Case: Laxman Balwant Bhopatkar ( Since Deceased ) By Anothe Vs. The Charity Commissioner, Bombay

laws to change them at their pleasure, when circumstances may seem to require. With the wisdom of the proposed change the courts are not concerned. We perform our duty in determining whether or not the method adopted to make the change violates established law. In the present case we find no apparent intent to violate any law. On the contrary, the trust specifically requires its objects to be accomplished by lawful means."Now, let me consider some of the provisions of the Act which are in direct conflict with some of the tests laid down by the English decisions to ascertain whether a purpose is charitable or not. The first is S. 9(4) which says that a charitable purpose includes the advancement of any other object of general public utility. I have already jointed out the wide amplitude of these words. Section 11 says:"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 to the charitable or religious purpose, only on the ground that it is void with respect to the non-charitable or non-religious purpose."While in England if a trust was created for a charitable or a non-charitable purpose, the entire trust would be void, as the trustees could administer the trust exclusively for the benefit of non-charitable purposes, under S. 11 of the Act the law is changed in regard to that matter. Section 55 introduces a cy pres doctrine which is wider in scope than the doctrine is generally understood in that it enables the court, inter alia, under certain circumstances, if it is not in public interest, expedient, practicable, desirable, necessary or proper to carry out wholly or partially the original intention of the author of the public trust or the object for which the public trust was created, to apply the same to any other object. The Act widens the scope of a charitable purpose as understood in the English law, recognizes the validity of the trust though the purposes include both charitable and non-charitable, and enables the court, under certain circumstances, to divert the trust to other charitable purposes not intended by the author of the trust. The liberal spirit adopted by the Act does not permit a narrow interpretation of a charitable purpose accepted by the English courts under different circumstances.51. Let me now summarize my views on the subject : (1) The English decisions are based upon a pragmatic approach to the problems that arose before them, having regard to the historical development of the law of charities in that country; there is no common thread discernible in the large volume of English decisions. (2)Under the Act, unlike in England, the advancement of the object of common public utility is declared to be a charitable purpose, and it is not permissible to curtail its scope with reference to English decisions. (3) The expression "object of general public utility" is very comprehensive and it includes all purposes, whether political or otherwise, provided it is an object of general public utility.52. The English decisions, therefore, afford no help to construe S. 9 of the Act to ascertain whether a purpose is charitable or not under the Indian law.53. For the reasons I have given, I hold, without any hesitation that the purpose of the trust in the present case is a charitable purpose within the meaning of S. 9 of the Act.54. Even on that basis it is contended that a trust giving power to a trustee to spend the trust funds on charitable and non-charitable objects is void and as the High Court held that the second object of the trust was non-charitable the entire trust must fail. This argument ignores the distinction between a trust deed empowering a trustee to spend on a charitable object or a non-charitable object and a trust deed empowering him to spend on a charitable object and a non-charitable object. In Halsburys Laws of England, 3rd Edn. Vol. 4, at p. 272, the following passage appears:"When a testator gives funds to be applied partly for objects which are charitable and partly for objects which either are not charitable or fail, but does not specify the proportions in which the funds are to be applied for the different objects the Court will make an apportionment.""Again, where a fund is given for several objects, some charitable and some non-charitable or illegal, there being a clear intention to devote some part to the charitable objects, if it can be ascertained what are the proper proportions to be attributed to the several objects, the Court directs an inquiry, but if from the nature of the gift it appears impracticable to fix the proportions, the Court divides the fund equally between the different objects."This passage is supported by decisions relied upon by he author. It is not necessary to discuss them in detail, as the learned counsel for the appellant has not questioned the correctness of the said proposition. In this view, it is not necessary to consider whether S. 11 of the Act has retrospective operation. Learned counsel for the appellant attempted to argue that S. 55 of the Act offends his right of reversion to the property which is the subject-matter of the trust. The question of the validity of the said section does not arise in the present case. The only question is whether it is the duty of the trustees of the trust to make an application for registration of the said trust. As I have held that the trust is a public trust within the meaning of S. 9 of the Act, under S. 18 thereof, the said trust has to be registered in the manner prescribed therein. Questions such as the extent of the trust, the scope of the doctrine of cy pres, are all foreign to the present inquiry. I do not propose to express any opinion on the same.55. In the result, the appeal fails and is dismissed with costs.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Analysing the provisions of the clause it would be seen that the prime object of the trust was the fulfilment of the basic purpose which animated the activities of the late Lokmanya and which he sought to accomplish through the two news-papers - Kesari and Mahratta after he took charge of them. This has to he read with the provision of the will directing the continuance of the two newspapers with their policy entirely unchanged. As if in explanation or exemplification of this prime purpose we have the statement that the object the Lokmanya sought to achieve through the two newspapers was that of spreading political education and thereby making the people alive to their political rights and carrying out other multifarious public activities conducive to the national ideal.9. Pausing here, it is necessary to mention that though the object of the trust was thus intimately bound up with the policy and purpose of the Kesari and Mahratta after the Lokmanya took charge of them, no evidence was led at any stage by either party as to what precisely was the policy or the object of the two newspapers which was sought to be achieved by the Lokmanya through them. Nor was evidence placed before the Court of the precise aims and objects which the Lokmanya inculcated by his teachings through these newspapers. It was possibly assumed that the life and ideals for which the Lokmanya stood, and in particular the matters which he considered as the prime purpose and policy of these two newspapers with which he was connected for over two decades, were matters of history so well-known to the Courts and authorities in Maharashtra and therefore on which no formal evidence was required to be adduced. We would, however, add that such evidence on the record would have lightened our task and that it is with this handicap that the point in controversy in the appeal has to be decided.We consider that there is considerable force in the submission of learned Counsel that the trust has been founded with a view to achieve a single objective or purpose, viz., "the fulfilment perpetually and uninterruptedly" of "the object with which the late Lokmanya took up all activities after he took charge of the newspapers Kesari and Mahratta." It might be that the activities for which the newspapers were utilised after he took charge of them disclosed more than purpose, but the common link between every such line of activity was that it stemmed from a political purpose, for the newspapers were made to serve as the vehicle for achieving his objectives. The question, therefore, as to the purpose of the trust would have to be resolved by examining the various activities in which he himself engaged and the object with which he engaged in them, but the latter is not the basis upon which the High Court has proceeded in reaching a finding that the trust-deed disclosed a duality of purpose one of which the learned Judges recognised was not charitable but the other was held to be so. The words in the second limb of the first clause referring to "the spreading of political education through the newspapers and thereby making people alive to their political rights" and secondly "the carrying on other multifarious public activities conducive to the national ideal" were really meant as illustrations of the activities undertaken by the late Lokmanya during his life-time as is manifest by the use of the words "such as" before the clause, if the object with which the Lokmanya took up his activities after he assumed charge of the newspapers was dominated by a political purpose and the newspapers were used by him to achieve that objective, the illustrations of his activities set out in the clause must be similarlyWe have earlier drawn attention to the feature that no evidence was placed before the authorities under the Act or before the Courts as to the object which the Lokmanya sought to achieve by the two newspapers. Learned Counsel for the appellant invited our attention to the reported decision of the Bombay High Court where certain writings and articles of the late Lokmanya came up for consideration, and in particular to the articles which formed the subject-matter of the charges against the Lokmanya in prosecutions for sedition. But if one were confined to these, they must obviously give us only a partial and truncated idea of his activities and so are apt to afford but a distorted picture of the objects with which the two newspapers were conducted. We, therefore, examined the literature bearing on the life and work of this great leader and particularly two recent books on the topic "Bala Gangadhar Tilak by Parvate (1958) which was brought to our attention by Mr. Sanyal appearing for the respondent, and Lokmanya Tilak by Dhananjay Keer (September, 1959)". In doing so we have confined ourselves to the facts there stated, and have refrained from taking into account the evaluation by the authors of Tilaks activities or their comments on any particular views on public or social matters entertained by the subject of their biography.17. As a result of this examination we gather the following facts which are of relevance to the point before us. Tilak, though he was associated with the two newspapers from their start in or about 1881, took over the editorship of the Kesari in 1887 and became the sole-proprietor of both the papers by 1893 and was in charge of their conduct till his death in 1920. Tilak was a public figure who dominated the political firmament of the country for near three decades. He was a rebel against political wrongs. He was a champion of all who were oppressed and conceived it as his sacred mission to rouse the people to a sense of their wrongs and of their strength in winning their salvation, for it was his firm conviction that petty tyranny by the foreign bureaucracy was possible because of the ignorance of the people and their apathy to their condition. His ideas might be gleaned from his observation that people must fight for the vindication of their rights and that those who were unmoved at the sight of injustice and the high-handed policy of the Government, should not be regarded as human beings. The two newspapers were intended by Tilak to be the mechanism by which the wrongs done to the people should be brought home to them and their conscience roused to a sense of the injustices and oppressions to which they were subjected. In undertaking the responsibility of running the Kesari and the Mahratta it was a clear indication of his resolve to throw himself completely into public life and to devote himself to the task of the political education of the masses. He wrote in the Kesari about every public grievance and every public cause and this made him the champion of popular causes and a mass leader. The two, the Kesari and the Mahratta, were in no sense mere newspapers. They were primarily views-papers vehicles of public opinion and the news they contained were carefully selected to be helpful to the views propagated in them. Tilak looked upon Kesari as the chief vehicle for propagating his views as he wanted them to be disseminated as widely as possible. The objective determined its style; it was direct, simple, forthright. The papers championed the cause of the underdog and every where fought against injustice, contained a study of public complaints and grievances, exposed oppressive officers, criticised fearlessly and made constructive suggestions for the reform of the administration and championed the peoples cause in every sense. During Tilaks days Tilak and Kesari became synonymous terms. The Kesari had been the citadel of the national fight and remained impregnable even through repressive campaigns and became a national asset. It was Tilaks confirmed view that the ills of the nation demanded political reforms and not immediate social reforms. Tilak challenged the right of the foreign bureaucracy to sit in legislative judgment on Indian society. It was the view of Tilak that respect must be paid to the prejudices of people and that one must try to make the humblest of them feel that he was one of them. Tilak was convinced of the futility of appeals to people made in the form of speeches and resolutions with their eyes fixed towards Government and realised that the Indian National Congress with which he was closely associated from 1889 would be able to ameliorate the condition of the people if the masses were attracted to it and their power harnessed to the chariot of the Congress. It was the main role in his life to stir up the people against their poverty, degradation and slavery. To foster opposition to British rule, to bring people into conflict with Government, and to make Government unpopular was the great aim of Tilaks speeches, writings, and leadership. The enthusiasm and vigour of the people had to be utilized for keeping up their pride in the achievements of their ancestors and as a means of educating the common people. He sought to rouse the pride of the people in their past heroes so as to unify them into one body to achieve political liberation. His plea was that people should be taught what their rights were and how they could get their grievances redressed. That was the way to increase the influence of the Congress. He taught people to act fearlessly though peacefully and lawfully and get their grievances redressed, for the principle underlying his philosophy was that foreign yoke could be overthrown only when people were awakened and discontented, when it is not possible for a foreign Government to hold them under its way. Without attracting the attention of the people to the unjust state of affairs no political progress was possible, nor reform in the administration. From about 1903 Tilak was gradually shifting to what the Moderates used to call Extremism, smouldering as be was at the apathy shown by the Moderate leaders towards active politics. The Congress which gave occasion for orators brandishing polished phrases and ended with prayers and petitions had grown sterile. He was coming to realise that politics must cease to be the pastime of the old orators and title-holders. Though he felt that the record of the Congress left no room for disappointment or despair, its triumph lay in awakening the soul of the nation. The Moderates accepted British rule as a divine dispensation but the militant nationalists led by Tilak refused to believe in the doctrine of divine dispensation. After the partition of Bengal in 1905 and the agitation which followed it. Tilak wrote articles discussing the policy of boycott of foreign goods, and particularly of foreign cloth, and he considered that a boycott on a national scale was the proper remedy, but its results depended upon actions and not upon words. Tilak was then the spearhead of the Swadeshi movement, but even here it was fired and inspired by a political purpose, for he saidthe Indian Government dissociates itself from the commercial aspirations of the British Nation, then it will be time for Swadeshi workers to consider the question of dissociating their movement from politics. But so long as politics and commerce are blended together in the policy of the Government of India, it will be a blunder to dissociate Swadeshi movement fromin the Kesari he declared that if it was unavoidable to use a foreign article, they should give preference to articles produced in Asiatic countries and the next preference should be given to other European countries and America.18. It was Tilak who made it the mission of his life to arouse the people against political slavery, and foreign rule. He resolved to organise the people under the banner of the Congress and to make it the real spokesman of the people. The two newspapers served as the vehicle through which he aimed to achieve these objects. Possibly nothing brings out more forcibly the purpose and aim of the Lokmanya which animated his conduct of the newspapers than a self-appraisal which is extracted in the biography by Parvate already referred to.19. A controversy arose in 1919 about Tilaks neglect of or apathy to social reform and his exclusive attention to political progress and there was an attack by Dr. Paranjpye on this aspect of the matter in an article in the Bombay Chronicle reviewing Tilaks sins of omission and commission. Tilak published a rejoinder in which he reviewed his whole career. In the course of this letter Tilak said, "My views on political and social matters are well-known to the public. The charge against me is that my activity and propaganda are onesided. I do not hold that social reconstruction must be undertaken prior to political emancipation. I attach greater importance to the latter." Speaking of the Kesari he said, It is true that I made it an organ exclusively of political propaganda. I do not deny it, but at the same time let me point out that the political awakening in Maharashtra since then is more the work of this paper and my party than Mr. Paranjpye and the men of his ilk."20. Before concluding this part of the case it is necessary to refer to an aspect of the matter arising out of our summary of the Lokmanyas activities which he pursued through the two newspapers. It would be seen that he was wholly concerned with achieving the intimate association of the people and their-representatives in the administration and governance of the country, and if possible, the entire elimination of foreign rule altogether, and the two newspapers were utilised for educating and rousing people to achieve these. What Tilaks policy or activities would have been after complete independence had been achieved and the policy which he would have the papers pursue subsequently is an interesting question, but one which we consider not relevant for the determination of the question before us. What we are concerned with is as regards the object which Tilak sought to achieve by conducting these newspapers, and to perpetuate which the trust was founded. .21. The survey, though very inadequate, of the public life and activity of the Lokmanya in particular relationship with the two newspapers undoubtedly shows that his purpose in taking over and conducting the newspapers was clearly political, in the sense of seeking to achieve by means of rousing the consciousness of the people to their condition, a political awareness, by which adjustments of a political character would be demanded and enforced by the persons who imbibed those truths or were influenced by suchwas some debate before us as to the import of the expression "charitable" and arguments were addressed in particular as to the exact point of difference between the concept charity under the English Law and that under the Indian Law. No doubt, as pointed out by Lord Wright inChichester Diocesan Fund and Board of Finance (Incorporated) v. Simpsons 1944 AC 341   at p.353 the term "charity" has not, in England, always had a precise connotation. What constituted a charitable purpose has there been derived from the preamble of the Act 43 Elizabeth I Ch. IV (1601) which was taken to signify those purposes which would be held to be charitable. It is not necessary for us to set out the objects enumerated in that preamble but it was always considered that that list was not exhaustive though to decide whether a purpose was in law charitable or not, it has been the practice of the English Courts to refer to that preamble. In these decisions besides the object, there enumerated, others which by analogy were deemed to be "within the spirit and intendment of that statute" have been held to be charitable in the legal sense. Ever since ,however, the judgment of Lord Macnaghten in Commissionersfor Special Purposes of Income Tax v. Pemsel, 1891 AC531 the expression "charitable purpose" has been understood to comprise four main heads : (1) relief of poverty, (2) advancement of education and learning, (3) advancement of religion, and (4) other purposes beneficial to the community or the advancement of objects of general public utility. As regards the last clause, Lord Macnaghten expressed the view that under English law there might be some purposes of general utility which might be charitable and some which might not be, the true test being whether the particular purpose was within the spirit and intention of the statute of Elizabeth. Whether the concept of charity under Indian law is or is not wider than what Lord Macnaghten considered to be the scope of charitable purpose in England does not really arise for consideration in the case before us for we are bound by the terms of S. 9 of the Act which has defined the several categories into which a charity mightof a political objective, is not a charitable purpose, i.e., not one for the advancement of an object of general public utility correctly interpret the Indian statute and the law in India. Whatever differences there might be between the definition of "charity" and "charitable purpose" in the English and Indian law, we consider that there is none so far as regards "political purposes in the sense in which we have indicated earlier. In this context, it is significant that 1944 AC 341, in which Lord Wright speaking in the House of Lords expounded the uncertainties of the English law as to the meaning of "charity" and the appeal of the All India Spinners Association, 71 Ind App 159: (AIR 1944 PC 88  ) before the Judicial Committee were heard at about the same time, and in consequence the view of Lord Wright expressed in the latter decision that a political purpose is not an object of general public utility even on the wider language of the Indian statute reinforces our conclusion on the point. Even though the concept of charity under the Indian Law might be wider than as understood in England, particularly under the residuary head "advancement of an object of general utility," we consider that it would not include a "political purpose" in the sense indicated already.We are clearly of the opinion that a "political purpose" is not a charitable purpose as being one "for the advancement of any other object of general public utility" within S. 9(4) of the Act.33. To summarise the positionThe object for which "The Kesari and Mahratta Trust" was established was the achievement of a single purpose, viz., to continue in perpetuity the activities for the fulfillment of which Lokmanya Tilak took up the two newspapers.(2)The specification in cl. 1 of the Trust deed that these activities were directed to the spreading of political education through the newspapers and thereby making people alive to their political rights" was intended to describe the object of the Lokmanya in taking up the newspapers and correctly described the same, as seen from the public life and activities of Tilak, particularly in the matter of his conduct of the two newspapers.(3) The two newspapers were designed by the Lokmanya to be the vehicle for educating the mass of the population to a sense of the grievances suffered by them under foreign rulers, with a view to rouse them to political action and demand a share in Government. He was a full-time politician. At a time when Indian men of learning were eulogising British rule and the masses were inert and lethargic and oblivious to their degradation, Lokmanya, by his propaganda and leadership sought to infuse into the minds of the masses self-respect and courage. By his writings in these papers, Tilak demonstrated to the people that the foreign rule rested on no moral foundation and when he made people realise this, the achievement of freedom became assured. That is why Tilak has been aptly termed the father of Indias freedom struggle.(4)The life mission of Lokmanya which he sought to achieve and achieved through the two newspapers, and which is set out in the trust-deed as the object for which the trust was founded was, therefore, a political purpose.(5) A political purpose is not charitable under S. 9 of the Act and hence, the Trust was not required to be registered under S. 18 of the Act, and the order of the Assistant Charity Commissioner confirmed by the Charity Commissioner, directing the Trust to be registered was erroneous and should have been set aside by the District Court of Poona in Miscellaneous Application No. 325 ofwas a great savant. He lived and worked when India was a servile country. He had a great vision and that was India as a united, strong, prosperous, civilized and democratic country. He was not a person embroiled in party-politics, trying to build up a political career for himself. He lived, worked and died for a national cause. His activities and ideals were mostly, though not wholly, reflected in the two newspapers. "The Kesari" and "The Mahratta", two leading newspapers of the day which propagated his views not only throughout the Marathi speaking part of the country but also in other parts thereof. Through his papers, he gave information on various subjects, literary, political, social, moral, economic, etc. His papers created an atmosphere for constructive work in that part of the country and elsewhere, and supported many movements calculated to improve the conditions of the people. Subjects as varied as famine relief, prostitution, swadesi, plague relief, Bengal partition, Home-rule movement, national integration, and such other political and social movements, found powerful expression in the said newspapers. In short, his papers pleaded for the social, political, cultural and economic regeneration of the country. They were not confined to the narrow ideal of just replacing the foreign government by a national one, though it was an important step in the regeneration of the country.42. Can the objects of this great man, reflected, propagated and pursued by the said papers, be characterised as those not in the general public interest? To say that the object of a trust for a village school, hospital or choultry is one of general public utility and to deny that character to a trust created for pursuing the objects of Tilak, that is, the regeneration of the country, is to make a mockery of the section. What trust could be more in the interest of the public than that created to educate them in their political rights so that they could know their rights, understand and appreciate the problems of their country, and contribute their mite to its progress and prosperity.?43. It is said that Tilak was a leader of only one of the parties and his activities were analogous to those of a leader of a political party in England. It is true that in the days of Tilak there were also patriotic gentlemen who preferred to achieve independence by a circuitous and slow path and there were alsowho built up their career on the sacrifices of their fellow citizens. But then there were no political parties in the sense they are in England and are now in India. Tilak was not an ordinary politician indulging in party politics to build up his career. His lifetime was spent in educating the people with a view to realise his vision. To class him as a party politician with a view to import the English law in the construction of the trust deed is, to say the least, to ignore the facts of history and to belittle the great contribution made by Tilak in the countrys cause. His work must be evaluated not on party but on a national level. It is, therefore, clear that the object of Tilak, after he took over the newspapers, was to work for the regeneration of the country, and he thought, and rightly too, that national education through newspapers and thereby making people alive to their political rights was the most important item in the uplift of the country. The trust execute to perpetuate the said object is clearly a trust for general public utility within the meaning of S. 9 (4) of the Act.44. But it is said that the objects are not of public utility, because some of the English Judges-for whom I have the greatest respect-said that political purposes are not charitable purposes. Ordinarily I would have been inclined to drop any reference to English decisions had it not been for the copious citations at the Bar. I would, therefore, briefly notice the decisions cited at the Bar defining "charitable purposes" under the English law on the basis of which an attempt is made to curtail or circumscribe the scope of cl. (4) of S. 9 of the Act. In this connection it is necessary to bear in mind the caution administered by the decisions of highest authority when similar attempts were made to import English law in he matter of construction of Indian statutes.