1. This appeal arises from an order passed by the learned District Judge of Poona dismissing Miscellaneous Application No. 325 of 1954 filed under Section 72 of the Bombay Public Trusts Act by the trustees of the Kesari Maratha Trust, and it raises an interesting question under the Bombay Public Trusts Act, namely, whether the Kesari Maratha Trust is a pub-lic trust under the Act
2. The circumstances under which the trusteesof the Kesari Maratha Trust filed the above appli-cation under Section 72 of the Bombay Public Trusts Actare these: The two newspapers 'Kesari'' and'Maratha' were started by Lokmanya Tilak inPoona. Lokmanya Tilak died in the year 1920. Be-fore his death he made a will on 5-4-1918, atColombo making certain dispositions of his property.The only provisions of the will with which weare concerned in this appeal are those which occurunder the caption 'Chhapkhana' (printing press).The testator stated in this part of his will that apublic trust had been created by him in respect ofhis 'newspapers, office, press, foundry, library of thenewspapers and the monies which had been deposited as security.' The testator also gave a directionthat an amount of Rs. 75 per month should be paidto his son as rent for the premises occupied by theoffice of the newspapers, the printing press, etc.There was a further direction for the continuanceof a certain relative of the testator in the office ofthe manager of the Press. It was also directed bythe testator that the editorial policy of the newspapers ''Kesari'' and 'Maratha' should continueunchanged. From the words ^^eh ifCyd Vwj dsyk vkgs ** in Clause 1 under the caption 'Chhapkhana'(printing press), one might get an impression that a public trust was constituted by the testator by his will in respect of the newspapers, the printing press, etc. However, as no trust was in fact created by Lokmanya Tilak during his life-time, his sons and executors under his will executed a trust-deed on 16-8-1920. That trust-deed is Ex. 12 on the record of this case. It may be noted that the will made by Lokmanya Tilak is also a part of this record and it is Ex. 11. The trust-deed dated 16-8-1920, stated that it was executed for fulfilling the object of Lokmanya Tilak and for giving effect to the provisions of his will. Clause 1 of the trust-deed provides as follows:
'Ever since the time the deceased Lokmanya Bal Gangadhar Tilak took up the newspapers, namely, the 'Kesari' and the 'Maratha'', he with an object in view did acts of public service such as awakening the consciousness of political rights among the people by spreading through those papers among them the knowledge of politics and organising various other public movements and doing other things calculated to promote the national ideal, and this deed of trust is made to serve as a means of carrying out that very object of his for ever and without any interruption after his death.'
There was a direction in the trust-deed that the policy of the newspapers was to be decided upon by the trustees in accordance with the testator's wishes expressed by him in his will. The trust-deed further made a provision for reverter in case the object of the trust failed entirely. In Clause 11 of the trust-deed, there was a provision made for the celebration of Ganesh Utsav out of the funds of the trust. In the year 1936 a question arose whether this trust (Kesan Maratha Trust) was a charitable trust as contemplated by the Income-tax Act. It was the contention of the trustees that the income of this trust was exempt from being assessed to income-tax. On the other hand, the income-tax authorities wanted to levy a tax upon the income of this trust. This resulted in a reference, being Reference No. 3 of 1936, being made to the High Court under Section 66, Sub-section (2), of the Income-tax Act. It was a reference made by the Commissioner of Income-tax. That reference was heard by a Division Bench of this Court consisting of Chief Justice Beaumont and Mr. Justice Rangnekar. In that reference the contention of the trustees of the Kesari Maratha Trust was that the trust was for a charitable purpose and was, therefore, not subject to the provisions of the Income-tax Act. This contention was overruled by the High Court. The High Court held that Clause 1 of the trust-deed could not be construed as constituting a charitable trust, as the purposes mentioned in this clause were too vague and wide to constitute a charitable trust within the meaning of the Income-tax Act. In their Lordships' opinion, although some of the purposes mentioned in Clause 1 were no doubt charitable, there were others which were not charitable and it was possible that the whole of the funds might be applied to non-charitable purposes. Chief Justice Beaumont who delivered the judgment of the Bench in that reference said:
'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 Chief Justice then went on to observe:
'It seems to me clear that under Clause 1 of this trust-deed the whole of the profits of the newspapers could be applied for any one of the various objects specified and, therefore, if any of those objects do not fall within the definition of a charitable object, then the clause cannot be regarded as constituting a charitable trust, and, as I have said, in my view some of the objects of the trust certainty go beyond the definition of charitable trust.'
It was further observed by the learned Chief Justice in that case that the promotion of national ideal was not necessarily an object of public utility. For these reasons, it was held that the Kesari Maratha Trust was not a charitable trust within the meaning of the Income-tax Act, as some of the objects of the trust were too vague and wide to be regarded as charitable. The result of this decision was that since 1936 this trust was not treated as a charitable trust for the purposes of the Income-tax Act. Then, in the year 1950, the Bombay Public Trusts Act was enacted by the State Legislature and in 1952 a question arose as to whether the Kesari Maratha Trust was liable to be registered under the provisions of that Act. The Assistant Charity Commissioner, Poona, held that this trust was a public trust within the meaning of the Bombay Public Trusts Act and was, therefore, liable to be registered. From that decision the trustees appealed and in appeal the Charity Commissioner confirmed the decision of the Assistant Charity Commissioner. Thereupon, the trustees filed Miscellaneous Application No. 325 of 1954 in the District Court at Poona under Section 72 of the Bombay Public Trusts Act. Relying on the decision of the Chief Justice Beaumont and Mr. Justice Rangnekar in the High Court Reference No. 3 of 1936, which was a reference under Section 66, sub-s. (2) of the Income-tax Act, the trustees contended in their application No. 325 of 1954 that the Kesari Maratha Trust was not a public trust and that, therefore, the provisions of the Bombay Public Trusts Act would not apply to it. The learned District Judge held that, according to Clause 1 of the trust-deed, the purposes of the trust-deed were : (1) political education; (2) creating a consciousness of political rights amongst the people; and (3) public activities which are conducive to the promotion of the national goal. Then the learned District Judge said in the course of his judgment that the 'creation of a political consciousness was a part of political education' and observed:
'Political education, creating a consciousness of political rights, cannot bo regarded as an object which can invalidate a trust..... It cannot, however, be said that political education that is education in the birth rights of man, on which as is well known the late Lokmanya laid frequent emphasis, creating a consciousness in the people of this country of their birth right, is a purpose which any Court in modern times can hold to be one which is not for public benefit.'
This is a somewhat involved expression, but it is clear that in the view of the learned Judge the purposes of spreading political education and creating political consciousness amongst the people were charitable purposes and, therefore, the trust created by the trust-deed was a public trust.
3. Regarding Clause 11 of the trust-deed which deals with the celebration of Ganesh Utsav, the learned District Judge observed that it did not constitute a religious purpose of the trust. In his view, secular gatherings often begin with or end with prayers and yet 'the purpose of such gatherings continues to be secular in spite of the religious prayers'. The learned Judge was of the opinion that 'the performance of this Utsav (Ganesh Utsav) was not a purpose of the trust, but was an incident in the management of the trust' and that 'the Utsav and its performance cannot influence the answer to the question whether the purpose of the trust was charitable'. The trustees, feeling aggrieved by the decision of the learned District Judge that the Kesari Maratha Trust is a public trust, have appealed and the question which arises for our decision is whether the trust constituted by the trust-deed Ex. 12 dated 16-8-1920, is a public trust under the Bombay Public Trusts Act. It may be noted that although Lokmanya Tilak stated in his will in Clause 1 under the caption 'Chhapkhana'' (printing press) that he had created a public trust, he had not in fact created any public trust during his life-time. That was why after his death his sons & executors under his will constituted this trust to respect his wishes & fulfil the object he had in view. Now, a 'public trust' is defined in Section 2, Sub-section (13), of the Bombay Public Trusts Act. Section 2, Sub-section (13), lays down ;
' 'Public trust' means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.' To understand what a charitable purpose under the Bombay Public Trusts Act is, we must turn to S, 9 of the Act, and it is with Clause (4) of Section 9 that we are concerned in this case. Clause (4) of Section 9 says that for the purpose of the Act (Bombay Public Trusts Act, 1950), a charitable purpose includes the advancement of any object, other than the objects mentioned in Clauses (1), (2) and (3), of general public utility, but does not include a purpose which relates exclusively to sports or exclusively to religious teaching or worship. Now, therefore, in this case we have to consider whether the purpose of the trust constituted by this trust-deed, Ex. 12, was the advancement of any object of general public utility.
4. Although the object of this trust which was founded upon' the will of Lokmanya Tilak is not specified in Clause 1 of the trust-deed, Clause 1 refers to the doing of certain things for the fulfilment of that object. It is, therefore, clear, in our view, that the doing of those things is the purpose of the trust. Those things are : (1) Awakening in the minds of the people a consciousness of their political rights by spreading the knowledge of politics through the newspapers 'Kesari' and 'Maratha'; and (2) Organising various public movements calculated to promote the national ideal. It is clear, therefore, that these are the purposes of this trust as mentioned in Clause 1 of the trust-deed. In Reference No. 3 of 1936 also Chief Justice Beaumont and Mr. Justice Rangnekar, dealing with the purposes of this trust, had said:
'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 'calculate ed 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.'
It is, therefore, doubtless that the purposes of this bust were: (1) awakening amongst the people a consciousness of their political rights by spreading the knowledge of politics amongst them through the newspapers 'Kesari' and 'Maratha' and (2) organising various public movements calculated to promote the national ideal. Now, so far as the second purpose is concerned, it cannot amount to a charitable purpose under the Bombay Public Trusts Act. 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 purpose.
5. As to the first purpose, viz. the purpose of awakening consciousness of political rights amongst the people by spreading the knowledge of politics through the newspapers 'Kesari' and 'Maratha', Mr. Patwardhan says that it is a political object and he contends upon the authority of judicial decisions that the advancement of a political object cannot be a charitable purpose and that the trust for such a purpose cannot be considered a valid trust. In this connection, Mr. Patwardhan has referred us to a decision of the Privy Council in Tribune Press, Lahore v. Commr. of Income-tax, Punjab . In that case, there were three trusts created by a will of Sardar Dayal Singh and the third trust was declared by the 20th and 21st paragraphs of the will. 21st paragraph provided:
'That it shall be the duty of the said Committee of Trustees 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.'
Dealing with this clause, the trustees of the Tribune Press contended that a consideration of the way in which the newspaper had been carried on in the past made it clear that it had not been used for the propagation of a fixed policy such as niigbt bring the case within the decision in Bowman v. Secular Society Ltd. (1917) AC 406 (B) or Bonar Law Memorial Trust v. Commissioners of Inland Revenue (1933) 17 TC 508 . It was argued on behalf of the trustees that there was no question there of any dominant political purpose or of the propagation of some definite legislative measure as in Inland Revenue Commissioners v. Temperance Council of Christian Churches of England and Wales, (1926) 10 TC 748 . It was also contended for them (the trustees) that in so far as the newspaper dealt with politics, it did so only incidentally in the course of supplying, its public with enlightened information on all subjects of general interest. On the other hand, it was submitted for the Commissioner of Income-tax that the declared object of the trust was the perpetual propagation of the political views of the founder, which could not be considered a charitable purpose. In the present case also Mr. Patwardhan for the Kesari Maratha Trust contends that the declared purpose of the trust-under Clause 1 of the trust-deed was the perpetual propagation of the political policy of Lokmanya Tilak and that, therefore, the purpose could not be considered a charitable purpose. Mr. Patwardhan says that Lokmanya Tilak had clearly expressed himself in his will dated 5-4-1918, that the editorial policy of his newspapers was to bo maintained and was never to be departed from. According to Mr. Patwardhan, the editorial policy of the newspapers ''Kesari'' and 'Maratha' which was in the nature of political propaganda was sought to be perpetually propagated by the trust-deed and this would impart a political character to the trust. Upon these submissions Mr. Patwardhan contends that the awakening of political consciousness amongst the people through 'Kesari' and 'Maratha' is also not a charitable purpose and, therefore, this trust is not a public trust.
6. In the body of their Lordships' judgment in the Tribune case (A), their Lordships referred to the House of Lords case of Bowman v. Secular Society Ltd. (B). Mr. Patwardhan also relies upon it. In that case, Lord Parker, in the course of his Lordship's address, said (pp. 441-442);
'... .A trust to be valid must be for the benefit of individuals, which this is certainly not, or must be in that class of gifts for the benefit of the public which the Courts in this country recognize as charitable in the legal as opposed to the popular sense of that term. Moreover, if a trustee is given a discretion to apply trust property for purposes some of which are and some are not charitable, the trust is void for uncertainty..... The abolition of religious tests, the dis-establishment of the Church, the secularization of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath, are purely political objects. Equity has always refused to recognize such objects as. charitable. It is true that a gift to an association formed for their attainment may, if the association be unincorporated, be upheld as an absolute gift to its members, or, if the association be incorporated, as an absolute gift to the corporate body; but a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promoto by any lawful means a change in the law, but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift. The same considerations apply when there is a trust for the publication of a book. The Court will examine the book, and if its objects be charitable, in the legal sense it will give effect to the trust as a good charity..... but if its object be political it will refuse to enforce the trust.....'
In support of his observations, his Lordship relied on Thoniton v. Howe (1862) 31 Beav 14 (E) and De Themmines v. De Bonneval (1828) 5 Russ 288. Patwardhan relies upon this authority Bowman v. Secular Society Ltd. (B), to fortify his contention that the Kesari Maratha Trust, being a trust for the attainment of the political object whichLokmanya Tilak had in view, would be an invalidtrust.
7. In re Tctlcy National Provincial & Union Bank of England Ltd. v. Tetley 1923 1 Ch 258, a testator had directed by his will that his trustees must apply one-firth of his residuary estate for such patriotic purposes or objects and .such charitable institution or institutions or charitable object or objects in the British Empire us they in their absolute discretion should select. Mr. Justice Russell delivering judgment in this case posed a question:
'.....must every application of the fund for a patriotic purpose be beneficial to the community and therefore charitable?''
His Lordship then went on to answer that question, and he answered it thus :
''It seems to me that it is impossible to hold that. What is or is not patriotic is in many cases mere matter of opinion. Subsidising a newspaper for the promotion 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 of funds for charitable purpose.'
8. The gist of the decision was that in certain circumstances, subsiding a newspaper might be a patriotic purpose; but if the subsidising was done for promoting particular political opinions, it would not be a charitable purpose. It may be noted that Bowman v. Secular Society Ltd. (B), was followed by Mr. Justice Russell in this case.
9. In re Scowcroft; Ormrod v. Wilkiiison,(1898) 2 Ch 638, die vicar of a parish by hiswill dated in 1897 devised to the vicar for the timebeing a building used as a village club and readingroom to be maintained for the furtherance of conservative principles and religious and mental improvement and to be kept free from intoxicants and dancing. It was held to he a good charitable gift. Mr.Justice Stirling said that as the essential portion ofthe gift was for the furtherance of religious andmental improvement, it was a gift for a charitableobject. Had it been a gift for the furtherance ofconservative principles alone, a different positionmight have arisen, about which Mr. Justice Stirlingrefrained from expressing an opinion. To quote Mr.Justice Stirling :
'.....Whether or no' 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 that this is a 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 advance 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 arid 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.'
Relying upon these cases and especially the Tribune case (A) in which their Lordships of the Privy Council held tiiat if the dominant purpose of a trust was a political purpose, it would not be a charitable purpose, Mr. Patwardhan contends that as the purpose of the Kesari Maratha Trust was the advancement of a political cause by the propagation of a certain political policy, the purpose would not be a charitable purpose and the trust would not be a public trust.
10. Mr. Patwardhan has next drawn our attention to a decision of this Court in Subhas Chandra Bose v. Gordhadas I. Patel : AIR1940Bom76 . It was a case in which a testator, having by his will given four legacies to his relations and friend, disposed of the residue of his estate in these words:
'The balance of my assets after the disposal of the abovementioned four gifts is to be handed over to B to bo spent by the said B or by his nominee or nominees according to his instructions for the political uplift of India and preferably for publicity work on behalf of India's cause in other countries.'' A question arose in that case whether the further direction constituted a valid charitable bequest. Decisions in Bowman v. Secular Society Ltd. (B) and the Tribune case (A), were followed and it was held that whatever meaning one attached to the expression 'political uplift of India'', it was impossible to give effect to it as a valid trust, because it was too vague for the Courts to enforce it and that, therefore, the gift failed.
11. In In re, Tilak Jubilee Trust Fund, Bombay 43 Bom LR 1027: AIR 1942 Bom 61, the objects of the Lokmanya Tilak Jubilee National Trust Fund were set out in Sub-clauses (a), (b), (c) and (d) of Clause 11 of the trust-deed dated 31-12-1920. The objects were : (a) 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 by any means which in the like opinion of the managing committee be constitutional; (b) the poJitical advancement of India having for its goal the acquisition of complete national autonomy or ''Swarajya' to be attained by all constitutional agitation and means; (c) the diffusion of political education and knowledge as to the political affairs of India and propagandist work both in India as well as in any part of the world outside India having for its aim the acquisition of complete national autonomy or ''Swarajya' as aforesaid; (d) any object which might conduce to any of the aforesaid objects. It was held by a Division Bench of the Court consisting of Chief Justice Beaumont and Mr. Justice Kania as he then was that the trust was for a political purpose and that it did not fall within the purview of Section 4 (3), of the Income-tax Act. Dealing with the object in Sub-clause (a), Chief Justice Beaumont, in the course of bis judgment, observed that Sub-clause (a) included 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, by any means which in the like opinion of the Managing Committee be constitutional.
Having regard to the language of Sub-clause (a), thelearned Chief Justice observed that it was impossible to say that the managing committee might not regard purposes, which were riot according to law charitable as being nevertheless of National importance for tile inhabitants of British India and the committee might regard methods as constitutional which the law would not regard, as constitutional. Then the learned Chief Justice went on to say :
''..I know of no authority for the proposition that a gift for such purposes as a particular individual or individuals may consider to be charitable) is good.. There are many purposes which an individual, acting quite bona fide, may regard as charitable, but which the law does not so regard. Therefore, I think Sub-clause (a) goes too far.' Dealing with Sub-clause (b) also, the learned Chief Justice said :
'...I think Sub-clause (b) goes too far also, because it is really a gift for political purposes.' Thus so far as sub-clause (b) of the trust in In re, Tilak Jubilee Trust Fund '(J), was concerned, it was held to be a gift for political purposes and as to Sub-clause (a), the provisions were considered too vague and wide and, therefore, the trust was held invalid. So far as Sub-clause (c) was concerned, the learned Chief Justice did not deal with it in the course of his judgment, but Mr. Justice Kama, who delivered a concurring judgment, referred to it and observed :
'Sub-clause (c), whilst containing the words 'political education and knowledge', couples the same with 'propagandist work both in India as well as in any part of the world outside India' and also falls within the rule stated in :
It would appear that in view of the coupling of 'political education and knowledge' with 'propagandist work'', the Court thought that the political education and knowledge were to be used for propagandist work and that, therefore, the two objects were not distributive but were inseparably connected. It was because 'political education and knowledge' and 'propagandist work' were considered as inseparably connected that the whole of the object mentioned in Sub-clause (c) was construed as being non-charitable. In the present case, however, as I shall point out a little later, the two purposes mentioned in Clause 1 of the trust-deed are dissociable and therefore distinct and distributive purposes: Both of them cannot be rolled into one purpose so as to call it a political and therefore a non-charitable purpose.
12. In Halsbury's Laws of England, 3rd Edn., Vol. IV, the learned author has said (p. 242) :
'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 law -- but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.'
These, observations were made on the authority of Bowman v. Secular Society Ltd. (B), to which I have already referred. Then at page 243, the learned author has said :
'..a trust tor furthering the views of a particular political party, whether under the guise of an educational centre or a fund of adult education on party lines, is not charitable.'
Mr. Patwardhan for the trustees relies upon these observations and contends that as the trust constituted by the trust-deed in this case was substantially for furthering the views of the political party which was founded by Lokmanya Tilak, the purpose of awakening political consciousness, amongst the people by diffusing political education was really a political purpose and not a charitable one.
13. We have considered the various decisions to which bur attention is invited by Mr. Patwardhan. In our view, Bowman v. Secular Society Ltd. (B), and other English cases cited by Mr. Patwardhan will not assist the trustees in the case. The English Law regarding charity is materially different from the law on the subject in this country, in that the 'advancement of any object of general public utility' is not one of the heads of charity in English Law. In Income-tax Special Purposes Commrs. v. Pemsel 1891 AC 531 , an effort was made by Lord Macnaghten to classify charitable objects, and Lord Macnaghten said:
' 'Charity' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.'
It would appear that so far as the first two divisions are concerned, they are almost identical with Clauses (1) and (2) of Section 9 of the Bombay Public Trusts Act, 1950. But so far as the fourth division in Lord Maenaghten's classification is concerned, the language thereof is substantially different from the language of Clause (4) of Section 9 of the Bombay Public Trusts Act, 1950. The fourth division of charity in England, in Lord Maenaghten's words, is 'trusts for other purposes beneficial to the community', whereas Clause (4) of Section 9 of the Bombay Public Trusts Act, 1950, relates to 'the advancement of any other object of general public utility'. As Keeton says in his 'Law of Trusts', the first attempt in the English Law to define 'charity' for legal purposes was contained in the Statute 43 Eliz., c. 4, and even today, in England, a purpose is not charitable unless it is within the spirit and intendment of the preamble to 43 Eliz., c. 4, which was expressly preserved by Section 13 (2) of the Mortmain and Charitable Uses Act, 1888. The position in the case before us is entirely different. We are governed by the provisions of the Bombay Public Trusts Act, 1950, and it is the language of Clause (4) of Section 9 which must be considered and given effect to while deciding the question: whether the Kesari Maratha Trust is a trust for a charitable purpose or not.
14. That the position under the English Law and the Indian Law regarding charity is different was pointed out by their Lordships of the Privy Council in the Tribune case (A). It was pointed out that under the English Law, a purpose, though it may be of general public utility, may not yet be a charitable purpose. It is scarcely necessary to say that under the Bombay Public Trusts Act, 1950, if an object is of general public utility,' it would always be considered a charitable object. In the Tribune case their Lordships were not prepared to hold that the property referred to in the 20th and 21st paragraphs of the will was held for the purpose of 'education' in the sense of that word as it appears in Section 4 of the Income-tax Act. Prima facie, therefore, in their Lordships' view, the only question for decision was whether that property was held under trust wholly for the advancement of an object of general public utility. That it was so held was the conclusion reached by Mr. Justice Tekchand of the Lahore High Court, who contrasted the wide terms of the exempting clause in the Indian Income-tax Act with the observations of Lord Lindley in the case of In re, Macduff; Macduff v. Macduff 1896 2 Ch 451, where, after referring to a well-known passage in Lord Macnaghten's speech in. Income-tax Special Purposes Commrs. v. Pemsel (K), Lord Lindley said that in English Law there might be some purposes of general utility which might be charitable and some which might not, the true test being the spirit or intention of the statute of Elizabeth 43 Eliz.. 4. Thus, according to Lord Lindley, the position in English Law is that, although the purpose may be one of general utility, it may or may not be considered charitable, the true test upon the subject being found in the spirit or intention of the statute of Elizabeth.
15. In Subhas Chandra Bose v. Gordhandas I. Patel (1939) 42 Bom LR 89, also, the learned Chief Justice, referring to the case of Income-tax Special Purposes Commmrs. v. Pemsel (K), said that all that Lord Macnaghten meant was that charity in the legal sense might embrace purposes beneficial to the community, but that all purposes beneficial to the community were not charitable. The learned Chief Justice then observed (p. 114) (of Bom LR); (at p. 78 of AIR):
'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.'
The position, therefore, is that under the English Law, even the purpose of a trust may be one for general public utility, it would not necessarily be considered a charitable object. The position under Section 9 Clause (4) of the Bombay Public Trusts Act, 1950, is clearly different.
16. In All India Spinners Assn. Mirzapur v. Commr. of Income-tax , which is a Privy Council case, we find the following classical passage emphasising the difference between the English Law and the Indian Law relating to charity (p. 237):
'..It is now recognised 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 aic not based upon definite and precise statutory provisions. They have been developed in the course of more than three centuries of 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 of 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 tp reconcile. It is true that Section 4 (3), of the Act has largely been influenced by Lord Macnaghten's definition of charity in Income-tax Special Purposes Commrs. v. Pemsel (K), but that definition has no statutory authority and is not precisely followed in the most material particular; the words of the section are 'for the advancement of any other object of general public utility', whereas Lord Macnaghten'a words were 'other purposes beneficial to the community'. 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.''
It is, therefore, clear upon the authority of the above pronouncement of their Lordships of the Privy Council that the definition of what is a charitable purpose, which is contained in the Indian Act, must be construed according to the actual words and the English decisions are to be referred to merely for deriving guidance and no further use. They have no binding authority on the question of construction of the words used in the Indian Act.
17. In Re Hopkinson; Lloyds Bank' Ltd. v. Baker 1949 1 All ER 346, Mr. Justice Vaisey referred to the Tribune case and pointed out that the state of law which was considered in the Tribune case (A), was very different from the law on the subject prevailing in England. Mr. Justice Vaisey said that he would
''...like to mention an important case in the Privy Council, Tribune Press, Lahore v. Income-tax Commr., Punjab, (A) where a very different state of law had to be considered, because in that part of India at that time the ambit of permissible trusts had been extended from charitable purposes as we understand them in this country so as to include the advancement of any other object of general public utility. Clearly thus the advancement of any object' of general public utility, which under the Indian law is considered a charitable object, is not always considered so under the English law.
18. In 43 Bom LR 1027:AIR 1942 Bom 61 (J) also it was pointed out by Chief Justice Beaumont that the definition of charitable purposes in Section 4, Sub-section (3), of the Indian Income-tax Act, went further than the definition of charity to be derived from the English cases, and the reason was that the definition under the Income-tax Act embraced purposes of general' public utility. Thus the volume of judicial decisions shows that the legal position regarding charity, under the English law and the Indian Law, is substantially different. Therefore, the English decisions cited by Mr. Patwardhan cannot be of much assistance to the clients in construing Clause 1 of the trust-deed exh. 12.
19. It may be remembered next that some of the decisions relied upon by Mr. Patwardhan are cases under the Income-tax Act or the Charitable Endowments Act. The Tribune case (A) and Tilak Jubilee Trust Fund case (J) were cases under the Income-tax Act. Subhas Chandra Base v. Gordhandas I Patel (I) was a case under the Charitable Endowments Act. Under both these Acts, in order that a trust may be held to be a charitable trust, all the objects of the trust must be charitable objects. That is not the position under the, Bombay Public Trusts Act, 1950, Section 11 of this Act lays down that 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 of charitable or religious purpose, only on the ground that it is void with respect to the non-charitable or non-religious purpose. For this reason also the English cases, to which we are referred by Mr. Patwardhan, would not assist the trustees.
20. There is another reason also why we think the English cases would not help Mr. Patwardhan's clients. Mr. Patwardhan overlooks the fact that the diffusion of knowledge of politics amongst the people, thereby awakening political consciousness amongst them, and the advancement of political object are not identical things. He is in error when he considers that the two are inseparable. Making people politically conscious by spreading the knowledge of political science amongst them is education by itself. It has a distinct educative value, as it educates public opinion, makes people see things for themselves and imparts under standing to them as to their rights. Creating political consciousness amongst the people has no less educative value than creating, for instance, civic consciousness or social consciousness. If, in addition to arousing people's consciousness as to their rights by spreading knowledge of political theory amongst them, the people are asked to put the awakened consciousness to a political purpose, then of course it would be a political object; but so would it be if even civic consciousness or social consciousness is put to a political purpose. The point is that the mere imparting of knowledge to, or awakening of consciousness in, the public as to their rights--civic, social or political, would not by itself be a political object. Teaching of any text book on constitutional law or political theory would make the people politically conscious. But nobody can say that these subjects are taught in educational institution's with a definite political purpose. In our opinion, therefore, the mere awakening of a consciousness amongst the people, making them realise what their political rights are, would not amount to a political purpose, unless the awakened consciousness is sought to be put to a political purpose. It may be noted in this context that the carrying on of a political propaganda with a definite well-defined object in view is an entirely different thing from making people just conscious of their political rights and leaving it to their .judgment how to use that consciousness, knowledge of political rights is always a good thing, whereas the propaganda carried on for a particular purpose may or may not benefit people. In Clause (1) of the trust-deed, as I have already stated, the purposes mentioned are two: (1) awakening political consciousness amongst the people by spreading knowledge of politics amongst them and (2) organising various other public movements calculated to promote the national ideal. Mr. Patwardhan says that these two purposes are not distributive purposes, but are closely connected together, and that since both the purposes were intended to serve as means of carrying out the object which Lokmanya Tilak had in view, which was a political object, both would be political purposes. We have considered this submission carefully, but are unable to accept it. In our view the two purposes mentioned in Clause 1 are distributive purposes. Each can be carried out independently of the other. Awakening of political consciousness amongst the people by spreading knowledge of politics, through 'Kesari' and 'Maratha' could be done without resorting to the organisation of public movements where people may be exhorted to achieve the national ideal. On the other hand, the organisation of public movements calculated to promote the national ideal could be done without spreading the knowledge of politics through the newspapers. It is true that in so far as both the purposes of the trust were intended to he carried out for fulfilling the object which Lokmanya Tilak had in view, it might be said that they were related to the object of Lokmanya Tilak. But the fact that each of these purposes of the trust was so related to or connected with the said object would not mean that the purposes themselves were inter-related. The relation of each of these purposes to the object of Lokmanya Tilak would not detract from the individual and independent character of each purpose. It would not subordinate one purpose to the other, nor would it merge one purpose in the other. Holding of public meetings and organising public activities for exhorting the public to adopt and pursue a particular policy for attaining a particular goal is one thing, whereas making people politically conscious by spreading knowledge of political science through newspapers and leaving it to the judgment of the people so made politically conscious to determine what path or policy they should follow for the attainment of the goal is a totally different thing. There is no connection or inter-dependence between them. The objective may be one. But the means, the methods for attaining it may be different and it is clear that the purposes of the trust as mentioned in Clause 1 were the means to be adopted or methods to be followed for achieving the object of Lokmanya Tilak. They are, therefore, distributive purposes. As the purposes are distributive purposes and as, in our view, the first purpose is a charitable purpose, the fact that the second purpose may be a non-charitable purpose would not detract from the trust being a public trust under the Bombay Public Trusts Act. This is clear as Section 11 of the Act lays down that a public trust created for purposes some of which are charitable and some are not shall not be void in respect of the charitable purpose simply because it is void with respect to other purposes which are non-charitable purposes.
21. It is undeniable that creating awareness of human rights in the minds of the people is a matter of general public good. Imparting knowledge of political science to the people, whether through text books or newspapers, is as much an object of general public utility as, for instance, the imparting of knowledge of social, mental or moral science. It would make people see things for themselves, would dispel their ignorance as to their rights and would enable them to determine their own course of action instead of other person or persons determining it for them. In our view, therefore, making people con-scions of their rights as citizens of this country would be an object of genera public utility and would accordingly be a charitable purpose under Clause (4) of Section 9 of the Act. Accordingly even if the second purpose be held to be non-charitable purpose, the Trust would be a public charitable trust in view of the provisions of Section 11 of the Act.
22. I may now add a few words about Clause 11 of the trust-deed. Clause 11 deals with the celebration of Ganesh Utsav on the premises of Gaekwad Wada out of the funds of the trust, and the question is whether this also could be considered as one of the purposes of the trust. Mr: Desai for the the State contends before us that this also, viz., the celebration of Ganesh Utsav, would be one of the purposes of the Trust and that the said purpose, being a public religious purpose, the trust would be a public trust In our view, the celebration of Ganesh Utsav is not one of the purposes of the trust. As the learned District Judge has pointed out in the course of his judgment, it is not unusual that secular gatherings begin with and end with the recitation of certain prayers. Just as a recitation of prayers is done for invoking divine blessings, so also the celebration of Ganesh Utsav is done, according to the popular belief, for the purpose of invoking the blessings of Ganesh. Therefore, simply because the authors of the trust provided in Clause 11 of the trust-deed that the Ganesh Utsav should be celebrated, we are not prepared to go to the length of holding that it was one of the purposes of the trust. As the learned District Judge has said, the purpose of this Utsav was 'an incident in the management of the trust'. After all, what the authors of the trust directed in Clause 11 was that some small amount out of the trust funds should be spent every year for celebrating the Ganesh Utsav. This, in our view, would not make it one of the purposes of the trust.
23. Mr. Patwardhan has invited our attention to Emperor v. Bal Gangadhar Tilak 10 Bom LR 848 in support of his contention that Lokmanya Tilak was the leader of a political party. It is undoubtedly true that Lokmanya Tilak was a great leader of men and a great gentleman; but what we are concerned with in this case is strictly to construe the provisions of the trust-deed ex. 12. We are told that the 'Kesari'' and 'Maratha' newspapers were organs for propagating the views which Lokmanya Tilak held. That may he so. What we have to decide, however, is whether the awakening of political consciousness amongst the people by spreading the knowledge of politics is a charitable object. For the reasons mentioned by us in the judgment, we have come to the conclusion that it is a charitable object.
24. In the result, as we come to the conclusion that the Kesari Maratha Trust is a public trust, the appeal must fail and be dismissed with costs. Costs to come out from the trust funds.
25. Appeal dismissed.