1. On 16th-July 1922, Behari Lal, a Hindu, owner of a valuable estate mainly situated in the Muzaffarnagar District, hereinafter called the settlor, executed deed of wakf, hereinafter called the wakf or trust, by which he dedicated virtually his entire estate for purposes of national education and for founding a school to impart such education to be named after him as Behari Lal National School, Muzaffarnagar. Almost twelve years later on 12th January 1934, he executed another deed of declaration called by him Ailan-nama by which he cancelled the previous trust made by him. And having done so, on 18th May 1934, he raised an action in the Court of the first subordinate Judge of Saharanpur for a declaration
that the instrument of trust dated 16th July 1922, is null and void and unenforceable in law and that the plaintiff is the owner of the property in dispute.
2. The defendants to this suit were the surviving trustees nominated under the trust, two other persons who questioned the settlor's right of cancelling the trust and five members of the public who maintained its validity. Under Order 1, Rule 8, Civil P.C., proceedings were taken to make the litigation a representative one. The plaintiff's case, shortly stated, is that the said wakf embodied a sham and fictitious transaction and assuming it to be genuine, the trusts created by it were void for vagueness, indefiniteness and uncertainty and were against public policy and 'were not of a charitable nature. The trial Court found that the trust deed was duly executed but the trust created by it was void and unenforceable in law and it gave to the plaintiff the declaration claimed for. Against the said judgment and decree, some of the defendants have preferred this appeal. The deed of wakf is an elaborate document. In the preamble, the settlor expresses his desire to devote his property for charity and he regards national education as the best form of charity and dedicates his property for that purpose. He explains what his conception of national education is. Having done so he appoints a board of trustees consisting, of nine members, including himself, for management and administration of the trust. He then lays down the aims and objects of the trust or wakf which are the establishment of a school and a boarding house and founding of scholarships for foreign education. This is followed by a detailed scheme of management the noticeable features, of which are that the settlor was to remain the managing trustee for his life and after him his foster son Debi Sabai was to remain the managing trustee for life and both of them were to receive 1/3rd of the nett income of the estate for their lives with a right of residence in a house subject of endowment. Provision was also made for the payment of Rs. 500 per mensem as allowances to certain ladies dependent upon him, for the payment of Rs. 100 per mensem for the upkeep of certain temples and for the payment of Rs. 26,800 for debts owing by the settlor. In the end there was a schedule specifying the property endowed which was situated in about fifty villages and also consisted of numerous houses in the districts of Muzaffarnagar, Meerut and Saharanpur and which yielded an annual income of over Rs. 50,000. (Their Lordships proceeded further to state as to how the settlor came to be possessed of the trust property, the circumstances under which the trust was executed and the subsequent acts and conduct of settlor. It is manifest that from its inception to the end not a penny was spent for the purposes of the trust and beyond execution and registration of the deed and mutation of names in Government papers-and change in the form of accounts of the estate and the ostensible management of the estate in the name of trust and holding of occasional meetings of the trustees in which no real business relating to trust was transacted, nothing wag done to promote or carry out the trust or its scheme.
3. There are two stories about this 'wakf.' The plaintiff's story is that it was a mere device and a step-in-aid to ward off Nand Lal's suit. It was brought about as a counterblast to secure the popular sympathy and the sympathy of the Congress party against the influence of caste people who were working in favour of Nand Lal, and that there was no real intention on the part of the settlor to dedicate any property to any charity whatever. It was a mere paper transaction and a sham and fictitious transaction. The plaintiff further alleges that he had adopted this scheme and device at the suggestion and under the influence of his manager Mohammad Yahia and his standing counsel Ali Hasnain, both of whom were appointed co-trustees along with him and six others of Congress persuasion. The case of the defendants is, in which is included the case of Mohammad Yahia and Ali Hasnain, both of whom are defendants in the case and both of whom are witnesses for defence, that the settlor made the 'wakf' out of a genuine desire for charity and they had no hand whatever in it and it was a free and spontaneous act of the settlor.
4. The probabilities of the case are not unevenly balanced. The settlor was a man of advancing age without wife and children. The desire for charity is a natural desire on the part of a man in circumstances in which the settlor was situated. Under the deed ample provision is made for his maintenance and for the maintenance of those who had any claim on his bounty. Provision is made for his debts and for the upkeep of family temples. The deed bears the impress of careful thought. Several drafts were prepared. Prom the fair draft an item of property was scored out and later on transferred to Debi Sahai. The deed bears a stamp of fifteen hundred rupees: it is a registered document; mutation was effected in Government records and form was changed in the accounts of the estate and the estate was managed in the name of trust and several meetings of the Board of Trustees were held in which, although no real business in furtherance of the trust was done and although possibly there was a desire to hoodwink the Congress-minded trustees, the trust was not expressly repudiated. These are come of the indications in support of the reality of dedication.
5. On the other hand, at the time when the deed was executed Nand Lai's suit was in the air and that suit undoubtedly had communal support and influence behind it and it was a serious litigation which might well have frightened the settlor who was a man without any education and who had then recently got possession of the estate after a harassing litigation, some of which continued right up to the time of the execution of the deed. A trust for national education would undoubtedly have brought him public sympathy and support and undoubtedly Congress sympathy and support and might well have served in his opinion as a counterblast to the communal support which favoured his opponent Nand Lal. In the view of the settlor and his advisers, such a scheme as is embodied in the deed of wakf could well had been a step-in-aid in warding off and also in the defence of Nand Lal's suit. The fact that the settlor was excommunicated in April 1922, that the settlor got Debi Sahai married twice successively after his excommunication and that at least one of these marriages was solemnized after the execution of trust and that he was anxious even after the execution of the deed of wakf that a male child be born to Debi Sahai so that the child might be a possible successor to the estate and the further fact that not a penny was ever spent in furtherance of the objects of the trust and neither the settlor nor his advisers Yahia and Ali Hasnain had leanings for the Congress, or for education according to the ideals of the Congress and lastly the fact that in Nand Lal's suit of 1923 it was alleged by Nand Lal that the deed of wakf was a fictitious document effected to defeat Nand Lai's claim, lend support to the contention that the transaction was a sham one and was a mere devise to catch public and Congress sympathy. The trust created by the 'wakf' is of a charitable nature and is not governed by the provisions of the Trusts Act and will have to be judged under the provisions of the Hindu law. In Mayne's Hindu Law and Usage, Edn. 10, at p. 925, in discussing the proof of dedication the law on the subject; is stated as follows:
The mere execution of a deed of gift or instrument is not enough to constitute a valid endowment. It is necessary that the executant should divest himself of the property; there must be a transfer of the apparent evidences of ownership from the donor to the donee. Whether he has done BO or not can only be determined by his subsequent acts and conduct. But where the intention to dedicate is clear and the divestiture is contemporaneous, the subsequent acts and conduct of the donor are irrelevant and cannot reinvest him, for a valid endowment, once created, can never be revoked. Where, however, this is not the case and his sub-sequent dealings with the property show that he did not intend to create an endowment, there will to no trust and the property will not be debutter and will continue to be his and is liable to be attached and sold in execution of decrees against him.
6. In Mulla's Hindu Law, Edn. 9, at p. 475, the law on the subject is stated as follows:
The mere execution of a deed, though it may purport on the face of it to dedicate property to an idol, is not enough to constitute a valid endowment; for the real object of the executant may be to defraud creditors, or to defeat the provisions of the ordinary law of descent, or to restrain alienations and keep the property in perpetuity in the family. It is necessary for the validity of a deed of endowment that the executant should divest himself of the property. Whether he has done so or not, is to be determined by his subsequent acts and conduct. Thus, if the profits of the property are appropriated by the executant to his own use, and not to the worship of the idol, and his subsequent dealings with the property show that he did not intend to create an endowment, the dedication will be inoperative, and the property cannot be treated as debutter, i.e., belonging to the idol. The property will still continue to be his, and it may be attached in execution of a decree against him. Similarly, if a Hindu purchases property in the, name of his idol, without setting up the idol for public worship and without appointing priests for its worship, the property does not become the property of the idol, but remains his own private property.
7. The problem therefore before us is what was the real intention of the settlor when he executed the deed. Did he intend to make a genuine 'wakf' as the defendants contend or did he intend to make a sham 'wakf' as the plaintiff alleges? There is a third possibility that he created the wakf subject to a reservation and a risk that it might stand or it might not stand according as future circumstances shaped themselves. Nandlal's suit might not come off or if it came off, the trustees might not take the bother of its defence, the trust in that case would not stand. On the other hand, if the suit came off and trustees fought it out, they might well insist on enforcing the trust also, in that case it might stand. But, this possibility is not the case of either side and is not supported by any evidence and may be ruled out of consideration. Thus, there are only two alternatives before us, whether the transaction was a genuine or a sham one.
8. The trust amounts to a virtual transfer of the entire estate of the settlor under pressure of a serious litigation relating to the entire estate. It is in favour of objects for which the settlor had shown in his life no previous or subsequent leanings. The nature of trust was such as it was likely to be of assistance to the settlor in warding off the threatened suit or in furnishing a step in aid in defence of the said suit. The desire or anxiety of the settlor that a male child be born to Debi Sahai so that a successor be found to the estate continued even after the creation of trust. And it is not disputed that from its very inception to the end between 1922 and 1934 nothing worth mentioning had been spent for the purpose of the trust or in carrying out the objects of the trust and for one reason or other the operation of trust had remained a dead latter and a paper transaction. No doubt, if once a valid trust had been created, its subsequent non-enforcement could only be a breach of trust and would not nullify the trust, but the fact that the trust was never oarried out or acted on is a matter which cannot be disregarded. We have to add to this that the story which arises from these facts, viz., that the trust was a counter-blast to Nandlal's suit and was a sham transaction is not a new story and was put forward by Nand Lal himself in his plaint in 1923 soon after the creation of wakf.
9. It is true that on the final termination of Nandlal's litigation in May 1929, the trust was not expressly and immediately repudiated by the settlor and some meetings of trustees continued upto January 1934. But what was accomplished at these meetings? They were in our opinion nothing but mere attempts on the part of some of the Meerut trustees to take the settlor at his word and to remind him to do his duty and were mere attempts on the part of the settlor to get out of the tangle by obstruction and delaying tactics in which he had placed himself by executing an ostensible trust. On the whole, we have come to the conclusion that the settlor never intended to found the charity embodied in the deed of 'wakf,' and although an ostensible wakf was created in August 1922 and the fiction of a wakf was more or less kept up till 1934, the said wakf and its ostensible acting on were all sham and illusory proceedings and consequently the said wakf is void in law. Assuming that the 'wakf' is genuine and not sham or illusory, is it one of non-charitable nature, is it indefinite and uncertain or is it opposed to public policy? 'Charity' in relation to trusts in English law has a technical meaning and is not confined to relieve poverty and indigence and it does not embrace all objects of public utility. There is a famous classification of charity to be found in Sir Samuel Romilly's argument in the well known case in Morice v. Bishop of Durham (1805) 10 Ves. 522 at p. 531. The learned Counsel is reported to have submitted as follows:
There are four objects, within one of which all charity, to be administered in this Court, must fall; first, relief of the indigent in various ways : money : provisions : education : medical assistance : etc., secondly, the advancement of learning; thirdly the advancement of religion; and fourthly, which is the most difficult, the advancement of objects of general public utility.
10. This classification was approved and adopted by Lord Macnaghten in his speech in another well-known case, Commissioners for Special Purposes of Income-tax v. J.F. Pemsel (1891) A.C. 531 at p. 583. Says his Lordship:
How far then, it may be asked, does the popular meaning of the word 'charity' correspond with its legal meaning? '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 beads. The trusts last referred to are not the less charitable in the eve of the law; because incidentally they benefit the rich as well as the poor, as indeed, every charity that deserves the name must do either directly or indirectly.
11. Speaking of this classification In re Macduff; Macduff v. Macduff (1896) 2 Ch. 451 at p. 466, Lord Lindley in delivering one of the judgments of the Court of Appeal observed as follows:
What Lord Macnaghten meant is tolerably plain. He took the classification of charity from the argument of Sir Samuel Romilly in Morice v. Bishop of Durham (1805) 10 Ves. 522 and the passage in Sir Samuel Romilly's argument runs thus : 'There are four objects, within one of which all charity, to be administered in this Court, must fall' - that is to say, within one of which they must come; but he does not say everything which comes within any one of them must be a charity; that may be so, or may not be so, but they must come within one of these foil heads; 'first, relief of the indigent; in various ways; money : provisions : education : medical assistance etc., secondly, the advancement of learning; thirdly, the advancement of religion; and fourthly, which is the most difficult, the advancement of objects of general utility'. Now, Sir Samuel Romilly did not mean, and I am certain Lord Macnaghten did not mean, to say that every object of public general utility must necessarily be a charity. Soma may be and some may not be.
12. It may therefore be, that in England according to Chancery cases all objects of public utility cannot be regarded as charity. Indian Statutes on the other hand imply that all works of public utility may be regarded as charitable, see for example Charitable Endowments Act (Act 6 of 1890), Section 2, T.P. Act, (Act 4 of 1882), Section 18 and Income-tax Act (Act 11 of 1922), Section 4, Sub-section 3. And what is a work of public utility in India will have to be judged according to circumstances and conditions prevailing in this country. In a recent Bombay case, Subhas Chandra Bose v. Gordhandas I. Patel ('40) 27 A.I.R. 1940 Bom. 76 Sir John Beaumont has expressed sympathy with the view that in India all works of public utility or benefit may be regarded as charitable. It is however not necessary in this case to decide the point whether all works of public utility are charitable. Here the trust is for education and for founding and maintaining a school for imparting education. Such trust has always been regarded as charitable in England. In Halsbury's Laws of England, Edn. 2, para. 153 at p. 116 it is stated:
The advancement and propagation of education and learning generally are charitable works. Such also are the establishment and support of colleges, schools, professorships, fellowships, lectureships, scholarships and-prizes and the providing of schoolmasters.
13. In another well known case of the House of Lords, Whicker v. Hume (1858) 7 H.L.C. 124 at p. 153, where the trust wag in favour of benefit of learning and education in every part of the world and the argument of indefiniteness and non-charitable nature of trust was advanced, Lord Chelmsford in his speech observed as follows:
My Lords, the only remaining question that arises upon the words of the bequest in the codicil is, as to whether this is a good charitable bequest of the testator, by which these stocks, funds and securities are given to trustees 'upon trust to apply and appropriate the same in such manner as the said trustees or trustee shall, in their absolute and uncontrolled discretion, think proper and expedient, for the benefit, advancement and propagation of education and learning in every part of the world', and it appeared to be conceded in the course of the argument, that if the bequest had stopped short at the word 'education', the gift would have been good. But it is said that the word 'learning' is a word of very extensive signification and that you may benefit learning in various ways, which would not be charitable. And in the course of the argument, an illustration was borrowed from the argument of counsel before the Master of the Rolls See 14 Beav 509 in this case. It was suggested in the course of the argument there, that if you could suppose any one instance in which learning might be benefited by applying the funds in a way that would not come within the description of a charitable object, that would make the bequest invalid and void. Now it appeared to me, when that argument was put forward, that that was rather begging the question; because it was first of all putting a construction, and a very extensive construction, upon the word 'learning', which possibly it may be found not necessarily to bear; and it was only by putting that wide construction upon it, that you could suppose that there were purposes to which the fund might be applied, which would not come within the description of a charitable object. The word 'learning' is a word which is susceptible of various meanings. It is rather extraordinary that in Archbishop Whateley's work upon logic, it is placed among the equivocal words, that is words which have two significations. He says, 'learning signifies either the act of acquiring knowledge, or the knowledge itself. Exempli gratia he neglects his learning; Johnson was a man of learning.' Now the question is, in what sense did the testator use this expression? I apprehend that if there are two meanings of a word, one of which will effectuate and the other will defeat a testator's object the Court is bound to select that meaning of the word which will carry out the intention and objects of the testator; and I think that your Lordships are not without aid in giving the particular limited interpretation (if I may use the expression), to the word 'learning' which is required for the purpose of establishing the validity of this bequest, because when you find that the testator associates with that word 'learning' the word 'education', I think that from the society itself in which you find the word, your Lordships may gather the meaning which it is necessary to put upon it, and that he means the word 'learning' in the sense of imparting knowledge by instruction or teaching. Well, if this construction be correct, then I apprehend there is no difficulty whatever because it will range itself pretty much within the meaning of the word 'education', although not precisely synonymous with it, and it is admitted in the argument that if the: word 'education' had stood alone, the bequest would have been valid.
But then it is said, that the bequest is of such an extensive nature, that it is impossible that it can be carried into effect; that it extends over the whole habitable world. But, I apprehend, my Lords, that there is no difficulty whatever with regard to the extensive character of this gift, because of the trust for the subject upon which the discretion of the trustees is to be exercised is specific and limited. It is for 'education' and for 'learning' in the sense of teaching and instruction. And, in that sense it appears to me that the case which was cited by the respondents and which is printed in the respondent's case, the President of the United States of America v. Drummond Vide the Roll 12th May 1838 may be applicable where Lord Langdale decided that a gift to the United States of America to found at Washington, under the name of the 'Smithsonian institution and establishment for the increase of knowledge among men' was a valid charity. There the area was as special and extensive as in the present case. The particular mode in which the object of the testator was to be carried out was described, namely by founding an institution for the increase of knowledge among men. Here it is to instruct, to teach and to educate throughout the world. Then the mere circumstances of this spacious area being open to the discretion of the trustees would not prevent the gift from being available as a good charitable bequest, the discretion being sufficiently pointed and specific to make it definite and certain.
14. It is not disputed that a trust for charity generally or for education generally is not void for indefiniteness or uncertainty and that it is a perfectly good trust. Although charity is a term and education is an expression which applies or may apply to a variety of objects about which there may be a legitimate difference of opinion, charity, e.g., may be relief of poor, it may be relief of sick or it may be advancement of learning, etc. Education may be of a 'maktab type' of a 'pathshala type' or of a 'gurukul type' or of a 'public school type.' It may be primary> secondary, High School or of University variety; it may be philosophical, scientific, literary and so on. Yet, it is not disputed that a trust in favour of education simpliciter will not be void for vagueness or indefiniteness simply because the term education applies to a variety of objects about which there may be a difference of opinion and different persons may have different ideas about it. The mere fact that in founding a charity the settlor has described it in general terms so that the description given by him applies to a number of objects does not render the trust void for indefiniteness or uncertainty. Indefiniteness or uncertainty in relation to charitable trusts arises where charitable trusts are mixed up with non-charitable trusts or where charitable trusts and non-charitable trusts are created by alternative clauses disjunctively used. But where trust is exclusively for charity or exclusively for a charitable object, and that charitable object has great many facts or includes a variety of objects within its denomination each of which in its terms is charitable, the diversity and multiplicity of objects to which charity may be applied and difference of opinion that may exist about including objects within its denomination will not render charity vague or indefinite. The essential thing to make a charity vague, indefinite or uncertain is that it should be mixed up with non charitable objects or it should include objects both of charitable and non-charitable nature alternatively or disjunctively or in such close alliance that it should lead to the application of trust funds to non-charitable purposes.
15. A great many cases were cited at the Bar but there is no dispute as to law. The law has been well settled that indefiniteness or uncertainty in relation to the objects of a trust may render the entire trust void. To determine uncertainty or indefiniteness in relation to trusts, one of the rules of the English Court of equity is that the Court must be in a position to supervise the trust and administer it in case of a breach of trust or in case of any other circumstance arising in connexion with it in which such a course becomes necessary and where the Court is not in a position to administer the trust by reason of the vagueness of the object of trust the trust is void : see Morice v. Bishop of Durham (1805) 10 Ves. 522; see also In re Hummeltenberg (1923) 1 Ch. 237. Another rule of equity is that a Court cannot make a new will for the founder of trust if he has left his language vague or uncertain so that either his meaning cannot be found out or the natural meaning of expression used by him is such that it can equally apply to charitable objects and also to non-charitable objects and it is not possible to separate them in law : see Grimond v. Grimond (1905) 1905 A.C. 124. These rules are firmly established and there is no question about them.
16. Questions of indefiniteness do arise when trusts are for alternative objects, one or the other of which may not be charitable and where it is open to a trustee to devote the entire funds on objects non-charitable without being called upon to answer a charge of breach of trust, e.g., where trust is for charitable or philanthropic or patriotic objects, where authority is given alternatively to devote funds for patriotic or philanthropic objects, some of which may not be charitable at all. The main problem in such cases is whether the alternative clauses are to be read disjunctively or conjunctively : see In re Macduff; Macduff v. Macduff (1896) 2 Ch. 451, Blair v. Duncan (1902) 1902 A.C. 37, Houston v. Burns (1918) 1918 A.C. 337, In re Tetley (1923) 1 Ch. 258 and In re Tetley; Attorney General v. National Provincial and Union Bank of England (1924) 1924 A.C. 262. Questions of indefiniteness also do arise where trust is for a vague or indefinite purpose like 'dhararn', 'philanthropy', 'patriotism,' expressions which include objects which may or may not be charitable. The leading case in India on this topic is the judgment of the Judicial Committee in 23 Runchordas Vandravandas v. Parvatibai ('99) 23 Bom. 725. But even in cases where a trust for charity is allied with non-charitable objects and it is possible to read clause conjunctively or charity overshadows other objects of trust and controls them the trusts are enforced : see In re Smith; Public Trustee v. Smith (1932) 1 Ch. 153 And it is difficult to see how a purely legal question of indefiniteness or uncertainty can arise with reference to a trust for a single object and single object only which is wholly charitable. The only question which may arise in such a case is whether the object has been sufficiently specified or not, which will be a question of fact depending upon the construction of a particular document with the aid of surrounding circumstances.
17. Sir Tej Bahadur Sapru's argument on indefiniteness or uncertainty may now be summarised. The settlor had created a trust for national education and for founding and maintaining a school in which national education only was to be imparted. According to Sir Tej national education is a matter about which there may be legitimate difference of opinion and he contends that a Court could not assume administration of sucb a controversial matter. The settlor has given two directions about national education, both of which, according to Sir Tej, are inter, connected, and if one fails the other also falls to the ground. One direction is that national education should be according to the standard laid down by Indian National Congress for propagation of which schools have been established. The second direction is that national education should be free from official control and restriction and should be in vernacular and should inter alia stimulate 'spirit of nationalism, love of motherland and piety of character'. He contends that there is no evidence that Congress had laid down any standard of national education whatever, and that any national schools founded by Congress or otherwise existed when the wakf was made. Therefore, the direction as to the Congress standard is wholly ineffective and the other direction which hangs on it also fails. He further contends that according to the second direction, education was to be given in vernacular. Now there are so many vernaculars in this country. How is the Court to make a selection? National education was required by the settlor to lay a special emphasis on the 'spirit of nationalism, love of motherland and piety of character.' There is no known formula or agreed standard by which the education of such a character can be discovered and imparted and in fixing a syllabus for such an education the Court will be involved in a maze of controversy. Lastly, he contends that the settlor directed that the education should be free from official restrictions and management which impliedly excludes the jurisdiction of Court for all purposes including maladministration and indicates that the settlor wanted his trust not to be administered by Court at all, and was consequently of a vague and indefinite nature.
18. The gravamen of Sir Tej's charge is that a trust for national education is, in other words, a trust for teaching of nationalism or a trust for teaching of patriotism or politics and as such it is both indefinite and non-charitable. According to him it is allied on one side with those class of cases of which Bonar Law Memorial Trust v. Inland Revenue Commissioners (1938) 17 Tax Cas 508, a trust for political propaganda, is a leading example and on the other side it is allied with that class of cases of which In re Hummeltenberg (1923) 1 Ch. 237, a trust for teaching spiritualism and training of mediums, is another leading example. He also relies upon those English cases in which while dealing with alternative clauses, a trust for 'patriotic objects' was not regarded as charitable or definite, see In re Tetley (1923) 1 Ch. 258 and In re Tetley; Attorney General v. National Provincial and Union Bank of England (1924) 1924 A.C. 262 and upon the recent Indian case in Subhas Chandra Bose v. Gordhandas I. Patel ('40) 27 A.I.R. 1940 Bom. 76 in which a trust for 'political uplift of India' was regarded indefinite and non-charitable.
19. Now a trust for national education may mean a trust for education of a people or of a subject or it may mean a trust for training of mental or moral quality or habit or it may mean a trust for imparting education generally in which special emphasis may be laid in developing mental and moral outlook which tends towards nationalism, just as a trust for Christian education or Islamic education or Hindu education may mean any one of these things. It is a matter for the settlor to indicate in which sense he uses the expression. If he uses it in the sense of a people or of a subject or in the sense of general education in which emphasis may be laid upon developing national outlook, in our opinion no real difficulty arises. Sir Tej's contention is that there is no exact or agreed standard to find out what nationalism as a subject is or should embrace or what kind of education is calculated to develop patriotism or nationalism. No more there is for moral education or for religious education or for philosophical education or for education which will promote bravery, loyalty or develop qualities of humanity and charity. Yet, in our judgment, education does not cease to be education merely because it insists in developing these qualities nor do we think that nationalism or patriotism as a subject is a matter so indefinite that it cannot be made the subject of study or education. The only question is where trust is not for education generally but for education of nationalism alone and that as a matter of mental habit or moral quality, can it be regarded as sufficiently definite or charitable?
20. The cases which lay down that the trust for 'patriotic objects' are not charitable have no application because 'patriotic objects' in plural may include objects some of which may be charitable and some non-charitable. Similarly, the cases which lay down that a trust for 'political purposes' or a trust for 'political uplift of India' is void for indefiniteness do not apply because political purposes or political uplift may include works which are non-charitable. The trust ex hypothesi is a trust for a single definite object namely to teach nationalism or patriotism. In this country where so many castes and communities and sects and divisions exist, and where there are so many conflicts and animosities, religious, communal or provincial, a trust for promoting unity and a sense of nationalism may well be regarded as a trust for an object of public utility and benefit and consequently of a charitable nature, and if it were necessary to do so, we should be prepared to hold that it is both charitable and definite. A trust for promoting nationalism and patriotism cannot be regarded per se as a trust for political propaganda or for political purpose or a trust for purposes so shadowy, or indefinite as teaching of spiritualism or training of mediums. But the point really does not arise because the trust created by the settlor in our judgment was for education and for founding a school in which education was to be imparted with certain special characteristics. These special characteristics were that the education was to be national according to the standard laid down by the Congress and for the propagation of which educational schools existed in the country and its special features in the conception of the settlor were that it was to be free from official restrictions, free from official management. Its medium was Indian vernaculars and the education was
to lay special stress on giving instructions on spinning of yarns, weaving and also other kind of industrial and manual subjects and on creating in the students national feelings, love of motherland and purity of character.
21. As a matter of construction, we do not consider that the two directions of the settlor as to following the Congress standard and as to following his own conception of education are such interdependent directions that if one should fail the other should fail also. We think that they were both independent and alternative directions with a view to supplement each other and not inconsistent with each other and the latter of which, viz., the settlor's conception of education, will and should stand even if the direction as to Congress standard fails to be given effect to for any reason. As a matter of construction, we further do not consider that the Court's jurisdiction to supervise the trust was excluded by the settlor; the direction as to official restrictions or official management was, in our opinion, intended for a different purpose altogether. Further, we do not agree that exclusion of Court's jurisdiction, assuming that the settlor had expressly said so, has really anything to do with the question of indefiniteness of trust, though it may have some bearing on the question of public policy which is a separate attack on the trust and will have to be separately considered.
22. The defendants maintain that the Congress had in fact set up a standard of national education and national schools promoted by the sympathisers of Congress movement existed in fact at several places. They further contend that the deed does not imply that the national schools were founded by the Congress and on the language of the deed they may have been founded by others in sympathy with Congress ideals. This latter contention seems to be correct. At a late stage when the trial was over the defendants wanted to tender in evidence documents on this part of the case which were ruled out by the trial Court and on the evidence as it is before us it is not possible to say one way or other whether Congress had set up any standard of education or not and whether national schools on Congress lines existed or not. Let us assume that the Congress had not set up any standard of national education and no national schools existed and the settlor was mistaken in both these matters. What then is the result? If the direction of the settlor in this matter fails his other direction, namely as to what the settlor's own conception of national education was, stands and it should be followed. The only question is: is there any indefiniteness about it? We do not think that the fact that there are many vernaculars in this country makes the direction as to the use of the vernacular language indefinite. Whether education is given in one vernacular or in another would not make the object non-charitable in either case. Similarly, difference of opinion as to what education will stimulate national feelings and purity of character will not make the work of education imparted in the school as non-charitable and so long as there is no danger of any non-charitable work being carried on under cover of a trust no real question of indefiniteness arises. Difference of opinion may exist as to what education would best promote nationalism, patriotism and piety just as there may be difference of opinion about education generally and for the matter of that even with regard to education on special subjects or branches, but such difference, in our opinion, do not render a trust for education and a school vague or indefinite. Whether one kind of education is imparted or of the other kind so long as it is education in the sense in which the word is generally understood and effort is made to give effect to settlor's wishes and directions the work carried on must be held to be of a charitable nature and so long as under a trust work of non-charitable nature is not allowed or permitted no real question of indefiniteness can arise.
23. In our judgment the trust is not open to an attack on the ground of. vagueness or uncertainty and it is one which, if necessary, can be administered by a Court and no question of making a fresh trust for the settlor arises in the case. The next question is whether the trust is for a non-charitable purpose. In England a trust for political purposes is regarded as non-charitable and consequently indefinite. In Halsbury's Laws of England, Edn. 2, p. 137, para. 178, the law is stated as follows:
A trust for the attainment of political objects is invalid, not because it is illegal - for every one 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. Any purpose with the object, of influencing the Legislature is a political purpose.
23. In Bowman v. Secular Society Ltd (1917) 1917 A.C. 406 at p. 442 Lord Parker In his speech has observed as follows:
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 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.
24. In England a trust for educational purposes, also where educational purposes are subordinated to political purposes so as to make the dominant purpose of trust a political one, is also regarded as non-charitable and consequently indefinite : see Bonar Law Memorial Trust v. Inland Revenue Commissioners (1938) 17 Tax Cas 508, Commissioners of Inland Revenue v. Temperance Council of Christian Churches of England and Wales (1926) 10 Tax Cas 748 and also Trustees of the Tribune Press, Lahore v. Commissioner of Income-tax, Lahore . But we do not understand it to be the law in England that a trust for education and for founding' and maintaining a school for imparting education becomes non-charitable and consequently indefinite merely because it is to be administered by a political party, nor is such a trust to be regarded as non-charitable and consequently void for uncertainty because it directs the ideal of a particular political party to be followed in education so long as the trust is intended to be really for education and educational purposes and it is not a mere cloak for political propaganda or authorises or permits the trustees to carry on political propaganda under cover of trust. Indeed, we know that where political purpose or non-charitable purpose was subordinated and educational purpose preponderated even in a mixed trust, such a trust was maintained and enforced : see In re Scowcroft; Omrod v. Bishop's Itchington (1898) 2 Ch. 638 and In re Hood; Publics Trustee v. Hood (1931) 1 Ch. 240 at pp. 250 and 252. The trust in this case is for national education and for the establishment and maintenance of a school where national education is to be imparted and for a boarding house and for giving scholarships for foreign studies. It may be that in the Board of Trustees there are six persons belonging to a political party and one political party has a predominant voice in its administration. It may be that the education to be imparted in the institution is to follow the ideals of a political party but the real purpose of the trust was education and we are definitely of opinion that the trustees under this trust so conducting education as to make it political propaganda will not be following the directions of the settlor and can be restrained.
25. There remains the question whether the trust is opposed to public policy. The deed was executed at a time when what is called the non-co-operation movement was in full swing. The Congress in those days advocated a policy of triple boycott, one of which was a boycott of the British Courts. In the deed it is laid down that the education in the institution shall be on Congress lines and it should be free from official restrictions or official management. Sir Tej contends that the author of the trust implied that the British Courts should have no jurisdiction over this trust or its administration and if a trust is created expressly or impliedly with a condition that the Courts of the land should have no control over it, such a trust is opposed to public policy and should not be recognized. It is possible that the settlor may have intended to exclude the jurisdiction of Courts but he has not said so and as a matter of construction it is not possible to read the clause in the deed as excluding the jurisdiction of British Courts even with the aid of the surrounding circumstances on which Sir Tej relies. But even if this deed had contained an express clause stating that jurisdiction of British Courts should be excluded, in our judgment such a clause could be disregarded and should not be a fatal objection to the validity of the trust.
26. The attack on the trust on the ground that it is vague, on the ground that it is non-charitable, on the ground that it is opposed to public policy fails, but on the ground that it was a sham transaction and was never really acted upon succeeds. As a result the decree of the trial Court should be and is hereby affirmed save as to costs. But because this litigation has been the result of the plaintiff's own wrong and ill-advised action and the findings in the case have gone partly against the plaintiff and partly against the defendants there will be no order as to costs either in the plaintiff's favour or in favour of the defendants either here or in the Court below. The appeal fails and is dismissed; parties to bear their own costs throughout.