9911796707
TMI Blog1962 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of- the 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, Poona- being 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 thereunder. Section 19 of the Act empowers an Assistant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 fulfilment 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 incalcuted by to teachings through these newspapers. 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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" 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 impo- ssible 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 regarde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot; 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 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 idea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pers, 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 be- considered 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 (Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that ultimately the question to be decided is whether the achievement 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 cons- truing 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical 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 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 ([1898] 2 Ch. 638.) 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 learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the reading which is suggested is not the true one, but 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 ([1923] 1 Ch. 258, 262.), referred to by finlay J., in Boner Law Memorial Trust case ((1933) 17 Tax. Cas. 508.), was concerned with the validity of a bequest under which the trustees were directed to apply property "for such patrioti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ([1939] L. A. 66. I. A. 241.) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was intended to be devoted to the advocacy of particular legislative 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 pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it had a political object. On appeal to the Judicial Committee, Lord Wright who delivered the judgment of the Board observed "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 ground- work 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the meaning of "charity" and the appeal of the All India Spinners Association ([1949] 1 All. E.R. 346.) 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((1944) L. R. 71, I.A. 159.) 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summarise the- position: (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 poli- tician. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 move- ments 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. Before d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fulfilment 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 acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trinate 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght, 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement 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 ((1926) 10 Tax Cas, 748). (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 ([1923] 1 Ch. 258.) 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 ((1033) 17 Tax Cas. 508.). The following purposes have been he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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 St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ((1939) L.R. 66, 1. A. 241.256.)) 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, 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) 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 impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the ground given by Lord Parkar in Bowman v. Secular Society Limited ((1917 ) A.C. 406.), 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 ((1941) 43 Bom. L.R. 1027.) had to consider a similar question under the Income-tax Act, 1922. 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 "swa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 trusttees 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, there- fore if any of those objects do not fall within the definition of a charitable object, then the clause cannot be regarded as constituting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 charit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 app- lied 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
