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:
On May 10, 1946, the appellant had consigned 259 bales of cloth from W, a station on the G. I. P. Railway, to be carried to G, a station on the Darjeeling Himalayan Railway, respondent No. 1. out of these bales only 169 reached the destination on or about June 7, 1946. As the remaining bales had not reached the destination the appellant sent a telegram on July 1, 1946, to respondent No. 1 asking for early delivery of those bales, and also a letter dated July 9, 1946, as follows : "we confirm our telegram .... on 1st inst .... and regret very much to inform you that we have as yet heard nothing in response thereto nor the part ninety bales have reached destination. Will you, therefore, please take necessary action to cause the part consignment to reach destination immediately". The ninety bales actually arrived at the station, G, shortly prior to December 21, 1946. on which date the appellant wrote a letter to respondent No. 1.
stating that they had come to know that the consignment bad arrived at G in a very damaged condition and requesting that open delivery of the consignment be given immediately. Open delivery was given on February 12, 1947, and the damage done lo the goods was assessed by agreement between the parties.
As the appellant's claim was not settled. he instituted a suit for damages on April 9, 1948. Respondent No. 1 pleaded that the suit must fail because (1) no notice as required by s. 77 of the Indian Railways Act, 1890, claiming compensation for the damage to the ninety bales was given by the appellant to it within six months of the delivery of the consignment to the G. I. P. Railways and (2) the suit was barred by limitation having been instituted more than twelve months of the date on which damage had occurred, 833 Held (per Subba Rao and Mudholkar, jj., Sarkar, J., dissenting), (1) that the letter dated July 9, 1946, which was sent within six months of booking the consignment amount to a sufficient notice for the purposes of s. 77 of the Indian Railways Act, 1890, and that a claim for compensation must also be deemed to be implied in that letter.
Where a person says that his consignment has not been delivered as it should have been according to the contract between him and the railway, he must be regarded as making it clear that he would be holding the railway, to its contractual engagement which necessarily involves the payment of damages for breach of that engagement.
(2) That the suit was not barred by limitation under art. 30 of the Indian Limitation Act, 1908; the burden was on the respondent to establish that the loss or injury occurred more than one year before the institution of the suit and that it had not been discharged by it.
Union of India v. Amar Singh [1960] 2 S. C. R. 75 followed.
Per Sarkar, (1) Section 77 of the Indian Railways Act, 1890, which is mandatory, requires a claim to compensation to be preferred and a letter asking that a search for the goods be made and they be delivered is not a compliance with that section.
(2) A claim under s. 77 has to be preferred within the period of six months therein mentioned whether the person entitled to the goods is then aware that the goods have been lost, destroyed or damaged or not.
(3) In the present case, the appellant came to know of the damaged condition of the bales on December 21, 1946 and as the damage must have occurred prior to that date the suit which was filed on April 9, 1948 was clearly barred by limitation under art. 30 of the Indian Limitation Act, 1908.
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
