought to our
attention by Mr. Sanyal appearing for the respondent, and Lokmanya Tilak by
Dhananjay Keer (September, 1959)". In doing so we have confined our,selves
to the facts there stated and have refrained from taking into account the
evaluation by the authors of Tilak's activities or their comments on any particular
views on public or social matters entertained by the subject of their
biography.
As a result of this examination we gather the
following facts which are of relevance to the point before us. Tilak, though he
was associated with the two newspapers from their start in or about 1881, took
over the editorship of the Kesari in 1887 and became the sole proprietor of
both the papers by 1893 and was in charge of I heir conduct till his death in
1920. Tilak was a public figure who dominated the political firmament of the
country for near three decades.
He was a rebel against political wrongs. He
was a champion of all who were oppressed and conceived it as his sacred mission
to rouse the people to a sense of their wrongs and of their strength in winning
their salvation, for it was his firm conviction that petty tyranny by the
foreign bureaucracy was possible because of the ignorance of the people and,
their apathy to their condition. His ideas might be gleaned from his
observation that people must fight for the vindication of their rights and that
those who were unmoved at the sight of injustice and the high handed policy of
the Government, should not be regarded as human beings.
The two newspapers were intended by Tilak 641
to be the mechanism by which the wrongs done to the people should be brought
home to them and their conscience roused to a sense of the injustices and
oppressions to which they were subjected. In R., undertaking the responsibility
of running the Kesari and the Mahratha it was a clear indication of his resolve
to throw himself completely into public life and to devote himself to the task
of the political education of the masses. He wrote in the Kesari about every
public grievance and every public cause and this made him the champion of
popular causes and amass leader.
The two the Kesari and the Mahratha were in
no sense mere newspapers. They were primarily views-papers, vehicles of public
opinion and the news they contained were carefully selected to be helpful to
the views propagated in them Tilak looked upon Kesari as the chief vehicle for
propagating his views as he wanted them to be disseminated as widely as
possible. The objective determined its style; it was direct, simple forthright.
The papers championed the cause of the underdog and everywhere fought against
injustice, contained a study of public complaints and grievances, exposed
oppressive officers, criticised fearlessly and made constructive suggestions
for the reform of the administration and championed the peoples cause in every
sense. During Tilak's days Tilak and Kesari became synonymous terms. The Kesari
had been the citadel of the national fight and remained impregnable even
through repressive campaigns and became a national asset. It was Tilak's
confirmed view that the ills of the nation demanded political reforms and not
immediate social reforms. Tilak challenged the right of the foreign bureaucracy
to sit in legislative judgment on lndian society. It was the view of Tilak that
respect must be paid to the prejudices of people and that one must try to make
the humblest of them feel that he was one of them. Tilak was convinced 642 of
the futility of appeals to people made in the form of speeches and resolutions
with their eyes fixed towards Government and realised that the Indian National
Congress with which be was closely associated from 1889 would be able to
ameliorate the condition of the people if the masses were attracted to it and
their power harnessed to the chariot of the Congress. It was the main role in
his life to stir up the people against their poverty, degradation and slavery.
To foster opposition to British rule, to
bring people into conflict with Government and to make Government unpopular was
the great aim of Tilak's speeches, writings, and leadership. The enthusiasm and
vigour of the people bad to be utilized for keeping up their pride in the
achievements of their ancestors and as a means of educating the common people.
He sought to rouse the pride of the people in their past heroes so as to unify
them into one body to achieve political liberation. His plea was that people
should be taught what their rights were and how they could get their grievances
redressed. That was the way to increase the influence of the Congress. He
taught people to act fearlessly though peacefully and lawfully and get their
grievances redressed, for the principle underlying his philosophy wag that
foreign yoke could be over thrown only when people were awakened and
discontented, when it is not possible for a foreign Government to hold them under
its sway. Without attracting the attention of the people to the unjust state of
affairs no political progress was possible, nor reform in the administration.
From about 1903 Tilak was gradually shifting to what the Moderates used to call
Extremism, smouldering as he was at the apathy shown by the Moderate leaders
towards active politics. The Congress which gave occasion for orators
brandishing polished phrases and ended with prayers and petitions had grown
sterile. He was coming to realise that politics must cease to be the pastime of
the old orators and 643 title holders. Though he felt that the record of the
Congress left no room for disappointment or despair, its triumph lay in
awakening the soul of the nation. The Moderates accepted British rule as a
divine dispensation but the militant nationalists led by Tilak-refused to
believe in the doctrine of divine dispensation. After the partition of Bengal
in 1905 and the agitation which followed it Tilak wrote articles discussing the
policy of boycott of foreign, goods, and particularly of foreign cloth, and he
considered that a boycott on a national scale was the proper remedy, but its
results depended upon actions and Lot upon words.
Tilak was then the spearhead of the Swadeshi
movement, but even here it was fired and inspired by a political purpose, for
he said:
"If the Indian Government dissociates
itself from the commercial aspirations of the British, Nation, then it will be
time for Swadeshi workers to consider the question of dissociating their movement
from politics.
But so long as politics and commerce are
blended together in the policy of the Government of India, it will be a blender
to dissociate Swadeshi movement from politics." And in the Kesari he
declared that if it was unavoidable to use a foreign article, they should give
preference to articles produced in Asiatic countries and the next preference
should be given to other European countries and America.
It was Tilak who made it the mission of his
life to arouse the people against political slavery and foreign rule. He
resolved to organise the people under the banner of the Congress and to make it
the real spokesman of the people.
The two newspapers served as the vehicle
through which he aimed to achieve these objects. Possibly nothing brings out
*ore forcibly the purpose and aim of the 644 Lokmanya which animated his
conduct of the newspapers than a self-appraisal which is extracted in the
biography by Parvate already referred to.
A controversy arose in 1919 about Tilak's
neglect of or apathy to social reform and his exclusive attention to political
progress and there was an attack by Dr. Paranjpye on this aspect of the matter
in an article in the Bombay Chronicle reviewing Tilak's sins of omission and
commission.
Tilak published a rejoinder in which he
reviewed his whole career. In the course of this letter Tilak said, "My
views on political and social matters are well-known to the public. The charge
against me is that my activity and propaganda are one-sided. I do not hold that
social reconstruction must be undertaken prior to political emancipation. I
attach greater importance to the latter." Speaking of the Kesari he said,
"It is true that I made it an organ exclusively of political propaganda. I
do not deny it, but at the same time let me point out that the political
awakening in Maharashtra since then is more the work of this paper and my party
than Mr. Paranjpye and the men of his ilk." Before concluding this part of
the case it is necessary to refer to an aspect of the matter arising out of our
summary of the Lokmanya's activities which he pursued through the two
newspapers. It would be seen that he was wholly concerned with achieving the
intimate association of the people and their representatives in the
administration and governance of the country, and if possible, the entire
elimination of foreign rule altogether, and the two newspapers were utilised
for educating and rousing people to achieve these. What Tilak's policy or
activities would have been after complete independence had been achieved and
the policy which he would have the papers pursue subsequently is an interesting
question, but one which we consider not relevant, 645 for the determination of
the question before us. What we are concerned with is as regards the object which
Tilak sought to achieve by conducting these newspapers, and to perpetuate which
the trust was founded.
The survey, though very inadequate of the
public life and activity of the Lokmanya in particular relationship with the
two newspapers undoubtedly show that his purpose in taking over and conducting
the newspapers was clearly political, in the sense of seeking to achieve by
means of rousing the consciousness of the people to their condition, a
political awareness, by which adjustment of a political character would be
demanded and enforced by the persons who imbibed those truths or were
influenced by such writings.
The next question to beconsidered is whether
a political purpose, i.e., for educating people not on theories of political or
social sciences as a subject of academic study, but for moving them to
practical action to achieve governmental changes is or is not a charitable
purpose.
There was some debate before us as to the
import of the expression "charitable" and arguments were addressed in
particular as to the exact point of difference between, the concept of charity
under the English Law and that under the Indian Law. No doubt, as pointed out
by Lord Wright in Chichester Diocesan Fund & Board-of Finance
(Incorporated) v. Simpons (1) the term "charity" has not, in England,
always had a precise connotation. What constituted a charitable purpose has
there been derived from the preamble of the Act 43 Elizabeth 1 Ch. IV (1601)
which was' taken to signify those purposes which would be held to be charitable.
It is not' necessary for us to set out the
objects enumerated in that preamble but it was always considered that list was
not exhaustive though to decide whether a purpose was in law charitable or (1)
(1944) A.C. 341, 353.
646 not, it has been the practice of the
English Courts to refer to that preamble. In these decisions besides the
objects there enumerated, others which by analogy were deemed to be
"within the spirit and intended of that statute" have been held to be
charitable in the legal sense. Ever since however the judgment of Lord
Macnaghten in Commissioners for Special Purposes of Income Pax v. Pemsel (1)
the expression 'charitable purpose" has been understood to comprise four
main heads : (1) relief of poverty, (2) advancement of education and learning,
(3) advancement of religion, and (4) other purpose,% beneficial to the
community or the advancement of objects of general public utility. As regards
the last clause, Lord Macnaghten expressed the view that under English law
there might be some purposes of general utility which might be charitable and
some which might not be, the true test being whether the particular purpose was
within the spirit and intention of the statute of Elizabeth.
Whether the concept of charity under Indian
law is or is not wider than what Lord Macnaghten considered to be the scope of
charitable purpose in England does not really arise for consideration in the
case before for us, we are bound by the terms of s. 9 of the Act which has
defined the several categories into which a charity might fall.
It was not the contention of the respondent
that the trustdeed constituted a charity under any other head than that of the
fourth clause of s. 9 viz., ",the advancement of any other object of
general public utility." In saying so what we desire to point out is that
it was not the contention of the respondent that by the reference to
"political education" in cl. 1 of the Trust-deed, the charity was one
for the advancement of "education" within s. 9 (2). It would be seen
that ultimately the question to be decided is whether the achievement 647 of a
political purpose, in the sense of arousing, in people the desire and
instilling into them an imperative need to demand changes in the structure of
the administration and the mechanism by which they are governed, could be said
to be the "advancement of an object of general public utility."
Having regard to the very limited nature and scope of the question before us it
is not necessary to consider the precise points of the difference between the
English law as understood by Lord Macnaghten and that which finds place in the
Indian statutes dealing with the relevant topic. We say this because we have
judgments--of the Privy Council construing the terms of s. 4 of the Indian
Income-tax Act of 1922 in which enactment the purposes which are comprehended
within the expression "'charitable" are defined in exactly the same
manner as we find in s. 9 of the Act now in question and where in particular,
the. learned Judges had to consider the question whether the achievement of a
political purpose, as we have explained earlier, was a charitable purpose.
Before however referring to the Privy Council
it would be of advantage if we refer briefly to the decisions in England which
have taken the view that if a purpose were political it is not charitable i.e.,
it does not advance an object of general public utility. The earliest case to
which we need make reference is the decision of Rowlatt, J., in Commissioners
of Inland Revenue v. The Temperance Council (1). It arose out of a claim by the
Temperance: Council for exemption from payment of income-tax in respect of the
income and dividends derived by the Council, on the ground that the Council was
established for charitable purposes only. The purpose of the Council was
"by united action to secure legislative and other temperance reform."
Dealing with this claim the learned Judge said (1) (1926) 10 Tax Cas. 748.
648 "The work of the Council, it was
provided, was to be a of strictly non-party character. That is a wholly
irrelevant consideration. When it has been said that a political purpose is not
a charitable purpose, that conclusion is not relevant, because political
purposes are or may be purposes mixed up with party politics;
the word 'political' does not mean that in
that connection at all." The learned Judge went on to state that the
object of the trust being to secure a certain line of legislation, it would not
be a charitable trust.
Bonar Law Memorial Trust v. Commissioners of
Inland Revenue (1) is the next case to which reference might usefully be made.
The done under the trust was the Chairman, on the date of gift, of the central
office of the Conservative Party. and the fund was donated by an oral trust and
a deed was executed after the death of the donor to secure the objectives with
which the donor had made the gift. The objects were, inter alia, to honour the
memory of Bonar Law (a former leader of the Conservative Party), "to
preserve a historical building from destruction and to use it as a college for
the education of persons in economics, political and social science, etc., with
special reference to the development of the British Constitution, and in such
other subjects as the governing body might deem desirable." The intention,
of the governing body was to educate students in political principles and to
exclude propaganda in support of a particular party, and students were admitted
to the college without any reference to their political beliefs or inclination.
It was, however conceded that the governors of the college and the members of
the education committee were wholly composed of members of the Conservative
Party and that lectures were given on the conservative party (1) (1933) 17 Tax
Cas. 508.
649 Organisation but not on Liberal or
Socialist organisation.
The question before the Court related to the
claim of this trust for exemption under the Income Tax Act. Finlay, J., in
rejecting the claim of the trust to the exemption, observed "It is
necessary to ascertain exactly, as far one can, what the question to be decided
here is. It was suggested by Mr. Needham that a trust for the promotion of
Conservative principles would be a good charitable trust.
I am not prepared to hold that. In my
opinion, there is no authority. which has gone as far as that. It is true that
Stirling, J., in the case of Scoweroft (1) left the matter open, but, in my
opinion, on the present position of the authorities and also, as I think, on
the principle of the thing, it is impossible to hold that a trust which is
simply a trust for the propagation of the political principles of a particular
party is a good charitable trust." The learned Judge then extracted a
passage from the judgment of Russell, J., in In re Tetly (2 reading:
"Subsidising a newspaper for the pro.
motion of particular political or fiscal opinions would be a, patriotic purpose
in the eyes of those who considered that the triumph of those opinions would be
beneficial to the community.
It would not be an application funds for a
charitable purpose." Scowcrofes case which is referred to by Finlay, J,.
is reported in [1898] 2 Ch. 638. Under a will a particular property was devised
to be set apart "to be maintained for the furtherance of Conservative
principles and for religious and mental (1) [1898] 2 Ch. 638. (2) (1923) 1 Ch.
258, 262.
650 improvement and to be kept free from
intoxicants and dancing". The case before the Court arose on an
originating summons taken out 'by the trustees of the will to determine the
validity of the devise. It was urged in support of the summons, by Counsel who
disputed the validity of the disposition that a gift in furtherance of
Conservative principles wan not a good charitable gift and that as it was
impossible to say how much to be devoted to the advancement of the Conservative
cause and how much to religious and mental improvement, the purpose was
vitiated and the entire devise was void. On the other hand, it was the
contention on behalf of the Attorney-General that the bequest for a religious
purpose was good and was not vitiated by being associated with or intended to
promote any particular views, unless such views be illegal or immoral. It was
further urged on his behalf that the gift before the Court was not one merely
for the furtherance of Conservative principles but for Conservative principles
and religious, and mental improvement, i. e. for religious and mental
improvement in, connection with Conservative principles and that looking at the
substance of the gift they were really and principally for the mental and moral
improvement of the villagers, and not being in, validated by the tinge of
Conservative principles, were good and valid charitable gifts. Stirling, J.,
accepted this submission of the Attorney General in support of the validity of
the trust. The learned Judge said:
"Whether or not a gift for the
furtherance of Conservative principles is a good charitable gift is A question
upon which I do not think it necessary to express any opinion in this case,
because it seems to me that the reading which is suggested is not the true one,
but 651 that this is gift for the furtherance of Conservative principles and
religious and mental improvement in combination. It is either a gift for the
furtherance of Conservative principles in such a way as to advanced religious
and mental improvement at the same time, or a gift for the furtherance of
religious and mental improvement in accordance with Conservative principles;
and in either case the furtherance of religious and mental improvement is in my
judgment, an essential portion of the gift..
It is, therefore a gift in one form or
another for religious and mental improvement, no doubt in combination with the
advancement of Conservative principles; but that limitation, it appears to me,
is not sufficient to prevent it from being a perfectly good charitable gift, as
undoubtedly it would be if it were a gift for the furtherance of religious and
mental improvement alone." In re Tetley (1), referred to by finlay J., in
Boner Law Memorial Trust case (2), was concerned with the validity of a bequest
under which the trustees were directed to apply property "for such
patriotic purposes or objects and such charitable object or objects in the
British Empire as they in their absolute discretion should select". The
Court of appeal affirming a judgment of Russell, J., held that a patriotic
purpose might not necessarily be charitable and therefore the bequest was void.
Dealing with the head of "Charity" relating to "trusts for
purposes beneficial to the community" Barrington, L.J.,said.
"You inquire what the divisions of
charities are, and you come to the conclusion that there is one miscellaneous
set of chari(1) [1923] 1 Ch. 258, 262.
(2) (1933) 17 Tax. Cas. 508.
652 ties which can be classed under that
head; but to stateduce from that the notion that every purpose of general use
to, the community must be a charity is just about as logical as to draw from a
statement in the report of an insurance society that 'persons insured with us
may be divided into men, women and children' the deduction that every man,
every woman, and every child is insured in that society. It seems to me,
therefore, that it is open to us to say, that merely because a trust may be
said to be for the general use of or for some purpose beneficial to the community
is not necessarily confined to "charitable purposes' in the legal
acceptable of that term............ Expression 'patriotic purposes' even if it
be confined to purposes beneficial to the State, is not necessarily confined to
charitable purposes, and a gift for "patriotic purposes' is therefore so
uncertain as to be void." The position is summarised in Halsbury's Laws of
England (1) thus:
"'A trust for the attainment of
political objects is invalid, not because it is illegal'-for everyone is at
liberty to advocate or promote by any lawful means a change in the lawbut
because the court has no means of judging whether a proposed change in the law
or will not be for the public benefit, and therefore cannot say that a gift to
secure the change is a charitable gift." The law, as stated here, is an
extract from the judgment of Lord 'Parker in Bowman v. Secular Society, Ltd.(2)
(1) 3rd Edn., Vol. 4, para 523-the title being contributed by Danckwerts 2)
[1917] A. C. 406 442.
653 We shall now turn to the decisions of the
Privy Council in appeals from India which bear upon the question as to, whether
a trust created for a political purpose or with a view to attaining political
objects could be, held to be a charitable trust within the meaning of the words
"the advancement of an object of general public utility". in the
Trustees of the Tribune Press, Lahore v. Commissioner of Income-tax(1) the
court was concerned with the claim to exemption under s. 4 (3) of the Indian
Income-tax Act which, as we have pointed out earlier, is for purposes relevant
in the present context, identical with s. 9 of the Act. The exemption was
claimed by the Trustees of the Tribune Press under a Trust which directed them
"to maintain the said Press and newspaper in an efficient condition keeping
up the liberal policy of the said newspaper and devoting the surplus income of
the said press and newspaper..................... in improving the said
newspaper and placing it on a footing of permanency It.
might be mentioned that evidence was placed before
the Privy Council of selected issues of the, newspaper which threw light on the
character and the, policy of the paper in lifetime of the founder as
explanatory of the direction contained in the I words ",keeping up the
liberal policy of the said newspaper". The reference under s. 66(2) of the
Income-tax Act came before a Division Bench of the Lahore High Court and as the
learned Judges were divided in their opinion, the question was referred to full
bench of three judges and by a majority the learned Judges held that the income
of the trust was not exempt. It was from this judgment that the trustees
preferred the appeal to the Privy Council. Sir George Rankin who delivered the
judgment of the Judicial Committee first rejected an argument which sought to
sustain the charitable nature of the first by a (1) [1939] L. A. 66. I. A. 241.
654 contention that the trust might be
regarded as of an educational character, the submission being that the
establishment and maintenance of an efficient newspaper catering to the needs
of a populous district where was need for such a paper fell within such a
purpose. The next point that was urged had been that the property was held
under a trust for ,the advancement of an object of general public
utility". The learned Judge pointed out that the statutory law in India
had for a long number of years and in several instances defined
"'charity" in the way which it had been found in Indian Income-tax
Act with which they were concerned. Two of the learned Judges of the High Court
had expressed an opinion that on the question whether a particular object or
purpose was of general public utility, the true test was not what the Court
considers to be beneficial to the Public,, but what the testator or the author
of the Trust considered to be so. This view was dissented from and it was
pointed out if this were accepted trusts might be established in perpetuity for
the promotion of all kinds of fantastic (though not unlawful) objects.
The Court had therefore a responsibility in
the matter in coming to a decision as to the object of the trust and to
discover whether it satisfied the statutory test of ,advancing general public
utility."' The Judicial Committee expressed its assent to the view that an
eleemosynary element was not essential for a use being charitable and so the
fact that the newspaper was not given free to its subscribers, but only sold
them for a price did not detract from the trust being charitable. Sir George
Rankin then dealt with the main objection that was taken to the trust not being
charitable and that was on the ground that the Tribune newspaper was intended
by its founder to carry on political propaganda and was intended to be devoted
to the advocacy of particular legislative 655 measures considered by its founder
to be measures of reform and it was this political character which the
respondents contended prevented the trust from being held to be an "object
of general public utility". After referring to the various English
decisions to most of which we have ourselves referred, the learned Judge
proceeded "These English decisions are in point 'in so far only as they
illustrate the manner in which political objects, in the wide sense which
includes projects for legislation in the interests of particular causes, affect
the question whether the Court can regard a trust as being one of general
public utility." He pointed out that it was not suggested by the
Commissioner of Income-tax that the newspaper was intended to be a mere vehicle
of political propaganda but was to be an instrument for the dissemination of
news and for the ventilation of opinion upon all matters of public interest,
and recorded his conclusion that questions of politics and legislation were
discussed in the paper only as many other matters were discussed and that it
had not been made out that a political purpose was the dominant purpose of the
trust. He summarised the position stating that the object of the paper might
fairly be described as "the object of supplying the Province with an organ
of educated public opinion and that it should prima facie be held to be an
object of general public utility. Having regard to the evidence before them as
to the contents of the paper it was not a newspaper intended for the promotion
of particular political or fiscal opinions." The next case to which we
desire to make a, reference is the decision in All India Spinner's Association
v. Commissioner of Income-tax (1). As (1) (1944) L.R. 71 A.I. 159.
656 the cause title Itself would indicate,
the point in dispute also related to whether the Association was entitled to
exemption in respect of its income under s. 4 (3) (1) of the Income-tax Act.
The Commissioner of Income-tax who made the reference to the High Court under
s. 66(2) of the Income-tax Act of the question whether the income of the
Association was liable to income-tax and to super-tax, expressed his opinion
that the dominant purpose of the Association was political because of the
intimate connection between the Association and the Indian National Congress
and besides that the manner in which the Association carried on business was in
no way different from the activity of a trading concern. The High Court of
Bombay answered the question in favour of the Revenue. The reason for this
holding was that, though the object of the Association was "the relief of
the poor", still the income which was being assessed to tax was not
derived from "property hold under a trust for a religious or charitable
purpose". There was no property as such from which the income was derived
but the profits arose out of the sum total of the activities of the
Association, i. e, out of the business carried on by it and the fact that one
of the objects was the relief of poor would not render the income derived
exempt from tax. Quite a different and for out purposes a More relevant ground
on which the case for revenue was rested was the aim of the association to
afford relief to the Poor, was coupled with another object of the trust which
was the prevention of the importation of foreign cloth into India and, as the
Association was created with a view to assisting the All India Congress it was
contended that therefore it had a political object. On appeal to the Judicial
Committee, Lord Wright who delivered the judgment of the Board observed 657 "They
hold that the income sought to be assessed is income derived from property hold
under a trust or other legal obligation wholly for religious or charitable
purposes... ............... It is now recognized that the Indian Act must be
construed on its actual words and is not to be, governed by English decisions
on the topic. The English decisions on the law of charities are not based on
definite and precise statutory provisions. They have been developed in the
course of more than three centuries by the Chancery Courts. The Act of 43
Elizabeth (1601) contained in a preamble a list of charitable objects which
fell within the Act, and this was taken as a sort of chart or scheme which the
court adopted as a groundwork for developing the law. In doing so they made liberal
use of analogies, so that the modern English law can only be ascertained by
considering a mass of particular decisions, often difficult to reconcile The
difference in language in s. 4(3) from Macnaghten's classification and
particularly the inclusion in the Indian Act of the word 'Public' instead of
the word 'community' is of importance.
The Indian Act gives a clear and succinct
definition which must be construed according to its actual language and
meaning.
English, decisions have no binding authority
on its construction, and though they may sometimes afford help or guidance,
cannot relieve the Indian Courts from their responsibility of applying the
language of the Act to the particular circumstances that emerge under
conditions of Indian life The statement of the object excludes any question of
profit making, and also excludes any element of party politics. Any
participation in political propaganda would be ultra vires The real underlying
object of the Association was to benefit the poor agriculturists in the
villages, specifically, at that time of the year when they are not actively
engaged in agricultural operations.... The primary object of the Association
was thus the relief of the poor There is good ground for holding that the
purposes of the Association included the advancement of other purposes of
general public utility There exact scope may require on other occasions very
careful consideration Though the connection of the Association with the
Congress was relied on as inconsistent with general public utility because it
might be for the advancement primarily of a particular party, it is
sufficiently clear that the Association's purposes were independent of, and
were not affected by, the purposes or propaganda of Congress." On this
reasoning the appeal of the Association was allowed.
We consider that these two decisions of the
Privy Council in so for as they hold that a political purpose, in the sense of
a propaganda for the achievement of a political objective, is not a charitable
purpose, i. e., not one for the advancement of an object of general public
utility correctly interpret the Indian statute and the law in India.
Whatever difference there might be between
the definition of "charity" and "charitable purpose" in the
English and' Indian law, we consider that there is none so far as regards,
political purposes" in the sense in which we have indicated earlier. In
this context, it is significant that Chichester Diocesan Fund etc. v. Simposns
(1) in which (1) (1944) A.I. 341, 353.
659 Lord Wright speaking in the House of
lords expounded the uncertainties of the English law as to the meaning of
"charity" and the appeal of the All India Spinners Association (1)
before the Judicial Committee were heard at about the same time, and in consequence
the view of Lord Wright expressed in the latter decision that a political
purpose is not an object of general public utility even on the wider language
of the Indian statute reinforces our conclusion on the point. Even though the
concept of charity under the Indian Law might be wider than as understood in
England, particularly under the residuary head "advancement of an object
of general utility", we consider that it would not include a
"political purpose" in the sense indicated already.
The latest case on the point to which we
would like to refer is a decision of Vaisey, J., in Be Hopkinson : Lloyds Bank
Ltd. v. Baker(2) for the reason that the learned Judge refers to all the
earlier English cases to which we have already adverted as also to the decision
of the Privy Council in the Tribunal case. The purpose of the trust as recited
in the bequest was the creation of "an educational fund to be utilized at
the absolute discretion of the trustees for the advancement of adult education
with particular reference to the following purpose (but without limiting their
discretion in applying the fund to adult education), that is to say, the
education of men and women of all classes on the lines of the Labour Party's
memorandum headed " A Note on Education in the about Party." Vaisey,
J., held that the direction to the trustees to have particular reference to the
memorandum of the Labour Party dominated the whole trust, forming its
overriding and essential purpose which rendered the trust as one for the
attainment of political objects and was not, (1) [1949] 1 All. E.R. 346.
(2) (1944) L. R. 71, I.A. 159.
660 therefore, charitable. The learned Judge
pointed out:
"Political propaganda masquerading,
using the word not in any sinister sense, as education is not charitable",
and went on to add "The principle that legitimate and proper political
aims and ambitions are not charitable is far too well settled for me at this
stage to attempt to apart from or refine upon it. I wish to make it clear that
the purpose indicated in this memorandum and the purpose indicated by reference
thereto in the testator's will are lawful, legitimate, and, 'from the point of
view of those who put them forward, wholly desirable and proper, but they are
not charitable. The law has been laid down with charity over a long period of
time, and, if the trust is not charitable, it is one which the court cannot
uphold. The reason for that, I think, is partly indicated in what was said,
also by Russell J., in Re Hummeltenberg (1923 1 Ch. 237), viz., that, if the
trust is one which the court could not administer if the trustees disclaimed
their duties there under it would be a trust which could not be supported in
law.........................
The decision in Srowcroft, (4a) the learned
Judge observed, did not impinge upon, or limit the effect of, the general
proposition to which he referred. He concluded by saying that there could be no
doubt that the testator's object was, not education in the proper sense of that
word, but the furtherance of his political views and the better equipping of
those who make it their business to further them.
We are clearly of the opinion that a
"political purpose" is not a charitable purpose as being one 661
"for the advancement of any other object of general public utility"
within s. 9 (4) of the Act.
To summarise theposition:
(1) The object for which ,The Kesari &
Mahratta Trust" was established was the achievement of a single purpose,
viz., to continue in perpetuity the activity for the fulfilment of which Lokmanya
Tilak took up the two newspapers.
(2) The specification in cl. 1 of the
Trust-deed that these activities were "directed to the spreading of
political education through the newspapers and hereby making people alive to
their political rights" was intended to describe the object of the
Lokmanya in taking up the newspapers and correctly described the same, as seen
from the public life and activities of Tilak, particularly in the matter of his
conduct of the two newspapers.
(3) The two newspapers were designed by the
Lokmanya to be the vehicle for educating the mass of the population to a sense
of the grievances suffered by them under foreign rulers, with a view to rouse
them to political action and demand a share in Government. He was a full-time
politician. At a time when Indian men of learning were eulogising British rule
and the masses were inert and lethargic and oblivious to their degradation
Lokmanya, by his propaganda and leadership sought to infuse into the minds of
the masses selfrespect and courage. By his writings in these papers, Tilak
demonstrated to the people that the foreign rule rested on no moral foundation
and when he made people realise this, the achievement of freedom became
assured. That is why Tilak has been aptly termed the father of India's freedom
struggle.
(4) The life mission of Lokmanya which he
sought to achieve and achieved through the two newspapers, and which is set out
in the trust-deed as 662 the object for which the trust was founded was
therefore a political purpose.
(5) A political purpose is not charitable
under s. 9 of the Act and hence, the '.trust was not required to be registered
under s. 18 of the Act, and the order of the Assistant Charity Commissioner
confirmed by the Charity Commissioner, directing the Trust to be registered was
erroneous and should have been set aside by the District Court of Poona in
Miscellaneous Application No.325 of 1954.
The appeal is accordingly allowed and the
order of the Assistant Charity Commissioner directing the Trust to be registered
confirmed by the Charity Commissioner on appeal is set aside. The appellants
will be entitled to their costs in all the Courts.
SUBBA RAO, J.-I have had the advantage of
persuring the judgment prepared by Rajagopala Ayyanger, J., and I regret my
inability to agree. The facts are fully stated in the judgment of my learned
brother and I need not restate them here, except to the extent necessary for
appreciating the question raised in this case.
Bal Gangadhar Tilak executed a will on April
5, 1918, and died on August 1, 1920. On August 16, 1920, his two sons and the
executor appointed by him under the will executed a trust deed, Ex. 12, in
respect of two newspapers ',The Kesari" and ,The Mahratta", and the
property and the machinery pertaining thereto. The question is whether the
trust created under the said document is a public trust within the meaning of
the Bombay Public Trusts Act, [950] Bombay Act XXIX of 1950), hereinafter
called the Act. The material provisions of the Act read:
663 "Section 2. (13) ,public trust'
means an express or constructive trust for a public, religious or charitable
purpose or both and includes a temple, a math, a wakf, a dharmada or any other
religious or charitable endowment and a society formed either for a religious
or charitable purpose or for both and registered under the Societies
Registration Act, 1860." "'Section 9. For the purpose of this Act, a
charitable purpose includes(1) relief of poverty or distress, (2) education,
(3) medical relief, and (4) the advancement of any other object of general
public utility but does not include a purpose which relates(a) exclusively to
sports, or (b) exclusively to religious teaching or worship." The Bombay
High Court held that the purposes of the trust were, (1) awakening in the minds
of the people a consciousness of their political rights by spreading the
knowledge of politico through the newspapers "The Kesari" and
"The Mahraths", and (2) organizing various public movements
calculated to promote the national ideal; and held that the first was a
charitable put-pose and the second was not. As the Charity Commissioner,
Bombay, did not file any appeal questioning the finding of the Bombay High
Court in so far as it went against him, I shall assume the correctness of the
said finding, and proceed to consider whether the first purpose is also not a
charitable purpose as is contended before us on behalf of the appellants.
664 Before doing so, it would be convenient
to consider the scope of s. 9(4) of the Act, for it is agreed that the trust is
not covered by the other clauses of the section. It is common place to observe
that where the language of an Act is clear and explicit, we must give effect to
it for the words of the statute speak the intention of the Legislature. When
the words of a statute are unambiguous, it would be safe to consider them
without reference to cases. The words of cl. (4) of s. 9 of the Act are of the
widest amplitude and are free from any ambiguity. The key-words are ,general
public utility". "General" means pertaining to a whole class;
"Public" means the body of the
people at large, including any class of' the public; "utility" means
usefulness.
Therefore, the advancement of any object of
usefulness or benefit to the public or a section of the public, as
distinguished from an individual or group of individuals, is a charitable,
purpose. The clause excludes expressly two purposes, namely, a purpose which
relates exclusively to sports and a purpose which relates exclusively to
religious teaching or worship, from the purposes mentioned in cl. (4)
indicating thereby that all objects of general public utility, except those
expressly excluded there from, are included in the general words used in cl.
(4). Whenever a question arises whether a particular purpose is a charitable
one within the meaning of that clause, one has to ask the question whether its
object is to benefit the public.
Before 1 consider the English case-law
developed in the peculiar circumstances of that country, which is more likely
to obstruct than to clear the path of construction of an Indian statute, let me
look at the terms of the trust deed to ascertain whether the purpose of it was
one of general public utility as indicated above, 665 The relevant part of the
trust deed reads:
"'This trust deed is made as a means to
the fulfillment perpetually and uninterruptedly after the death of late
Lokmanya Bal Gangadhar Tilak of that very object of his with which he took up
all activities, after he took charge of the newspapers "The Kesari"
and "The Mahratta", such as of spreading national education through
those newspapers and thereby making people alive to their political rights and
carrying on other multifarious public activities conducive to the' national
ideal etc.
I am omitting for my consideration the last
clause of the trust deed, namely, "carrying on other multifarious public
activities conducive, to the national ideal etc.", as the High Court has
hold that clause does not indicate a charitable purpose and there is no appeal
by the respondent against that finding. I should not be understood to have
expressed any view on the correctness of that finders. The opening words show
that the trust-deed was executed for "the fulfillment perpetually and
uninterruptedly the object of late Bal Gangadhar Tilak." The adverbial
phrase "perpetually and uninterruptedly" indicates beyond any
reasonable doubt that the object was not a temporary one but was such that it
should be carried on for ever. This excludes any idea that the object was
merely to replace the British Government by an Indian Government, for, in that
event, the object would come to an end with the achievement of independence.
The object, therefore, must be something higher than a mere change of political
power from the British to the Indian hands. The next part of the trust deed
gives a clue to the scope of the object. The activities mentioned therein
reflect the content of the object. The activities mentioned are those 666 that
Bal Gangadhar Tilak carried on after he took charge of the newspaper ',The
Kesari" and "The Mahratta." The nature of the activities is
indicated and it is the spreading of national education through those
newspapers and thereby making the people alive to their political rights. The
words "such aa" indicate that the said activity is not exhaustive of
the object of Bal Gangadhar Tilak, but is only illustrative of the activities.
The question, therefore, is whether the activities, such as spreading of
national education through the newspapers and thereby making the people alive
to their political rights, are of charitable nature within the meaning of s. 9
(4) of the Act. It may be mentioned that learned counsel for the appellants
argued that the words "'national education" do not correctly represent
the expression in Marathi language and that he would like us to read in the
place of "national education" the words ,,political education".
In the High Court this translation has been accepted as the correct, one and it
is not advisable or proper for this Court to allow the counsel to question at
this stage the correctness of the said translation. India is a multilingual
country and appeals come to this Court from different areas speaking different
languages. The Judges of this Court do not understand all the languages. In the
circumstances ordinarily this Court shall accept the official translation as
correct; The expression "national education" excludes the idea that
the said education is intended to cover, or confined to, any particular group.
A, nation can be educated in different ways and one of the ways is certainly by
spreading ideas through well conducted newspapers. While "The
Mahratta" published in English may reach only the intelligentsia, "The
Kesari" published in Marathi may enlighten the uneducated people-I am
using this word in the limited sense of people who are not educated in Englishspread
over the innumerable villages of the Marathi speaking area. The nature 667 of
the education sought to be so imparted is described as one to make the people
alive to their political rights. To make the people conscious of their
political lights is not the same thing as to indoctrinate them in the ideology
of a particular political party. Political rights have been defined in Corpus
Juris, Vol. 49, p. 1076 thus.:
"'Those which may be exercised in the
formation or administration of the government;
the power to participate, directly or
indirectly, in the establishment or management of the government; those rights
which belong to a nation, or to a citizen, or to an individual member of a
nation, so distinguished from civil rights, namely, local rights, of a
citizen." In Cyclopedic Law Dictionary, 3rd Edn., the meaning of the
exprsssion ',,political rights" is given as. follows:
"A political right is a right
exercisable in the establishment or administration of government, while a civil
right is a right accorded to every member of a distinct community or nation
with reference to property, family or marriage, and the like. Political rights
consist in the power to participate, directly or indirectly, in the
establishment or management of government." Political rights, therefore,
are not rights pertaining to any particular political party. They are rights of
every citizen irrespective of his party affiliations, which he is entitled to
exercise in the formation or administration of a government. In the context of
a modern state, education in political rights may include diverse aspects of
it, such as, political, economical social etc. It is the fundamental of any
good government of a State that the people belonging to that state shall know
their 668 political rights. The importance of the said education has no
relation to the form of government existing at a particular time. It is
important both in a self-governing State, as well as in a colonial State.
Unless the people know their rights, they cannot work either for their freedom
or elect proper persons to represent them after attaining freedom. No education
is more important than political science, for not only good government but also
the maintenance of independence, to a large extent, depends upon the political
consciousness of' the people of a particular State. If that be so, I find it
impossible to say that spreading of national or even political education to
make people conscious of their political rights is not an object of general
public utility within the meaning of s. 9 (4) of the Act. It is said that the
activities of Tilak were subversive in character and were directed to change
the form of government, that is, to replace the foreign government with a
national government that his object was to break law and, therefore, was not a
charitable one. This argument does great injustice to Tilak, who was on all
accounts a great patriot of his days. No material has been placed before this
Courts to characterise him as a political opportunist or a person whose sole
object was to wrest the political control from the British Government by any
means foul or fair. Indeed he has now become a historic figure and in the
absence of any material before us, I think I am justified in looking into some
reputed book on the life of Tilak.
In Tahmankar's "Lokamanya Tilak"
the objects with which the newspapers ",The Kesari" in Marathi and
"The Mahratta" in English were started are given thus at p. 26:
"'It was in order to lay the
corner-stone of a future revolution that Tilak and his co-workers decided to
launch two newspapers, the Kesari, written in Marathi, and the 669 Mahratta in
English. The prospectus, published in 1880............. I... boldly declared
that kesari would,deal comprehensively with political and economic conditions
in the country, carry objective literary reviews of new works in Marathi, and
would particularly emphasize and spotlight, the course of world events and
politics." In the leading article of the first issue of Kesari dated
January 4, 1881, it was stated, referring to Britain, thus:
"In that country, through the powerful
medium of the Press, a vigilant eye is kept on the public conduct of every
functionary from the highest to the lowest-from the Prime Minister to the
pettiest civil servant which has enabled the British to enjoy a reasonable
guarantee that no case of injustice should long remain concealed and unexposed."
The editor of the newspaper also declared his intention to try to improve
social conditions by frankly telling the people what was evil and harmful in
their way of life. The same author defines briefly the object of the two
newspapers thus at p. 27:
"Kesari was to cater for the needs of
the' mass ignorant population, who have generally no idea of what passes around
them and who therefore must be give in the knowledge of such topics as concern
their everyday life by writings on literary, social, political, moral and
economic subjects . The Mahratta, on the other band, kept in view the more
advanced portion of the community who require to be provided with material for
thinking intelligently on the important topics of the day'. 'The tone and
temper of Kesari were 670 democratic; it aim was popular education and public
agitation. The Mahratta was to serve as the authoritative organ of educated
public opinion in Maharashtra. It discussed comprehensively every question of
high politics, and offered its readers a selection of the views of foreign and
Indian journals and publicists on the questions of the day." Though Tilak
was in the beginning closely associated with the papers, later on he took over
the editorship of both the newspapers and became their sole proprietor. The
author describes how the papers were mounded in the hands of Tilak, at p. 39:
"Kesari was produced not to entertain
the people, but to instruct and guide them. It was a newspaper for the people
and its purpose was to make them think and act. Tilak was an editor-philosopher
who had a message to give to his readers and be gave it with fire and
imagination. There was nothing meekly-mouthed about his writing. In a
downright, frank and robust style week after week Tilak poured out his soul on
day-to-day problems, economic questions, philosophical ideas, historical
researches, literature and art." Tilak was a great savant. He lived and
worked when India was a servile country. He had a great vision and that was
India as a united, strong, prosperous, civilized and democratic country. He was
not a person embroiled in party politics, trying to build up a political career
for himself. He lived, worked and died for a national cause.
His activities and ideals were mostly, though
not wholly, reflected in the two newspapers, "The Kesari" and
"The Mahratta", two leading newspapers of the day which propagated
his views not only throughout the Marathi speaking part 671 of the country but
also in other parts thereof Through his papers, he gave information on various
subjects, literary, political, social, moral, economic, etc. His papers created
an atmosphere for constructive work in that part of the country and elsewhere,
and supported many movements calculated to improve the conditions of the
people. Subjects as varied as famine relief, prostitution, swadesi, plague
relief, Bengal partition, Home-rule movement, national integration, and such
other political and social movements, found powerful expression in the said
newspapers. In short, his papers pleaded for the social, political, cultural
and economic regeneration of the country. They were not confined to the narrow
ideal of just replacing the foreign government by a national one, though it was
an important step in the regeneration of the country.
Can the objects of this great man, reflected,
propagated, and pursued by the said papers, be characterized as those not in
the general public interest ? To say that the object of a trust for a village
school, hospital or choultry is one of general public utility and, to deny that
character to a trust created for pursuing the objects of Tilak, that is, the
regeneration of the country, is to make a mockery of the section. What trust
could be more in the interest of the public than that created to educate them
in their political rights so that they could know their rights, understand and
appreciate the problems of their country, and contribute their mite to its
progress and prosperity ? It is said that Tilak was a leader of only one of the
parties and his activities were analogous to those of a leader of a political
party in England. It is true that in the days of Tilak there were also
patriotic gentlemen who preferred to achieve independence by a circuitous and
slow path and there 672 were also self seekers who built up their career on the
sacrifices of their fellow citizens. But then there were no political parties
in the sense they are in England and are now in India. Tilak was not an
ordinary politician indulging in party politics to build up his career. His
lifetime was spent in educating the people with a view to realise his vision.
To class him as a party politician with a view to import the English law in the
construction of the trust deed is, to say the least, to ignore the facts of
history and to belittle the great contribution made by Tilak in the country's
cause. His work must be evaluated not on party but on a national level. It is,
therefore, clear that the object of Tilak, after he tookover the newspapers,
was to work for the regeneration of the country, and he thought, and rightly
too, that national education through newspapers and thereby making people alive
to their political rights was the most important item in the uplift of the
country.
The trust executed to perpetuate the said
object is clearly a trust for general public utility within the meaning of s. 9
(4) of the Act.
But it is said that the object are not of
public utility, because some of the English Judges-for whom I have the greatest
respect said that political purposes are not charitable purposes. Ordinarily I
would have been inclined to drop any reference to English decisions had it not
been for the copious citations at the Bar. I would, therefore, briefly notice
the decisions cited at the Bar defining "charitable purposes" under
the English law on the basis of which an attempt is made to curtail or
circumscribe the scope of cl.(4) of s. 9 of the Act. In this connection it is
necessary to bear in mind the caution administered by the decisions of highest
authority when similar attempts were made to import English law in the matter
of construction 673 of In Indian statutes. In. All India Spinners' Association
of Mirzapur, Ahmedabad v. Commissioner of Income-tax (1), the Judicial
Committee bad to consider the scope of s. 4 (3) (1) of the Indian Income-tax
Act. In that decision, Lord Wright, speaking for the Board, observed:
"It is now recognized that the Indian
Act must be construed on its actual words, and is not to be governed by English
decisions on the topic. The English decisions on the law of charities are not
based on definite and precise statutory provisions. They have been developed in
the course of more than three centuries by the Chancery Courts." After
pointing out that in the English law the purposes beneficial to the community
are charitable whereas under the Indian statute the advancement of any other
object of general public utility is a charitable purpose, proceeded to state:
"The difference in language,
particularly the inclusion in the Indian Act of the word 'public', is of
importance. The Indian Act gives a clear and succinct definition which must be
construed according to its actual language and meaning. English decisions have
no binding authority on its construction, and though they may sometimes afford
help or guidance, cannot relieve the Indian Courts from their responsibility of
applying the language of the Act to the particular circumstances that emerge
under conditions of Indian life.
The Judicial Committee again in Williams
Trustees v..Revenue Commissioners (2) reiterated the same principle with
greater emphasis.
With this background let me briefly notice
the English law on the subject with a view to (1) (1944) L.R. 71, I.A.
159,166,167.
(2) [1948] 16 I.T.R. Supp. L 41.
674 ascertain whether they would afford any
help or guidance for construing the statutory provisions of the Act. The
English law of charity has grown round the Statute of Elizabeth (43 Eliz. c. 4)
and the preamble thereto read as follows :
"The relief of aged, impotent and poor
people ; the maintenance of sick and maimed soldiers and mariners ; the
maintenance of schools of learning, free schools and scholars in universities ;
the repair of bridges, ports, ,havens, causeways, churches, sea-banks and
highways; the education and preferment of orphans ; the relief, stock or
maintenance' of houses of correction ; the marriage of, poor maids; the
supportation, aid and help of young tradesmen, handicraftsmen, and persons
decayed ; the relief or redemption of prisoners or captives ; the aid or ease
of any poor inhabitants concerning payment of taxes ; the setting out of
soldiers." Sir Samuel Romilly in his argument in Morice v. Bishop of
Durham (1) attempted to classify the said objects under the following heads
"Relief of the indigent, the advancement of learning, the advancement of
religion,, and the advancement of objects of general public utility." But
Lord Macnaghten in Commissioner for Special purpose of Income Pax v. Pemsel (2)
did not adopt this classification but instead grouped the purposes which have
been held charitable within the language of the aforesaid; preamble under the
following four heads : (1) relief of poverty ; (2) advancement of education ;
(3) advancement of religion ; and (4) other purposes beneficial to the
community not falling under any of the preceding heads. It will be at once
noticed that s. 9(4) of the Act accepted the last head suggested by Sir Samuel
Romilly in preference to the fourth head enumerated by Lord (1) (1805) 10 Ves.
522, 532; 32 E.R. 947.
(2) (1891) A.C. 531. 583.
675 Macnaghten which has been the basis for
the decisions which I will consider immediately. The case law on the subject is
immense: it is impossible to discover any common thread passing through them.
But I shall content myself with noticing decisions relating to trusts created
to promote what is broadly described as the advancement of political objects. A
brief summary of the English decisions shows not only an irreconcilable
conflict but also the danger of importing them in the construction of an Indian
statute.
The following purposes have been held to be
non-charitable purposes :
(1) To secure by united action legislative
and other temperance reforms : vide The Commissioner8 of Inland Revenue v. The
Temperance Council of the Christian Churches of England & Wales (1).
(2) To subsidize a newspaper for the
promotion of particular political or fiscal opinions : vide National Provincial
and Union Bank of England Ltd. v. Tetley (3) To honour the memory of a great
statesman, a former leader of the Conservative Party to preserve a historical
building from destruction and to use it as a college for the education of
persons in economics, politics and social science, etc. with special reference
to the development of the British Constitution, and in such other subjects as
the governing body by whom the Trust was administered might deem desirable :
vide Bonar Law Memorial Trust v. Commissioners of Inland Revenue (3).
The following purposes have been held to be
charitable purposes :
(1) Financing a Bill before Parliament to (1)
(1926) 10 Tax Cas, 748 (2) [1923] 1 Ch. 258.
(3) (1033) 17 Tax Cas. 508.
676 establish a see at Birmingham vide In re
VilliersWilkes (1).
(2) Combating vivisection partly by the
repeal of a statute : vide In re Foveaux (3) Maintenance of village club and
reading room (,to be used for the furtherance of Conservative principles and
religious and mental improvement, and to be kept free from intoxicants and
dancing" : vide In re Scowcroft (a).
(4) For the benefit of a particular place,
whether a parish, town, or borough, a county, or a country : vide Public
Trustees v. Smith (4).
In Halsbury's Laws of England, 3rd Edn., Vol.
4, the following summary is found at p. 231 :
"The promulgation of particular
doctrines or principles not subversive of morality or otherwise pernicious and
not in furtherance of the principles of a particular political party maybe
charitable, as, for instance, Conservative principles combined with mental and
moral improvement, Socialism, kindness to animals, or temperance, or extending
the knowledge of those doctrines in the various branches of literature to which
I have turned my attention and pen, in order to ascertain what appeared to be
truth, and to teach it to those who would listen." A cursory glance at the
said illustrations would be enough to indicate that there was no consistent
principle underlying them; the decisions speak in different voices.
Some decisions attempted to lay down certain
principles, but no sooner were they laid down than they were given up by subsequent
decisions in a search for others. The following (1) (1895) 72 L.T. 323. (2)
(1895) 2 Ch. 501.
(3) (1898) 2 Ch. 638. (4) (1932) 1 Ch. 153.
677 principles may be called out from some of
the aforesaid decisions` (1) A trust is charitable only if it is within the
spirit and intendment of the preamble to the Statute of Elizabeth.
(2) Every object of public general utility is
not necessarily charitable : see Williams Trustees v. Inland Revenue
Commissioner's (1).
(3) A trust for changing the law of the country
is not charitable.
(4) As it is a maxim that the execution of a
trust shall be under the control of a court, it shall be of such a nature that
it can be under that control so that the administration of it can be reviewed
by the court: vide Morice v. The Bishop of Durham(2).
And (5) a gift would not be charitable if the
purpose is as vague as "dbaram", when it may be employed for purposes
which are not considered charitable.
The first principle could not obviously be
applied to a case under the Act, for it has not expressly or by necessary
implication, invoked the preamble to the Statute of Elizabeth. The second
principle conflicts with the express provision of cl. (4) of s. 9 of the Act:
while under the English law some purposes, though undoubtedly purposes of
public utility, were not considered to be such on other considerations, under
the Act such division is not permissible, as cl. (4) of s. 9 expressly makes
every such purpose a charitable purpose. The third principle has not been
consistently followed even in England; nor can I fined any reasonable basis for
the same. If that be correct principle, then no purpose, however demonstrably
it may be for the general public utility, can be (1) (1948) 16 I.T.R. Suppl.
41.
(2) (1805) 10 Ves. 522, 532, 32 E.R. 947.
678 charitable if to implement its purpose it
is necessary to create a climate for changing the existing law. Trusts created
for educating the public on the evils of alcoholism, prostitution and other
social evils, with a view to put pressure on the legislature to bring about
appropriate reforms would cease to be charitable : political purposes may be
brought under this head, for mostly, though not always, such purposes would be
sought to be effectuated by a change in law. But in my view, the mere fact that
a change of law is involved in the process could not make a purpose otherwise
charitable a non-charitable one. Nor does the fourth principle afford a correct
test for a charitable purpose. It is true that the author's declaration that a
particular gift is charitable is not decisive of the question, but in the
ultimate analysis the court has to decide whether the purpose or object is
charitable or not.
I do not see any insurmountable difficulty in
the court coming to a conclusion one way or other whether a political object is
a charitable object, just like it would come to a conclusion in the case of a
gift for the propagation of the tenets of a particular religious sect. Nor can
it be said that the court by deciding the character of a trust created for
political purposes will be indulging in politics. If that be so, it can be said
with equal justification that in the case of a religious trust a court by
deciding the said question would be supporting a particular religious sect in
preference to another. The court does not take sides in the political or
religious controversy, but only objectively looks at the purpose to ascertain
whether it is charitable or not and administers it, if called upon, through the
necessary machinery. The fifth principle is sought to be applied to a political
purpose. It is said that the express on "polotical purpose" is so
vague that there is the possibility of the trust being applied to
non-charitable purposes. I do not see how it can be posited that every
political purpose is a 679 vague purpose : it depends upon the facts of the
case. It is for the court to construe the trust deed in each case with a view
to ascertain whether the purpose, political or otherwise, is vague or not. If a
gift for the benefit of a place, whether a parish, town, brouoh, county or
country is charitable, as has been held in the "locality cases", I do
not see how a gift for the political uplift of the country would never be for a
charitable purpose on the ground that it would be vague. Nor can it be said as
a proposition of law that the propagation of the principles of a particular
political party would necessarily be not beneficial to the community. Suppose a
country is backward or undeveloped and a philanthropist endows property for
propagating a particular doctrine likely to bring about the welfare of the
public : the ideology sought to be propagated may be labelled according to the
doctrines prevalent in a particular country. How can it be said as an
inflexible rule of law that a political purpose is riot beneficial to the
community ? It depends upon the facts of each case.
Tudor in his book on Charities, 5th Edn., p.
41, points out that "the proposition that political purposes cannot be
charitable is difficult to reconcile with certain decided cases". Even
some of the decisions of the English courts, finding the illogicality of such a
doctrine, attempted to modify it by stating that it is necessary, in order to
establish the validity of a charity, to show that the end is not to be attained
mainly by political means, indicating thereby that the dominant purpose shall
not be a political one. The approach of the English Courts to this problem has
been succinctly stated by Chitty, J., in Re Foveaux thus:
"The method employed by the Court is to
consider the enumeration of charities in the Statute of Elizabeth, hearing in
mind that the enumeration is not exhaustive. Institutions whose objects are
analogous to those 680 mentioned in the Statute are admitted to be charities;
and again, institutions which are analogous to those, already admitted by
reported decisions are held to be charities.
The pursuit of these analogies obviously
requires caution and circumspection. After all, the best that can be done is to
consider each case as it arises, upon its own special circumstances.'$ Though
this statement appeared in the year 1895, a scrutiny of the later decisions
indicates that the same approach continued to be adopted by the courts. Tudor
in his book on Charities, 5th Edn.,p. 38, describes the judicial approach to
the problem thus :
"The Courts have extended the class
outlined in the preamble to the Statute of Elizabeth to such an extent as to
render it valueless as a basis for the classification of charitable objects,
and it must be admitted that no analogous counterpart to many of the charities
enumerated here can be traced in the preamble." To summarize : English
decisions are conflicting; there is no common thread passing through the
variety of decision, starting from the preamble to the statute of Elizabeth,
and apparently relying upon the fourfold classification of Lord Macnaghten,
English courts from time to time decided cases which could not be sustained
either on the illustrations in the preamble to the Statute of Elizabeth or the
a dalogies drawn from them, or the classification of Lord Macnaghten.
The decisions conflict with one another and
it is not possible, or even advisable, to seek to get any guidance from the
said decisions to construe, the clear provisions of the Indian statutes, or, a
document executed in Indian statutes, or a document executed in India 681 under
circumstances totally different from those obtaining in England. In India, the
superstructure of democracy is sought to be built upon an illiterate basis. If
the country had to reach political maturity, no facet of education would be
more important than that political science. In Trustees of the Tribune Press,
Lahore v. Commissioner of Income-tax, Punjab (1) the Judicial Committee held
that a trust created by a testator by his will to the effect that his property
"in the stock and good will of the Tribune Press and News.
paper in Anarkali, Lahore," should vest
permanently in a committee of trustees whose duty it should be "to
maintain the said press and newspaper in an efficient condition, keeping up the
liberal policy of the said newspaper and devoting the surplus income of the
said press and newspaper after defraying all current expenses in improving the
said newspaper and placing it on a footing of permanency," was a good and
valid trust. It was held that the object of the newspaper was to supply the
Province with an organ of educated public opinion, which was an object of
general public utility and accordingly the trust income was exempt from
taxation under sub-s. (3) of s. 4 of the Indian Income tax Act, 1922. The
Judicial Committee took the case before it out of the scope of the English
decisions with the following observations :
"But their Lordships, having before them
material which shows the character of the newspaper as it was in fact conducted
in the testator's lifetime, have arrived at the conclusion that questions of
politics and legislation were discussed only as many other matters were in this
paper discussed, and that it is not made out that a political purpose was the
dominant purpose of the trust." (1) [1939] L.R. 66 I.A. 241, 256.
On the facts of the case before it, the
Judicial Committee came to the following conclusions :
"They think that the object of the paper
may fairly be described as the object of supplying the Province with an organ
of educated public opinion' and that it should prima facie be held to be an
object of general public utility".
Subsequent remarks show the distinction
between party-politics and general political education :
"Having regard to the particular
circumstances of the time, the directions of the testator and the evidence as
to the contents of the paper before 1898, their Lordships think that the
present case is nearer on its facts to In re Scowcroft (1) than it is to the
case of the Bonar Law Memorial Trust (2), or to the case put by Russell, J., in
In re Tetley (3) of a newspaper subsidized for the promotion of particular
political or fiscal opinions." This judgment was a clear attempt to
sustain the validity of the trust, though constituted to educate the public
opinion involving also the propagation of political views, having regard to the
wide definition of charitable purpose under the Indian Act. In All India
Spinners' Association of Mirzapur, Ahmadabad v. Commissioner of Income-tax,
Bombay (4), the All India Congress Committee by its resolution started an
association for the purpose of development of band-spinning by the use of
handling. The association was run on a co-operative basis, that is, the surplus
income was distributed only among the members : the Privy Council held that
though the association was started by a political party, the purpose of the
association was a (1) ( 1898) 2 Ch. 638. (1923) 1 Ch. 258.
(2) (1938) 17 Tax Cas. 508.
(4) (1944) L.P. 71 I.A. 159.
683 Charitable one within the meaning of the
Income-tax Act.
Lord Wright says "The statement of the
object excludes, in their Lordship's opinion, any question of profit making,
and also excludes any element of party politics." Then adverting to the
very wide words sub-s. (3)(1) of a. 4 of the Income-tax Act, 1922, namely,
" other purposes of a general public utility " the Judicial Committee
proceeded to observe:
" These last are very wide words. Their
exact scope may require on other occasions very careful considerations.........
Though the connection in one sense of the Association with Congress was relied
on as not consistent with 'general public utility ' because it might be for the
advancement primarily of a particular party, it is sufficiently clear in this
case that the Association's purpose were independent of, and were not affected
by, the purposes of propaganda of Congress. " Referring to the English
decisions, the Judicial Committee observe-:
" The English cases there (Tribune Press
Case (1)) cited do not turn on the words 'general public utility,' but they
illustrate how courts of first instance in England have actually dealt with the
particular questions there submitted to them." This decision lays down two
principles, namely,(1) the words " other purposes of general public
utility" are very wide and the English decisions do not turn upon those
words; and (2) even on the assumption that the said decisions applied, a trust
does not cease to be one for general public utility, though it (1) (1939) L.R.
66, 1. A. 241.256.
684 may be for the advancement primarily of a
particular party.
if the purposes were independent of and were
not effected by, the purposes or propaganda of that party. This case, while not
deciding on the wide import of the Indian statute, made a distinction between
'a party's propaganda and its party politics and its other objects. In Subash
Chandra Bose v. Gordhandas Patel (1) a testator made four gifts by his will and
provided that "the balance of my assets after disposal of the above
mentioned four gifts is to be handed over to Mr. Subhas Chandra Bose to be
spent by him or by his nominee or nominees according to his instructions for
the political uplift of India and preferably for publicity work on behalf of India's
cause in other countries." The Bombay High Court held that the words
"political uplift of India" whether it denotes a general raising of
the political status or conditions of India or the advancement of a political
purpose was too vague to be capable of enforcement by the Courts and
accordingly the trust was bad and an intestacy resulted as to the residue
covered by the clause. 'The decision, therefore, was based upon the principle
that a charitable purpose could Dot be sustained when it was vague.
But the observations of Beaumont, C.J., are
instructive, and they are:
"However, there the cases are, and if we
had in this case a gift to India, or a gift to the people of India, we would
have to consider Whether the principle of those cases should be applied in
India, and if so whether that principle which has been gradually extended from
a parish to a country should now be extended to sub-continent," The
further observations of the learned Chief (1) I.L.R. 1940 Bom. 254, 278.
685 Justice at p. 279 indicate the reasons
for the decision:
" What we have got here is a gift for
the political uplift of India, and one cannot possibly disregard the adjective
political'.
Assuming that the Meaning of those words is
that for which Mr. Bose contends, i. e., that they denote improvement in the
political system of India, and therefore to that extent must be beneficial to
India, the difficulty is that the words are too vague................
The test must ultimately be whether, if the
Court be called upon to administer the trust, the Court would be able to do so.
Here, it seems to me impossible for the Court to determine what is embraced in
the term political uplift of India." Citing the observations of Lord
Parker, the learned Chief Justice observed at p.281:
"A trust to advance a political purpose
is clearly bad on the ground given by Lord Parkar in Bowman v. Secular Society
Limited (1), that a trust for the attainment of political objects is invalid,
not because it is illegal, but because the Court has no means of judging
whether any proposed political change will or will not be for the public
welfare or benefit.
" The learned Chief Justice, therefore,
might have held that the trust was charitable if he had Dot come to the
Conclusion that the purpose of "political uplift" was vague and a court
was not in a position to know whether a particular political object would be or
would not be for the public welfare or benefit. A division Bench of the Bombay
High Court in re. Lokamanya Tilak Jubilee National Trust Fund, Bombay (2) had
to consider a similar question under the Income-tax Act, 1922.
(1) (1917 ) A.C. 406.
(2) (1941) 43 Bom. L.R. 1027.
686 There, a trust was created for the
following objects: (1) the advancement of any purpose which might in the
uncontrolled opinion of the managing committee be national or of national
importance for the inhabitants of British India, (2) the political advancement
of India having for its goal the acquisition of complete national autonomy or
"swarajya", (3) the diffusion of political education and knowledge as
to the political affairs of India and propagandist work both in India as well
as in any part of the world, and (4) any object which might conduce to any of
the aforesaid object. The Court held that the first mentioned object went
beyond the definition of "charitable purposes" contained in s. 4 of
the Income-tax Act in as much as the section of the purpose rested in the
uncontrolled opinion of the managing committee, and that, the second mentioned
object also went too far, because it was really a gift for political purposes.
Beaumont C.J., who delivered the leading judgment, noticed that the purpose,
namely, the advancement of any other object of general public utility went
further than the definition of charity to be derived from the English cases. He
observed that, if all the purposes in the trust deed could be regarded as of
general public utility for the benefit of the inhabitants of English India,
then the trust would be, in his opinion, a good charitable trust. But he could
not decide that it was so, because, in his opinion, if the attainment of
national autonomy might be regarded as a national purpose accepted generally
by, and for the good of, the inhabitants of British India, there was a very
keen divergence of opinion as to the methods by which that national autonomy
should be attained and, therefore, the gift was for political purposes. Kania,
J., who delivered a separate but concurring judgment, came to the conclusion
that the second mentioned object was preeminently a political purpose and fell
within 687 the rule stated in the Tribune's case (1). If I may say so, with
respect, the decision of the learned Judges was unconsciously coloured by the
English decisions based on Party politics and those decisions had been wrongly
applied to a case of national uplift of the country which was struggling for
independence.
The trust now in question came under the
judicial scrutiny of the Bombay High Court in connection with the Income-tax
Act, 1922. The trustees there then contended that the trust was for a
charitable purpose and was, therefore, not subject to the provisions of the
Income-tax Act. The High Court held that cl. (1) of the trust deed could not be
construed as constituting a charitable purpose, as the purposes mentioned in
the said clause were too vague and wide to constitute charitable purposes
within the meaning of the Income tax Act Beaumont, C.J, who deliverer the
judgment of the Bench, observed:
"The purpose include organising public
movements, and even if you limit those general words by the words 'calculated
to promote of national ideal', it seems to me impossible to say that the
promotion of public movements calculated in the view of the trustees to promote
the national ideal can be regarded as necessarily of public utility." The
learned Chief Justice went on to observe:
" It seems to me clear that under clause
I of this trust-deed the whole of the profits of the newspapers could be
applied for, any one of the various objects specified and, therefore if any of
those objects do not fall within the definition of a charitable object, then
the clause cannot be regarded as constituting (1) (1939) L.R. 66, I.A. 241,
256.
688 a charitable trust, and, as I have said,
in my view, some of the objects of the trust certainly go beyond the definition
of charitable trust." The reason of the decision, therefore, was that some
of the objects of the trust were charitable and others were not, and as the
whole of the profits of the newspapers could be applied for non-charitable
purpose, the trust was not valid.
The High Court then did not decide whether
the first purpose in the trust deed was charitable or not: that question falls
to be decide in the present case.
It is therefore, clear that the Indian
decisions, though to some extent coloured by the English decisions, appreciated
the distinction between the wide language of sub-s. (3) of s. 4 of the Indian
Income-tax Act and the fourth category of Lord Macnaghten's classification
under the English law of charities. But I find it difficult to accept the
observations made in the said judgments that a trust created for the
advancement of political objects would necessarily cease to be one for a public
charitable purpose. In support of this proposition there is nothing except the
doubtful and conflicting authority in England. There is no justification to
curtail the wide words of the statute by importing foreign ideas developed in a
different set up.
In this context, a decision of the Supreme
Court, of one of the States in America is rather instructive, viz., that in
Taylor v. Hoag (1). There, a trust created to promote improvements in the
structure and methods of government was held to be a charitable trust, although
the purpose was to secure radical changes in the "present" system.
Frazer, J., answers, in my view effectively, all the objections raised by the
English Courts in holding that a trust for a political purpose was void.
Adverting to the question that the trust in (1) (1922),21 A.L. R. 946, 949,
950.
689 that case involved a change in the existing
law, the learned Judge observed:
"Must it be held void because the
successful attainment of these objects would involve a change in existing laws.
We would hesitate to subscribe to such doctrine, unless reason or authority
compelled us to do so." The learned Judge proceeded to state:
" To hold that an endeavour to procure
by proper means, a change in a law, is, in "effect, to attempt to violate
that law, would discourage improvement in legislation and tend to compel us to
continue indefinitely to live under laws designed for an entirely different
state of society. Such view is opposed to every principle of our Government,
based on the theory that it is a Government ,of the people, by the people, and
for the people,' and fails to recognize the right of those who make the laws to
change them at their pleasure, when circumstances may seem to require. With the
wisdom of the proposed change the courts are not concerned. We perform our duty
in determining whether or not the method adopted to make the change violates
established law. In the present case we find no apparent intent to violate any
law. On the contrary, the trust specifically requires its objects to be
accomplished by lawful means." Now, let me consider some of the provisions
of the Act which are in direct conflict with some of the tests laid down by the
English decisions to ascertain whether a purpose is charitable or not. The
first is s. 9(4) which says that a charitable purpose includes the advancement
of any other object of general public utility. I have already pointed out 690
the wide amplitude of these words. Section 11 says:
" A public trust created for purposes
some of which are charitable or religious and some are not shall not be deemed
to be void in respect to the 'Charitable or religious purpose, only on the
ground that it is void with respect to the non-charitable or non-religious
purpose.
While in England if a trust was created for a
charitable or a non-chartiable purpose, the entire trust would be void, as the
trustees could administer the trust exclusively for the benefit of
non-charitable purposes, under s. 11 of the Act the law is changed in regard to
that matter. Section 55 introduces a cypres doctrine which is wider in scope
than the doctrine is generally understood in that it enables the court, inter
alia, under certain circumstances, if it is not in public interest, expedient,
practicable, desirable, necessary or proper to carry out wholly or partially
the original intention of the author of the public trust or the object for which
the public trust was created, to apply the same to any other object. The Act
widens the scope of a charitable purpose as understood in the English law,
recognizes the validity of the trust though the purposes include both
charitable and non-charitable, and enables the court, under certain
circumstances, to divert the trust to other charitable purposes not intended by
the author of the trust. The liberal spirit adopted by the Act does not permit
a narrow interpretation of a charitable purpose accepted by the English courts
under different circumstances.
Let me now summarize my views on the subject:
(1) The English decisions are based upon a pragmatic approach to the problems
that arose before them, having regard to the historical development of the law
of charities in that country;
691 there is no common thread discernible in
the large volume of English decisions. (2) Under the Act, unlike in England,
the advancement of the object of common public utility is declared to be a
charitable purpose, and it is not permissible to curtail its scope with
reference to English decisions. (3)The expression " object of general
public utility " is very comprehensive and it includes every purpose,
whether political or otherwise, provided it is an object of general public
utility.
The English decisions, therefore, afford no
help to construe s. 9 of the Act to ascertain whether a purpose is charitable
or not under the Indian law.
For the reasons I have given, I hold, without
any hesitation that the purpose of the trust in the present case is a
charitable purpose within the meaning of s. 9 of the Act.
Even on that basis it is contended that a
trust giving power to a trustee to spend the trust funds on charitable and non-charitable
objects is void and as the High Court held that the second object of the trust
was non-charitable the entire trust must fail. This argument ignores the
distinction between a trust deed empowering a trustee to spend on a charitable
object or a non-charitable object and a trust, deed empowering him to spend on
a charitable object and a non-oharitable object. In Halsbury's Laws of England,
3rd Edn., Vol.4, at p.272, the following passage appears:
" When a testator give funds to be
applied partly for objects which are charitable and partly for objects which
either are not charitable or fail, but does not specify the proportions in
which the funds are to be applied for the different objects, the Court will
make an apportionment." " Again, where a fund is given for several
objects, some charitable and some non-charitable or illegal, there being a
clear intention 692 to devote some part to the charitable objects, if it can be
ascertained what are the proper proportions to be attributed to the several but
if objects, the Court directs an inquiry, from the nature of the gift it
appears impracticable to fix the proportions, the Court divides the fund
equally between the different objects." This passage is supported by
decisions relied upon by the author. It is not necessary to discuss them in
detail, as the learned counsel for the appellant has not questioned the
correctness of the said proposition. In this view, it is not necessary to
consider whether s. 11 of the Act has retrospective operation. Learned counsel
for the appellant attempted to argue that s. 55 of the Act offends his right of
reversion to the property which is the subject-matter of the trust. The
question of the validity of the said section does not arise in the present
case. The only question is whether it is the duty of the trustees of the trust
to make an application for registration of the said trust. As I have held that,
the trust is a public trust within the meaning of s. 9 of the Act, under s. 18
thereof, the said trust has to be registered in manner prescribed therein.
Questions such as the extent of the trust,
the scope of the doctrine of cypress, are all foreign to the present inquiry.
I do not propose to express any opinion on
the same.
In the result, the appeal fails and is
dismissed with costs.
By COURT: In view of the majority opinion of
the Court the appeal is allowed and the Order of the Assistant Charity
Commissioner directing the Trust to be registered confirmed by the Charity
Commissioner on appeal is set aside. The appellants will be entitled to their
costs in all the Courts.
Appeal allowed.
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