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TMI Blog1939 (9) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... nee 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. 3. Then the will goes on- In the event: of my death in Europe I desire that Mr. Subhash Chandra Bose shall take charge of my body and make the necessary arrangements for sending it to Bombay for cremation on the Chaupaty Sands along side the place where the late Lokamanya Bal Gangadhar Tilak's body was cremated. 4. The question is whether or not that gift of residue is valid in law. The learned Judge held that it was invalid and that the residue was undisposed of. 5. The argument in this Court has been based on two grounds. First, it is said that on the true construction of Clause (5) the residue is given to Mr. Bose absolutely, the direction as to how it is to be spent being merely the expression of the motive for the gift, or possibly of the testator's hope or belief as to the way in which the money would be spent. It is fair to Mr. Bose to say that his counsel disclaims on his behalf any desire to utilise the money for his own purposes; he claims to be absolutely entitled to it in order that he may appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed upon it which do not, in the events which happen, exhaust the gift, the original gift takes effect to the exclusion of the residuary legatee, or the next of kin. But here there is no absolute gift in favour of Mr. Bose in the first instance. The only gift to him is upon a trust specified in the latter part of the clause. That disposes of the first question raised. 9. The second contention of Mr. Sarat Bose is that the trust, if there be one, is a valid charitable trust. The essence of the trust is that the moneys are to be spent for the political uplift of India. It is argued by Mr. Sarat Bose, and also by Mr. Joshi on behalf of the Advocate General, that the political uplift of India is something quite different from the advancement of certain political purposes. It is said that the political uplift of India necessarily denotes a political advance or improvement, the raising of India to a higher political level by improving the methods and machinery of Government, or possibly by advancing the knowledge of the people on political subjects. At any rate, it is said that the gift is for the improvement of India ; and having got so far, Mr. Sarat Bose says that the gift is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all purposes beneficial to the community were not charitable. That was laid down as early as In re Macduff : Macduff v. Macduff [1896] 2 Ch. 451 and the result was largely to destroy any practical utility in the definition given by Lord Macnaghten, because instead of having merely to enquire whether a particular gift fell within one of the four classes, if such gift fell within the fourth class the Court had to go further and enquire whether it was charitable or not. However, undoubtedly under English case law a gift for general public utility is not a good charitable gift, because it might be employed for purposes which are not considered charitable. But side by side with cases of that nature there exists another line of cases which have been referred to as " the locality cases " in which it has been held that a gift for the benefit of a particular place, whether a parish, a city, a county, or a country is charitable, although the purposes of the gift are not specified and the gift could apparently be applied for the general purposes of the locality. I need not refer to the cases in detail, because they are all collected and discussed in the case of Smith, In re : Pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying on the statutory definitions of " charitable purpose " in India, and also having regard to the rather unsatisfactory state of the English authorities. But again we have not got here a gift for the general public utility of India, and therefore that question also does not call for decision. 15. 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. Every trust must be expressed in sufficiently clear language to enable the Court to ascertain what are its purpose and object. This is so under English law and also under Section 6 of the Indian Trusts Act, and that the principle applies to charitable trusts was laid down as long ago as the case in Morice v. Bishop of Durham (1805) 10 Ves. Jun. 522. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive Assembly, and indeed the direction he gives as to the disposal of his body indicates to anybody with local knowledge that he was an Indian nationalist leader. Mr. Desai contends that political uplift in the mouth of an Indian national leader would mean the advancement of India's claim to independence, and that view of the matter derives support from the words which follow-" preferably for publicity work on behalf of India's cause in other countries." It is difficult to see what India's cause means, if the political uplift of India denotes the general raising of the political status or conditions of India ; it is easy to see what the words mean if political uplift denotes advancement of a claim to independence A trust to advance a political purpose is clearly bad on the ground given by Lord Parker 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. Mr. Sarat Bose has drawn our attention to the fact that that dictum is criticise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India would hardly be designable .To search and sift the heaps of cases on wills which cumber our English Law Reports, in order to understand and interpret wills of people speaking a different tongue, trained in different habits of thought and brought up under different conditions of life, seems almost absurd. Bearing these observations in mind if the present will is approached, it is noteworthy that when the testator wanted to bequeath property to his legatees he deliberately used the word "give". This is seen in the preceding four sub-clauses of clause 9. It was urged that if the sub-clause in question stopped after the name of the donee that would have been an absolute bequest, in favour of the donee. Without contesting that proposition it must however be conceded that when words in fact find place in the same sentence or clause they have got to be taken into consideration in giving the proper meaning to the preceding words. Here the words following the name of the donee clearly control the preceding words, and it is not possible to construe the clause as one amounting to a gift or an absolute gift in favour of the donee. The first contention of the appellant must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover the Judicial Committee of the Privy Council in Runchordas v. Parvatibai I.L.R. (1899) 23 Bom. 725 : S.C. 1 Bom. L.R. 607, in construing the word " dharam " has adopted the meaning given to charitable objects in England to interpretation of wills in India. The word "dharam" was held to be vague because it included objects which were not necessarily charitable but also philanthropic and benevolent. That decision was given when all the aforesaid three Acts were in force in India. 4. It was urged that as in the locality cases if the gifts were for the " benefit of India " the gift would be good. The difficulty of reconciling these cases with the accepted definition of the word " charity " in English cases has been stated by Lord Sterndale in Tettley, In re : National Provincial and Union Bank of England, Ld. v. Tetley [1923] 1 Ch. 258. I do not propose to attempt to reconcile the principle found in these locality cases with the restrictions otherwise put on the word " charity " as understood in the decided cases. It is sufficient here to distinguish these locality cases from the present one on the ground that the words used i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion whether the clause fulfils the requirements of Section 6 of the Indian Trusts Act. In order to fulfil the conditions it is necessary that the objects of the trust, i.e., the beneficiaries, must be indicated with reasonable certainty. It is obvious that different objects would be included under the heading " political uplift" as understood by different people and it is open to dispute whether they are of such a specific kind as to be capable of being definitely enumerated. If it is not possible, the Court when called upon to determine whether there was a breach of trust will be unable to decide the question. On that ground starting with the decision of Lord Eldon in Morice v. Bishop of Durham (1805) 10 Ves. Jun. 522 it has been held that when the objects of the trust are not capable of being sufficiently defined so as to enable the Court to enforce them, the trust must be held bad on the ground of vagueness. In my opinion the attempt of the testator falls in that category and under the circumstances the trust must fail. As the bequest does not fall within any of the recognised classes of valid bequests it must fail and it must be held that there is an intestacy in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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