P.V. Rajamannar, C.J.
1. The only question which falls for decision in this appeal is whether a particular bequest by one J.P.N. D'Souza in his will dated 14th April, 1936, offends the provisions of Section 118 of the Indian Succession Act and is, therefore, void, and consequentially there is intestacy in respect of the property covered by the said bequest. The testator died on 4th August, 1944.
2. The material provision in the will runs as follows:
Clause 2. - 'That I bequeath these immoveable properties to the Lord Bishop of Mangalore who will collect the rent of the same from the tenants and after paying land assessment he will utilise the balance income in saying low masses for the repose of the souls of my father, mother and myself.
Clause 11 of the will has also some relevancy, it is as follows:
That as I am the God-father of my sister Mrs. Bertile Rego, my nephew Louis D'Souza, son of Mrs. Piad Mary D'Souza, and my nieces Grace Noronha, daughter of Mrs. Stella Noronha and Emma Gasteline, daughter of Mrs. Prescilla Jane Casteline, I desire that out of the income of my immovable properties a sum of Rs. 500 (rupees five hundred) shall be paid by the Lord Bishop of Mangalore to Mrs. Bertile Rego at the rate of Rs. 50 a year for a period often years as also a sum of Rs. 50 each to Louis D'Souza, Grace Noronha and Emma Castelino at the time of their marriage or at the time of becoming a priest or nun or at the time of embracing religious vocation.
Section 118 of the Indian Succession Act runs thus:
No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the will of living persons.
The will was certainly executed more than twelve months before the death of the testator but it was not deposited in any place provided by law for the safe custody of wills. It therefore follows that if the bequest contained in Clause 2 quoted above is a bequest of property to religious or charitable uses, then the bequest would be void.
3. The learned Subordinate Judge of South Kanara held that the bequest was not one to which Section 118 had any application because the bequest was in favour of the Lord Bishop of Mangalore and not in favour of any religious or charitable trust. The first defendant, the widow of the testator, appeals against this decision.
4. No direct authority of any Court of this country has been brought to our notice. But Mr. K. Krishnaswami Ayyangar, learned Counsel for the appellant, has cited to us decisions of other Courts which certainly have a bearing on the question in issue. The decision in O'Hanlon v. Logue I.L.R. (1906) 247, is directly in point. One Ellen M'Loughlin devised and bequeathed all her property to certain executors and trustees, inter alia, to pay the income from certain properties belonging to her from time to time to the Roman Catholic Primate of all Ireland for the time being, to be applied for the celebration of Masses for the repose of the souls of her late husband, her children and herself. It was held that the bequest was a good charitable bequest and therefore was saved from the rule against perpetuity. Though the bequest was for Masses for the individual souls of the testatrix and her relations, it was held to be charitable because, according to the doctrines of the Roman Catholic church, a Mass was primarily to public rite and its efficacy was not confined to the particular souls for whom it may be primarily intended but that such Masses would be for the benefit of the entire Roman Catholic community. Fitz Gibbon L.J., went to the extent of saying that a gift of money for Masses as a means of securing a private and exclusive benefit for the testator or his relations only would amount almost to blasphemy. This decision was followed by Luxmore, J., in Gaus, In re Lindeboom v. Camille L.R. (1934) 1 Ch. 162. There a Roman Catholic testator by his well bequeathed 1,000 for Masses foundation and others, and also four houses for one foundation Mass to be said for his soul and the souls of his parents and relatives during the space of twenty five years. It was held that the gift was charitable as being for the advancement of religion, because it enables a ritual act to be performed which is the central act of the religion of a large proportion of Christian people of Roman Catholic persuasion and also because it assists in the endowment of priests whose duty it is to perform the act. The learned Judge quoted with approval from the Irish decision above referred to, particularly the observations of the Lord Chancellor who said:
Such is the evidence as to the exact nature of the Mass, both generally, and where a commemoration of named dead is included. It is settled by authority which binds us that where there is a direction to celebrate the Mass in public, the gift is a valid charitable one; but what makes it charitable is the performance of an act of the Church of the most solemn kind, which results in benefit to the whole body of the faithful.
It was pointed out by the learned Judge that every Mass is offered to God in the name of the church to propitiate His anger, to return thanks for His benefits, and to bring down His blessings upon the whole world and that it was impossible, according to the doctrine of the church, that a Mass can be offered for the benefit of one or more individuals living or dead to the exclusion of the general objects, included by the church.
5. Mr. Thiagarajan, learned Counsel for the contesting respondent, the Lord Bishop of Mangalore, drew our attention to observations of Lord Simonds in the case of Gilmour v. Coats L.R. (1949) A.C. 426. At page 447 the noble Lord said:
A consideration of the Irish cases shows that it has there been decided that a bequest for the saying of Masses whether in public or in private is a good charitable bequest.... And in In re Caus (1934) LR1 Ch. 162, Luxmore, J., came to the same conclusion. I would expressly reserve my opinion on the question whether these decisions should be sustained in this House. So important a matter should not be decided except upon a direct consideration of it. It is possible that, particularly in regard to the celebration of Masses in public, good reason may be found for supporting a gift for such an object as both a legal and a charitable purpose. But it follows from what I have said in the earlier part of this opinion that I am unable to accept the view, which at least in the Irish cases is clearly expressed, that in intercessory prayer, and edification that public benefit which is the condition of egal charity is to be found.
The noble Lord, however, did not even suggest that the decision of Luxmore, J., was wrong. On the other hand the ratio decidendi of the decision in In re Caus L.R. (1934) 1 Ch. 162, was once more enunciated by Lord Simonds thus:
A gift for the saying of Masses enables a ritual act to be performed which is recognized by a. large proportion of Christian people to be the central act of their religion and secondly that it assists in the endowment of riests whose duty it is to perform the ritual act.
We have perused the speeches of the other noble Lords who took part in this case but we are not convinced that the decision in O'Hanlon v. Logue (1906) 1 I.R. 247, was doubted in so far as it applied to a bequest for the purpose of saying Masses for the souls of the testator and his relations.
6. In the absence of any authority to the contrary, we think we ought to follow the rulings in O'Hanlon v. Logue (1906) 1 I.R. 247, and in In re Caus L.R. (1934) 1 Ch. 162, and hold that the bequest in question was a bequest for charitable uses, if not for religious and charitable uses. The bequest was therefore void as the will was not deposited in any place provided by law for safe custody.
7. In Clause 11 no doubt there is a direction by the testator that the Bishop of Mangalore should out of the income of the immovable properties bequeathed to him pay a sum of Rs. 50 per year to one Mrs. Bertile Rego and also a sum of Rs. 50 each to three persons at the time of their marriage or at the time of becoming a priest or nun or at the time of embracing religious vocation. It is arguable that this direction to pay over these sums of money to private persons does not offend Section 118 of the Indian Succession Act. But that question does not directly arise in this appeal. That direction by itself certainly cannot validate the bequest in its entirety.
8. We may also mention that a similar bequest in Clause 8 of the will to the St. Francis Xavier's Church, Bijey, Mangalore, for saying low Masses for the repose of the sole testator's brother was held by the learned Subordinate Judge to be struck by the provisions of Section 118 of the Indian Succession Act. On principle we are unable to see any difference between that bequest and the bequest in question in this appeal.
9. On our above finding this appeal must be allowed and the decision of the learned Subordinate Judge set aside so far as the bequest to the Lord Bishop of Mangalore is concerned.
10. It is impossible to leave this case without expressing our regret that the clear wish and intention of the testator cannot by virtue of our decision be carried into effect. We hope that the appellant and other relations will see that the last wishes of the testator are not completely disregarded simply because we have decided the question of the validity of the bequest according to law.
11. In the result the appeal is allowed. The costs of both parties will come out of the estate.