Laxman Balwant Bhopatkar v. Charity Commissioner

Supreme Court of India
Supreme Court of India
Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
Equivalent citations: 1962 AIR 1589, 1963 SCR (2) 625
Author: Ayyangar
Bench: Ayyangar, N Rajagopala
PETITIONER:
LAXMAN BALWANT BHOPATKAR ( Since deceased ) By ANOTHER
Vs.
RESPONDENT:
THE CHARITY COMMISSIONER, BOMBAY
DATE OF JUDGMENT:
01/05/1962
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.(CJ)
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION:
1962 AIR 1589 1963 SCR (2) 625
CITATOR INFO :
R 1965 SC1281 (290)
ACT:
Public Trust-Charitable purpose-Education to mak people conscious of political rights-Political
purpose–Object of general public utility-Bombay Public Trusts Act, 1950 (Bom. 29 of 1950), ss 2 (13), 9(4).
HEADNOTE: Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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Lokamanya Tilak died on August 1, 1920, leaving a will. On August 16, 1920, his two sons and the executor
appointed by him under the will executed a trust deed in respect of two newspapers “The Kesari” and “The
Maharatta”, and the property and the machinery pertaining thereto. Clause 1 of the trust deed recited: “This
Trust deed has been made as a means to the fulfillment perpetually and uninterruptedly. after the death of the
late Lokmanya Bal Gangadhar Tilak of that very object of his with which he took all activities after he took
charge of the newspapers-the Kesari and Maratha such as of spreading political education through the
newspapers and thereby making people alive to their political rights and carrying on other multifarious public
activities conducive to the national ideal etc.” A survey of the public life and activity of Lokmanya Tilak
showed that his purpose in taking over and conducting the newspapers was 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 such writings. The question was whether the aforesaid trust was a public
charitable trust within the definition in S. 2 (13) read with s. 9 (4) of the Bombay Public Trusts Act, ‘1950, so
as to justify an order by the charity Commissioner requiring the trustees to have the trust
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Held, (Subba Rao, J., Dissenting), that a political purpose is not a charitable purpose and does not come
within the meaning of the expression “for the advancement of any other object of general public utility” in s. 9
(4) of the Bombay Public Trusts Act, 1950.
The life mission of Lokmanya Tilak which he sought to active and achieved through the two newspapers, and
which was set out in the trust deed dated August 16, 1920, as the object for which the trust was founded, was
a political purpose and, therefore, the trust was not required to be registered under s. 18 of the Act.
Per Subba Rao, J.-The, object of Tilak, after he took over the newspapers, was to work for the regeneration of
the country, and he thought that national education through newspapers and writings which would make
people alive to their political rights, was the most important item in the uplift of the country. The trust
executed to perpetuate the said object was clearly a trust for general public utility within the meaning of s. 9
(4) of the Act. The expression “object of general public utility” is very comprehensive and it includes every
purpose, whether political or otherwise, provided it is an object of general public utility. Bonar Law Memorial
Trust v. Commissioners of Inland Revenue, (1938) 17 Tax Cas. 508, Trustees of the Tribune Press, Lohore v
Commissioner of Income Tax, (1939) L. R. 66 I. A. 241, All India Spinners’ Association v. Commissioner of
Income Tax (1944) L. R. 71 1. A. 159, Re Hopkinson: Lloyds Bank Ltd. v. Baker, [1949] 1 All E. R. 346,
Subhas Ohandra Bose v. Gordhandas Patel, I. L. R. [1940] Bom. 254, and In re Lokmanya TilakJubilee
National Trust Fund Bombay, (1941) 43 Bom. L. R. 1027, considered.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 313 of 1958. APPEAl from the judgment and
decree dated February 2, 1956, of the Bombay High Court, in Appeal No. 775 of 1955 from Original Decree.
Veda Vyasa, S. G. Patwardhan and Ganpat Rai for the appellants.
H. N. Sanyal, Additional Solicitor-General of India, N. S. Bindra and R. H. Dhebar, for the respondent and the
State of Maharashta (Intervener).
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1962. May 1. The following Judgments were delivered. The judgment of Sinha, C. J., Rajagopala Ayyangar,
Mudholkar and Venkatarama Aiyar, JJ., was delivered by Rajagopala, Ayyangar, J. Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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RAJAGOPALA AYYANGAR, J.–This is an appeal on a certificate of fitness granted by the High Court of
Bombay under Art. 133 (1) (b) & (c) of the Constitution, and the question raised for consideration is whether
the “Kesari & Mahratta Trust” of which the appellants are the Trustees was or was not a “public Trust” within
the meaning of the Bombay Public Trust Act (Act XXIX of 19-50) which it will be convenient to refer to as
the Act.
The Act which by its long title was enacted “to regulate and to make better provision for the administration of
public, religious and charitable Trusts, in the State of Bombay” came into force on August 14, 1950. Section.
18 of the Act enacted:
“18. (1) It shall be the duty of the trustee of a public trust to which this Act has been applied to make an
application for the registration of- the public
trust. …………………
Section 66 of the Act provides penalties according to a table appended to it for contravention of the several
sections set out in it and among the sections so included is s. 18(1). In this state of affairs the trustees of the
appellant-trust addressed on April 16, 1952, a communication to the Assistant Charity Commissioner, Poona
region, Poona- being the authority empowered to effect the registration of the Trust, if it was a public
Trust-that ,,the Kesari & Mahratta Trust” was not a “‘public Trust” Within the meaning of the Act and
submitted that it was not liable to be, registered thereunder. Section 19 of the Act empowers an Assistant
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Charity Commissioner to make an enquiry for ascertaining, inter alia, “whether a Trust exist and whether such
Trust is a public Trust.” This officer held an enquiry under this provision, giving an opportunity to the trustees
of the Trust to make representations and urge their contentions. Thereafter be recorded a finding under s. 20 of
the Act that it was a public Trust to which the Act applied and passed an order directing the Trust to be
registered. Section 70 of the Act provides for appeals being filed against findings recorded and orders passed
under s. 20 by Assistant Charity Commissioner s, to the Charity Commissioner and the trustees availed
themselves of this remedy and repeated their contentions before the Charity Commissioner. The
appellate-authority however reached the same conclusion as the Assistant Charity Commissioner and
dismissed the appeal. Section 72 of the Act enables a party aggrieved by the decision of the Charity
Commissioner under a. 70 on the question “whether a trust exists and whether such trust is a public trust” to
apply to the Court to set aside the said decision. The trustees moved the Court under this provision but this
application was dismissed by the learned District Judge, Poona. It was from this judgment of the learned
District Judge that the trustees filed an appeal to the High Court of Bombay who also dismissed the appeal but
granted the certificate which has enabled the present appeal to the filed.
It would be seen from the above narrative that the entire question raised by the appeal is concerned with
whether the Kesari & Mahratta Trust was a “Public Trust” within the meaning of the Act so as to justify the
order of the assistant Charity Commissioner requiring the trustees to have the institution registered. Section 2
of the Act 629
which contains definitions defines a public Trust in cl. (13) thus:
“an express or constructive trust for either public, religious or charitable purpose or both………….. to read only
the portion relevant for this appeal. The other material provision is s. 9 of the Act which defines “Charitable
purpose”. The purpose defined include: (1) relief of property or distress,
(2) education, Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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(3) medical relief, and
(4) the advancement of any other object of general public utility but does not include a purpose which relates-
(a) exclusively to sports, or
(b) exclusively to religious teaching or worship.” There are certain other provisions of the Act to which our
attention was drawn during the course of the arguments but as both their construction as well as their
constitutional validity which were the subject of debate before us would arise only if the Trust were a public
charitable Trust within the definition in a. 2(13) read with s. 9, we purpose immediately to proceed to consider
the submissions made by learned Counsel in relation to this crucial point. The Trust in question was created
by a deed dated August 16, 1920 by three persons. The first two authors of the Trust were the sons of
Lokmanya Bal Gangadhar Tilak who had died on August 1, 1920, leaving a will executed on April 5, 1918, to
the terms of which we shall refer presently. The third executant was the executor
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appointed by the deceased under his said will. The Trust deed in its preamble refers to the execution of the
will and after reciting the fact that the will was agreed to in all respect by the three exeoutants proceeds to
state that the Trust deed in regard to the Kesari Printing Press Newspapers etc. was being executed in order
that the objects recited in the will may be fulfilled. The Trust deed contains 13 clauses but of these those
relevant for the consideration of the matters arising in the appeal are only two and they are cls. 1 and 8.
Clauses 1 specifies the objects of the Trust, while el. 8 makes provision for contingencies arising from the
trustees becoming incapable of discharging their duties as well as from the institution ceasing to exist. It
reads: “In the event of any_ of the said Trustees becoming incapable of discharging the duties of the Trust for
any reason whatsoever, such person as in the opinion of both the trustees, may be fit to discharge the duty in
accordance with the wishes of the Lokamanya Tilak shall be appointed as a trustee for the prep etuation of this
institution and Trust. If perchance, there is only one Trustee left for making this appointment, he shall appoint
a Trustee following the above policy. And all the rights of the Trustee of the said insti- tution under this Trust
deed, shall vest in the Trustee so appointed. If for any reason whatever, new Trustees are not appointed or
none of the prior Trustees survives, the pan- chas mentioned (under appointment of New Trustees by the
Panchas) in clause 8, under the heading of ‘the Printing Press’ in the Will of the Lokamanya Tilak or the
Panohas appointed in their own place by such Panchas shall appoint the new Trustees. But if such
appointment of New Trustee is not made in 631
the manner stated above, the Trust Estate shall revert to Nos. 1 and 2 of us or to their heirs, ‘Primarily’ in the
capacity of Trustees as such. If for any reason this institution ceases functioning, for the time being but if it is
possible to revive that institution, such Trustees who may be present and fit to carry on the institution under
this Trust-deed. However, if this institution, ceases to exist, for any reason whatsoever, and it is thought that it
is not possible to revive it at any time later on, the trust property shall be of the ownership of Nos. 1 and 2 of
us or their heirs. The trustees of the institution individually, or their heirs shall have no private (personal) right
whatever to this property.”
It is only necessary to add that learned Counsel for the appellant-Trustees assured us that the appellants had no
intention at all of abandoning the objects of the’ Trust or ceasing to be bound by the terms of the Trust deed
even in the event of our holding that the Trust was not a public charitable trust, but that cherishing as they did
the memory of Lokmanya Tilak they would carry on the mission entrusted to them by the great leader for
ever. As almost the entire argument in the appeal before us as well as the decision against the appellants in the
Courts below have rested wholly on the interpretation and legal effect of the provisions contained in el. 1 it is
necessary to set this out in full. The Trust deed is in Marathi and the following is its English translation
accepted by both parties : “This Trust deed has been made as a means to the fulfilment perpetually and
uninterruptedly after the death of the late Lokmanya Bal Gangadhar Tilak of that very object of his with
which he took all activities after be took charge of the newspapers-the Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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Kesari and Maratha such as of spreading political education through the newspapers and thereby making
people alive to their political rights and carrying on other multifarious public activities conducive to the
national ideal etc.”
Pausing here, is it necessary to mention that the translation as it appears in the Paper Book reads “,such as
spreading national education through those newspapers etc.” It was however agreed that the adjective
“national” was not a correct rendering of the Marathi expression “‘Rajakia” which was more accurately
denoted by the word “political” and we therefore proceed on the translation which was accepted before us by
both the parties.
It will be seen from the preamble and cl. 1 that the Trust was brought into existence or the purpose of
fulfilling the last wishes of the Lokmanya as expressed in his will dated April 5, 1918., The terms of the will
have therefore relevance for understanding the object sought to be achieved by the Trust. The will was made
in Colorado on April 5, 1918. Most of the dispositions of the will are taken up with legacies to his sons but the
disposition we are now concerned with occurs in cls. 3 and 4 of the will and we shall read the relevant
portions of those clauses. Clause 3 (1) which is headed “The Printing Press” reads: “I have made a public trust
of the newspapers, the office, the printing press, the machine and the foundry, the newspaper library and
security-money in respect of newspapers”
This, however, was not accurate; for though evidently the Lokmanya had intended to create a trust, no formal
deed therefor had been executed and it was this deficiency that was supplied by
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his sons and the executor appointed under the will. Clause 4 of the will is of relevance and it ran: “The policy
of the papers (editorial policy) shall be kept as it is, Under no circumstances shall it be changed.”
The other provisions of the will do not bear upon the points arising in this appeal.
The question now for our consideration is whether under cl. 1 of the deed of trust a public charitable trust has
been created. Analysing the provision of the clause it would be seen that the prime object of the trust was the
fulfilment of the basic purpose which animated the activities of the late Lokmanya and which he sought to
accomplish through the two newspapers-Kesari and Mahratha after he took charge of them. This has to be
read with the provision of the will directing the continuance of the two newspapers with their policy entirely
unchanged. As if in explanation or exemplification of this prime purpose we have the statement that the object
the Lokmanya sought to achieve through the two newspapers was that of ,spreading political education and
thereby making the people alive to their political rights and carrying out other multifarious public activities
conducive to the national ideal.
Pausing here, it is necessary to mention that though the object of the trust was thus intimately bound up with
the policy and purpose of the Kesari and Mahratha after the Lokmanya took charge of them, no evidence was
led at any stage by either party as to what precisely was the policy or the object of the two newspapers which
was sought to be achieved by the Lokmanya through them. Nor was evidence placed before the Court of the
precise aims and objects which the Lokmanya incalcuted by to teachings through these nows-
634
papers. It was, possibly assumed that the life and ideals for which the Lokmanya stood, and in particular the
matters which he considered as the prime purpose and policy of these two newspapers with which he, was
connected for over two decades, were matters of history so well-known to the Courts and authorities in Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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Maharashtra and therefore on which no formal evidence was required to be adduced. We would however, add
that such evidence on the record would have lightened our task and that it is with this handicap that the point
in controversy in the appeal has to be decided. This might be the convenient stage at which reference could be
made to a previous occasion when the interpretation of the trust-deed with particular reference to the question
of its character as a public charitable trust came up for consideration before the Courts. Section 4 (3) of the
Indian Income tax Act, 192 2 exempts from income tax “any income derived from property held under a trust
or other legal obligation wholly for religious or charitable purposes in so far as such income-is applied or is
accumulated for application to such religious or charitable purpose The section carried a definition of
“charitable purpose” which was stated to include “relief of the poor, education, medical relief and the
advancement of any other object of general public utility” which, it would be seen, is in terms the same as the
definition of a “charitable purpose” under the Act. The claim of “the Kesari and Mahratha Trust” to exemption
under this provision came up for consideration before the High Court of Bombay on a reference under s. 66
(2) of the Indian Income-tax Act. The reference was heard by Beaumont, C. J., and Rangnekar, J., and the
learned Chief Justice delivering the judgment of the Court said: “To my mind the trust which is contained in
cl. I of the deed is too vague and wide to 635
be regarded as a charitable trust within the meaning of the Income-tax Act. Some of the purposes, no doubt,
are charitable but others are not and the whole of the funds may be applied to non-charitable purposes. The
purposes include organising public movements and even if you limit those general words by the words
‘calculated to promote the national ideal, it seems to me impossible to say that the promotion of public
movements calculated in the view of the trustees to promote the national ideal can be regarded as necessarily
of public utility.”
The learned Judges therefore held that the trust was not entitled to exemption under s. 4(3) of the Income-tax
Act . Learned Counsel fortheappellant did not contend before us that this judgment was yes judicature in these
proceedings for the decision of the matter now before us, but as expressing the views of the learned Judges on
the construc- tion of the document whose interpretation is the subject of dispute in the present case. With
these observations we shall put aside that decision and proceed to construe the terms of cl. (1) of the deed to
find out how far the object sought to be achieved are within the definition of “charitable purpose” within the
Act.
In doing this, it would be convenient first to set out the construction which found favour with the learned
Judges of the High Court in the judgment now under appeal and then consider the sub. missions made by
learned Counsel on either side. Referring to cl. 1 and the matters to which it refers as needed to be done for
fulfilling the objects of the trust, the learned Judges said that these were : (1) the awakening in the minds of
the people a consciousness of their political rights by spreading the knowledge of politics through the
newspapers”
636
Kesari” and “Mahratha” and (2) organising various public movements calculated to promote the national
ideal. They went on to state that the second purpose could not amount to a charitable purpose under the
Bombay Public Trust Act and observed
“As the nature and character of the public movements which were to be promoted for furthering the national
ideal were not even indicated, much less specified it seems impo- ssible to say that the Organisation of public
movements which in the opinion of the trustees might be calculated to promote the national ideal can be
regarded necessarily as an object of general public utility within the meaning of clause (4) of section 9 of the
Act. Those public movements would obviously not fall under any of the other clauses of section 9 either.
Clearly, therefore, the second of the two purposes mentioned in clause 1 of the trust-deed cannot be
considered a charitable purposes.” Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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They, however, were of the view that the first purpose, viz., of “awakening a consciousness of political rights
among the people by spreading the knowledge of politics through the newspapers” would be a charitable
purpose. In this context they considered that the decisions of the English Courts that the attainment of political
purposes would not be a charitable purpose as advancing an object of general public utility could not be
applied in India, and that even if the same were applicable, that under the Trust- deed before them, the
awakening of political consciousness among the people was not identical with the advancement of political
objects and that the awakening of such conscious- ness need not necessarily be for achieving a political
purpose being out of the way they considered that the awakening, of such consciousness would be 637
an advancement of an object of public utility. Several points were raised by learned Counsel for the appellant
in support of his contention that the trust-deed did not create a charitable trust. His first submission was that
the learned Judges of the High Court were wrong in considering that there were two objects to be subserved
by the trust for the attainment of which the trust was founded, but only a single object and that object was
political in its nature and that consequently it was not a charitable purpose within the meaning of the law. His
next submission was that even if there were two objects as the learned Judges of the High Court had held, they
were not really independent objects but both of them were dominated by a single purpose which was political
in its nature. At the base of bath of these interpretations of the deed lay the submission that the object to be
attained by the trust was political, and if so, it was not charitable. We consider that there is considerable force
in the submission of learned Counsel that the trust has been founded with a view to achieve a single objective
or purpose, viz., “‘the fulfilment perpetually and uninterruptedly” of “the object with which the late Lokmanya
took up all activities after he took charge of the newspapers ‘Kesari’ and ‘Mabratha’.” It might be that the
activities for which the newspapers were utilised after he took charge of them disclosed more than purpose,
but the common link between every such line of activity was that it stemmed from a political purpose, for the
newspapers were made to serve as the vehicle for achieving his objectives. The question therefore as to the
purpose of the trust would have to be resolved by examining the various activities in which he himself
engaged and the object with which he engaged in them, but the latter is not the basis 638
upon which the High Court has proceeded in reaching a finding that the trust-deed disclosed a duality of
purpose one of which the learned Judges recognised was not charitable but the other was held to be so. The
words in the second limb of the first clause referring to “the spreading of political education through the
newspapers and thereby making people &live to their political rights” and secondly “the carrying on other
multifarious public activities conducive to the national ideal” were really meant as illustrations of activities
undertaken by the late Lokmanya during his life-time as is manifest by the use of the words “such as” before
the clause. If the object with which the Lokmanya took up his activities after he assumed charge of the
newspapers was dominated by a political purpose and the newspapers were used by him to achieve that
objective, the illustrations of his activities set out in the clause must be similarly construed. But to this we
shall revert later. This apart, there is one other way in which the matter might be approached. The learned
Judges of the High Court have held that the object signified by the words “carrying on other multifarious
public activities conducive to the national ideal” was much too vague to serve as an object or purpose of an
enforceable trust, for besides the vagueness involved in the description of the activity as “conducive to the
national ideal etc”, there is a further vagueness introduced by the words “other multifarious public activities”.
One mode of testing the validity of this object would be whether one could uphold the deed as constituting a
valid enforceable charitable purpose if it had merely made provision for the trust-fund being utilized for
carrying’ on multifarious public activities conducive to the national ideal etc.” It is obvious that this question
could be answered only in one way and that in, favour of holding that the trust was too vague to
639
be valid. If therefore the last portion of the clause was left out of account, two questions would have to be
considered (1) whether on a proper construction of cl. (1) read with the rest of the deed, the object sought to
be achieved is or is not a single one, and (2) whether the object indicated by the words “spreading of political
education through the newspapers and thereby making people alive to their political rights” would be a Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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charitable purpose within the meaning of s. 9 of the Act ? If the last part of the clause (1) were out, as too
vague.. the object of the Trust would read, to quote the relevant words “the fulfilment perpetually and
uninterruptedly of the very object with which he (the Lokmanya) took up all activities after he took charge of
the newspapers such as spreading political education through- these newspapers and thereby making people
alive to their political rights.” We shall immediately proceed to deal with the import of the words ‘,the very
object with which he took up all activities after he took charge of the newspapers”, but before we do so we
might state that we have no hesitation in holding that the words of the clause we have just extracted indicate
but a single purpose,, viz., the fulfilment of the objects with which Tilak took up all activities after he took
charge of the two newspapers.
We have earlier drawn attention to the feature that no evidence was placed before the authorities under the Act
or before the Courts as to the object which the Lokmanya sought to achieve by the two newspapers Learned
Counsel for the appellant invited our attention to the reported decision of the Bombay High Court where
certain writings and articles of the late Lokmanya came up for consideration, and in particular to the articles
which formed the subject-matter of the charges against the Lokmanya in prosecutions for sedition. But if one
were, confined to the these 640
they must obviously give us only a partial and truncated idea of his activities and so are apt to afford but a
distorted picture of the objects with which the two newspapers were conducted. We therefore examined the
literature bearing on the life and work of this great leader and particularly two recent books on the topic “Bala
Gangadhar Tilak by Parvate (1958) which was brought to our attention by Mr. Sanyal appearing for the
respondent, and Lokmanya Tilak by Dhananjay Keer (September, 1959)”. In doing so we have confined
our,selves to the facts there stated and have refrained from taking into account the evaluation by the authors of
Tilak’s activities or their comments on any particular views on public or social matters entertained by the
subject of their biography. As a result of this examination we gather the following facts which are of
relevance to the point before us. Tilak, though he was associated with the two newspapers from their start in
or about 1881, took over the editorship of the Kesari in 1887 and became the sole proprietor of both the
papers by 1893 and was in charge of I heir conduct till his death in 1920. Tilak was a public figure who
dominated the political firmament of the country for near three decades. He was a rebel against political
wrongs. He was a champion of all who were oppressed and conceived it as his sacred mission to rouse the
people to a sense of their wrongs and of their strength in winning their salvation, for it was his firm conviction
that petty tyranny by the foreign bureaucracy was possible because of the ignorance of the people and, their
apathy to their condition. His ideas might be gleaned from his observation that people must fight for the
vindication of their rights and that those who were unmoved at the sight of injustice and the high handed
policy of the Government, should not be regarded as human beings. The two newspapers were intended by
Tilak 641
to be the mechanism by which the wrongs done to the people should be brought home to them and their
conscience roused to a sense of the injustices and oppressions to which they were subjected. In R.,
undertaking the responsibility of running the Kesari and the Mahratha it was a clear indication of his resolve
to throw himself completely into public life and to devote himself to the task of the political education of the
masses. He wrote in the Kesari about every public grievance and every public cause and this made him the
champion of popular causes and amass leader. The two the Kesari and the Mahratha were in no sense mere
newspapers. They were primarily views-papers, vehicles of public opinion and the news they contained were
carefully selected to be helpful to the views propagated in them Tilak looked upon Kesari as the chief vehicle
for propagating his views as he wanted them to be disseminated as widely as possible. The objective
determined its style; it was direct, simple forthright. The papers championed the cause of the underdog and
everywhere fought against injustice, contained a study of public complaints and grievances, exposed
oppressive officers, criticised fearlessly and made constructive suggestions for the reform of the
administration and championed the peoples cause in every sense. During Tilak’s days Tilak and Kesari
became synonymous terms. The Kesari had been the citadel of the national fight and remained impregnable
even through repressive campaigns and became a national asset. It was Tilak’s confirmed view that the ills of Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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the nation demanded political reforms and not immediate social reforms. Tilak challenged the right of the
foreign bureaucracy to sit in legislative judgment on lndian society. It was the view of Tilak that respect must
be paid to the prejudices of people and that one must try to make the humblest of them feel that he was one of
them. Tilak was convinced
642
of the futility of appeals to people made in the form of speeches and resolutions with their eyes fixed towards
Government and realised that the Indian National Congress with which be was closely associated from 1889
would be able to ameliorate the condition of the people if the masses were attracted to it and their power
harnessed to the chariot of the Congress. It was the main role in his life to stir up the people against their
poverty, degradation and slavery. To foster opposition to British rule, to bring people into conflict with
Government and to make Government unpopular was the great aim of Tilak’s speeches, writings, and
leadership. The enthusiasm and vigour of the people bad to be utilized for keeping up their pride in the
achievements of their ancestors and as a means of educating the common people. He sought to rouse the pride
of the people in their past heroes so as to unify them into one body to achieve political liberation. His plea was
that people should be taught what their rights were and how they could get their grievances redressed. That
was the way to increase the influence of the Congress. He taught people to act fearlessly though peacefully
and lawfully and get their grievances redressed, for the principle underlying his philosophy wag that foreign
yoke could be over thrown only when people were awakened and discontented, when it is not possible for a
foreign Government to hold them under its sway. Without attracting the attention of the people to the unjust
state of affairs no political progress was possible, nor reform in the administration. From about 1903 Tilak
was gradually shifting to what the Moderates used to call Extremism, smouldering as he was at the apathy
shown by the Moderate leaders towards active politics. The Congress which gave occasion for orators
brandishing polished phrases and ended with prayers and petitions had grown sterile. He was coming to
realise that politics must cease to be the pastime of the old orators and
643
title holders. Though he felt that the record of the Congress left no room for disappointment or despair, its
triumph lay in awakening the soul of the nation. The Moderates accepted British rule as a divine dispensation
but the militant nationalists led by Tilak-refused to believe in the doctrine of divine dispensation. After the
partition of Bengal in 1905 and the agitation which followed it Tilak wrote articles discussing the policy of
boycott of foreign, goods, and particularly of foreign cloth, and he considered that a boycott on a national
scale was the proper remedy, but its results depended upon actions and Lot upon words. Tilak was then the
spearhead of the Swadeshi movement, but even here it was fired and inspired by a political purpose, for he
said:
“If the Indian Government dissociates itself from the commercial aspirations of the British, Nation, then it will
be time for Swadeshi workers to consider the question of dissociating their movement from politics. But so
long as politics and commerce are blended together in the policy of the Government of India, it will be a
blender to dissociate Swadeshi movement from politics.” And in the Kesari he declared that if it was
unavoidable to use a foreign article, they should give preference to articles produced in Asiatic countries and
the next preference should be given to other European countries and America.
It was Tilak who made it the mission of his life to arouse the people against political slavery and foreign rule.
He resolved to organise the people under the banner of the Congress and to make it the real spokesman of the
people. The two newspapers served as the vehicle through which he aimed to achieve these objects. Possibly
nothing brings out *ore forcibly the purpose and aim of the
644 Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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Lokmanya which animated his conduct of the newspapers than a self-appraisal which is extracted in the
biography by Parvate already referred to.
A controversy arose in 1919 about Tilak’s neglect of or apathy to social reform and his exclusive attention to
political progress and there was an attack by Dr. Paranjpye on this aspect of the matter in an article in the
Bombay Chronicle reviewing Tilak’s sins of omission and commission. Tilak published a rejoinder in which
he reviewed his whole career. In the course of this letter Tilak said, “My views on political and social matters
are well-known to the public. The charge against me is that my activity and propaganda are one-sided. I do
not hold that social reconstruction must be undertaken prior to political emancipation. I attach greater
importance to the latter.” Speaking of the Kesari he said, “It is true that I made it an organ exclusively of
political propaganda. I do not deny it, but at the same time let me point out that the political awakening in
Maharashtra since then is more the work of this paper and my party than Mr. Paranjpye and the men of his
ilk.”
Before concluding this part of the case it is necessary to refer to an aspect of the matter arising out of our
summary of the Lokmanya’s activities which he pursued through the two newspapers. It would be seen that he
was wholly concerned with achieving the intimate association of the people and their representatives in the
administration and governance of the country, and if possible, the entire elimination of foreign rule altogether,
and the two news- papers were utilised for educating and rousing people to achieve these. What Tilak’s policy
or activities would have been after complete independence had been achieved and the policy which he would
have the papers pursue subsequently is an interesting question, but one which we consider not relevant,
645
for the determination of the question before us. What we are concerned with is as regards the object which
Tilak sought to achieve by conducting these newspapers, and to perpetuate which the trust was founded.
The survey, though very inadequate of the public life and activity of the Lokmanya in particular relationship
with the two newspapers undoubtedly show that his purpose in taking over and conducting the newspapers
was clearly political, in the sense of seeking to achieve by means of rousing the consciousness of the people to
their condition, a political awareness, by which adjustment of a political character would be demanded and
enforced by the persons who imbibed those truths or were influenced by such writings. The next question to
be- considered is whether a political purpose, i.e., for educating people not on theories of political or social
sciences as a subject of academic study, but for moving them to practical action to achieve governmental
changes is or is not a charitable purpose. There was some debate before us as to the import of the expression
“charitable” and arguments were addressed in particular as to the exact point of difference between, the
concept of charity under the English Law and that under the Indian Law. No doubt, as pointed out by Lord
Wright in Chichester Diocesan Fund & Board-of Finance (Incorporated) v. Simpons (1) the term “charity” has
not, in England, always had a precise connotation. What constituted a charitable purpose has there been
derived from the preamble of the Act 43 Elizabeth 1 Ch. IV (1601) which was’ taken to signify those purposes
which would be held to be charitable. It is not’ necessary for us to set out the objects enu- merated in that
preamble but it was always considered that list was not exhaustive though to decide whether a purpose was in
law charitable or
(1) (1944) A.C. 341, 353.
646
not, it has been the practice of the English Courts to refer to that preamble. In these decisions besides the
objects there enumerated, others which by analogy were deemed to be “within the spirit and intended of that
statute” have been held to be charitable in the legal sense. Ever since however the judgment of Lord
Macnaghten in Commissioners for Special Purposes of Income Pax v. Pemsel (1) the expression ‘charitable Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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purpose” has been understood to comprise four main heads : (1) relief of poverty, (2) advancement of
education and learning, (3) advancement of religion, and (4) other purpose,% beneficial to the community or
the advan- cement of objects of general public utility. As regards the last clause, Lord Macnaghten expressed
the view that under English law there might be some purposes of general utility which might be charitable and
some which might not be, the true test being whether the particular purpose was within the spirit and intention
of the statute of Elizabeth. Whether the concept of charity under Indian law is or is not wider than what Lord
Macnaghten considered to be the scope of charitable purpose in England does not really arise for
consideration in the case before for us, we are bound by the terms of s. 9 of the Act which has defined the
several categories into which a charity might fall. It was not the contention of the respondent that the trust-
deed constituted a charity under any other head than that of the fourth clause of s. 9 viz., “,the advancement of
any other object of general public utility.” In saying so what we desire to point out is that it was not the
contention of the respondent that by the reference to “political education” in cl. 1 of the Trust-deed, the charity
was one for the advancement of “education” within s. 9 (2). It would be seen that ultimately the question to be
decided is whether the achievement
647
of a political purpose, in the sense of arousing, in people the desire and instilling into them an imperative need
to demand changes in the structure of the administration and the mechanism by which they are governed,
could be said to be the “advancement of an object of general public utility.” Having regard to the very limited
nature and scope of the question before us it is not necessary to consider the precise points of the difference
between the English law as understood by Lord Macnaghten and that which finds place in the Indian statutes
dealing with the relevant topic. We say this because we have judgments–of the Privy Council cons- truing the
terms of s. 4 of the Indian Income-tax Act of 1922 in which enactment the purposes which are comprehended
within the expression “‘charitable” are defined in exactly the same manner as we find in s. 9 of the Act now in
question and where in particular, the. learned Judges had to consider the question whether the achievement of
a political purpose, as we have explained earlier, was a charitable purpose.
Before however referring to the Privy Council it would be of advantage if we refer briefly to the decisions in
England which have taken the view that if a purpose were political it is not charitable i.e., it does not advance
an object of general public utility. The earliest case to which we need make reference is the decision of
Rowlatt, J., in Commis- sioners of Inland Revenue v. The Temperance Council (1). It arose out of a claim by
the Temperance: Council for exemption from payment of income-tax in respect of the income and dividends
derived by the Council, on the ground that the Council was established for charitable purposes only. The
purpose of the Council was “by united action to secure legislative and other temperance reform.” Dealing with
this claim the learned Judge said
(1) (1926) 10 Tax Cas. 748.
648
“The work of the Council, it was provided, was to be a of strictly non-party character. That is a wholly
irrelevant consideration. When it has been said that a political purpose is not a charitable purpose, that
conclusion is not relevant, because political purposes are or may be purposes mixed up with party politics; the
word ‘political’ does not mean that in that connection at all.”
The learned Judge went on to state that the object of the trust being to secure a certain line of legislation, it
would not be a charitable trust.
Bonar Law Memorial Trust v. Commissioners of Inland Revenue (1) is the next case to which reference might
usefully be made. The done under the trust was the Chairman, on the date of gift, of the central office of the
Conservative Party. and the fund was donated by an oral trust and a deed was executed after the death of the Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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donor to secure the objectives with which the donor had made the gift. The objects were, inter alia, to honour
the memory of Bonar Law (a former leader of the Conservative Party), “to preserve a historical building from
destruction and to use it as a college for the education of persons in economics, political and social science,
etc., with special reference to the development of the British Constitution, and in such other subjects as the
governing body might deem desirable.” The intention, of the governing body was to educate students in
political principles and to exclude propaganda in support of a particular party, and students were admitted to
the college without any reference to their political beliefs or inclination. It was, however conceded that the
governors of the college and the members of the education committee were wholly composed of members of
the Conservative Party and that lectures were given on the conservative party (1) (1933) 17 Tax Cas. 508.
649
Organisation but not on Liberal or Socialist organisation. The question before the Court related to the claim of
this trust for exemption under the Income Tax Act. Finlay, J., in rejecting the claim of the trust to the
exemption, observed
“It is necessary to ascertain exactly, as far one can, what the question to be decided here is. It was suggested
by Mr. Needham that a trust for the promotion of Conservative principles would be a good charitable trust. I
am not prepared to hold that. In my opinion, there is no authority. which has gone as far as that. It is true that
Stirling, J., in the case of Scoweroft (1) left the matter open, but, in my opinion, on the present position of the
authorities and also, as I think, on the principle of the thing, it is impossible to hold that a trust which is
simply a trust for the propagation of the political principles of a particular party is a good charitable trust.”
The learned Judge then extracted a passage from the judgment of Russell, J., in In re Tetly (2 reading:
“Subsidising a newspaper for the pro. motion of particular political or fiscal opinions would be a, patriotic
purpose in the eyes of those who considered that the triumph of those opinions would be beneficial to the
community. It would not be an application funds for a charitable purpose.”
Scowcrofes case which is referred to by Finlay, J,. is reported in [1898] 2 Ch. 638. Under a will a particular
property was devised to be set apart “to be maintained for the furtherance of Conservative principles and for
religious and mental
(1) [1898] 2 Ch. 638. (2) (1923) 1 Ch. 258, 262. 650
improvement and to be kept free from intoxicants and dancing”. The case before the Court arose on an
originating summons taken out ‘by the trustees of the will to determine the validity of the devise. It was urged
in support of the summons, by Counsel who disputed the validity of the disposition that a gift in furtherance
of Conservative principles wan not a good charitable gift and that as it was impossible to say how much to be
devoted to the advancement of the Conservative cause and how much to religious and mental improvement,
the purpose was vitiated and the entire devise was void. On the other hand, it was the contention on behalf of
the Attorney-General that the bequest for a religious purpose was good and was not vitiated by being
associated with or intended to promote any particular views, unless such views be illegal or immoral. It was
further urged on his behalf that the gift before the Court was not one merely for the furtherance of
Conservative principles but for Conservative principles and religious, and mental improvement, i. e. for
religious and mental improvement in, connection with Conservative principles and that looking at the
substance of the gift they were really and principally for the mental and moral improvement of the villagers,
and not being in, validated by the tinge of Conservative principles, were good and valid charitable gifts.
Stirling, J., accepted this submission of the Attorney General in support of the validity of the trust. The
learned Judge said: Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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“Whether or not a gift for the furtherance of Conservative principles is a good charitable gift is A question
upon which I do not think it necessary to express any opinion in this case, because it seems to me that the
reading which is suggested is not the true one, but 651
that this is gift for the furtherance of Conservative principles and religious and mental improvement in
combination. It is either a gift for the furtherance of Conservative principles in such a way as to advanced
religious and mental improvement at the same time, or a gift for the furtherance of religious and mental
improvement in accordance with Conservative principles; and in either case the furtherance of religious and
mental improvement is in my judgment, an essential portion of the gift.. It is, therefore a gift in one form or
another for religious and mental improvement, no doubt in combination with the advancement of
Conservative principles; but that limitation, it appears to me, is not sufficient to prevent it from being a
perfectly good charitable gift, as undoubtedly it would be if it were a gift for the furtherance of religious and
mental improvement alone.”
In re Tetley (1), referred to by finlay J., in Boner Law Memorial Trust case (2), was concerned with the
validity of a bequest under which the trustees were directed to apply property “for such patriotic purposes or
objects and such charitable object or objects in the British Empire as they in their absolute discretion should
select”. The Court of appeal affirming a judgment of Russell, J., held that a patriotic purpose might not
necessarily be charitable and therefore the bequest was void. Dealing with the head of “Charity” relating to
“trusts for purposes beneficial to the community” Barrington, L.J.,said.
“You inquire what the divisions of charities are, and you come to the conclusion that there is one
miscellaneous set of chari-
(1) [1923] 1 Ch. 258, 262.
(2) (1933) 17 Tax. Cas. 508.
652
ties which can be classed under that head; but to stateduce from that the notion that every purpose of general
use to, the community must be a charity is just about as logical as to draw from a statement in the report of an
insurance society that ‘persons insured with us may be divided into men, women and children’ the deduction
that every man, every woman, and every child is insured in that society. It seems to me, therefore, that it is
open to us to say, that merely because a trust may be said to be for the general use of or for some purpose
beneficial to the community is not necessarily confined to “charitable purposes’ in the legal acceptable of that
term………… Expression ‘patriotic purposes’ even if it be confined to purposes beneficial to the State, is not
necessarily confined to charitable purposes, and a gift for “patriotic purposes’ is therefore so uncertain as to be
void.”
The position is summarised in Halsbury’s Laws of England (1) thus:
“‘A trust for the attainment of political objects is invalid, not because it is illegal’-for everyone is at liberty to
advocate or promote by any lawful means a change in the lawbut because the court has no means of judging
whether a proposed change in the law or will not be for the public benefit, and therefore cannot say that a gift
to secure the change is a charitable gift.”
The law, as stated here, is an extract from the judgment of Lord ‘Parker in Bowman v. Secular Society, Ltd.(2)
(1) 3rd Edn., Vol. 4, para 523-the title being contributed by Danckwerts
2) [1917] A. C. 406 442. Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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653
We shall now turn to the decisions of the Privy Council in appeals from India which bear upon the question as
to, whether a trust created for a political purpose or with a view to attaining political objects could be, held to
be a charitable trust within the meaning of the words “the advancement of an object of general public utility”.
in the Trustees of the Tribune Press, Lahore v. Commissioner of Income-tax(1) the court was concerned with
the claim to exemption under s. 4 (3) of the Indian Income-tax Act which, as we have pointed out earlier, is
for purposes relevant in the present context, identical with s. 9 of the Act. The exemption was claimed by the
Trustees of the Tribune Press under a Trust which directed them “to maintain the said Press and newspaper in
an efficient condition keeping up the liberal policy of the said newspaper and devoting the surplus income of
the said press and newspaper………………… in improving the said newspaper and placing it on a footing of
permanency It. might be mentioned that evidence was placed before the Privy Council of selected issues of
the, newspaper which threw light on the character and the, policy of the paper in lifetime of the founder as
explanatory of the direction contained in the I words “,keeping up the liberal policy of the said newspaper”.
The reference under s. 66(2) of the Income-tax Act came before a Division Bench of the Lahore High Court
and as the learned Judges were divided in their opinion, the question was referred to full bench of three judges
and by a majority the learned Judges held that the income of the trust was not exempt. It was from this
judgment that the trustees preferred the appeal to the Privy Council. Sir George Rankin who delivered the
judgment of the Judicial Committee first rejected an argument which sought to sustain the charitable nature of
the first by a (1) [1939] L. A. 66. I. A. 241.
654
contention that the trust might be regarded as of an educational character, the submission being that the
establishment and maintenance of an efficient newspaper catering to the needs of a populous district where
was need for such a paper fell within such a purpose. The next point that was urged had been that the property
was held under a trust for ,the advancement of an object of general public utility”. The learned Judge pointed
out that the statutory law in India had for a long number of years and in several instances defined “‘charity” in
the way which it had been found in Indian Income-tax Act with which they were con- cerned. Two of the
learned Judges of the High Court had expressed an opinion that on the question whether a particular object or
purpose was of general public utility, the true test was not what the Court considers to be beneficial to the
Public,, but what the testator or the author of the Trust considered to be so. This view was dissented from and
it was pointed out if this were accepted trusts might be established in perpetuity for the promotion of all kinds
of fantastic (though not unlawful) objects. The Court had therefore a responsibility in the matter in coming to
a decision as to the object of the trust and to discover whether it satisfied the statutory test of ,advancing
general public utility.”‘ The Judicial Committee expressed its assent to the view that an eleemosynary element
was not essential for a use being charitable and so the fact that the newspaper was not given free to its
subscribers, but only sold them for a price did not detract from the trust being charitable. Sir George Rankin
then dealt with the main objection that was taken to the trust not being charitable and that was on the ground
that the Tribune newspaper was intended by its founder to carry on political propaganda and was intended to
be devoted to the advocacy of particular legislative
655
measures considered by its founder to be measures of reform and it was this political character which the
respondents contended prevented the trust from being held to be an “object of general public utility”. After
referring to the various English decisions to most of which we have ourselves referred, the learned Judge
proceeded
“These English decisions are in point ‘in so far only as they illustrate the manner in which political objects, in
the wide sense which includes projects for legislation in the interests of particular causes, affect the question
whether the Court can regard a trust as being one of general public utility.” Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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He pointed out that it was not suggested by the Commissioner of Income-tax that the newspaper was intended
to be a mere vehicle of political propaganda but was to be an instrument for the dissemination of news and for
the ventilation of opinion upon all matters of public interest, and recorded his conclusion that questions of
politics and legislation were discussed in the paper only as many other matters were discussed and that it had
not been made out that a political purpose was the dominant purpose of the trust. He summarised the position
stating that the object of the paper might fairly be described as “the object of supplying the Province with an
organ of educated public opinion and that it should prima facie be held to be an object of general public
utility. Having regard to the evidence before them as to the contents of the paper it was not a newspaper
intended for the promotion of particular political or fiscal opinions.”
The next case to which we desire to make a, reference is the decision in All India Spinner’s Association v.
Commissioner of Income-tax (1). As
(1) (1944) L.R. 71 A.I. 159.
656
the cause title Itself would indicate, the point in dispute also related to whether the Association was entitled to
exemption in respect of its income under s. 4 (3) (1) of the Income-tax Act. The Commissioner of Income-tax
who made the reference to the High Court under s. 66(2) of the Income-tax Act of the question whether the
income of the Association was liable to income-tax and to super-tax, expressed his opinion that the dominant
purpose of the Association was political because of the intimate connection between the Association and the
Indian National Congress and besides that the manner in which the Association carried on business was in no
way different from the activity of a trading concern. The High Court of Bombay answered the question in
favour of the Revenue. The reason for this holding was that, though the object of the Association was “the
relief of the poor”, still the income which was being assessed to tax was not derived from “property hold
under a trust for a religious or charitable purpose”. There was no property as such from which the income was
derived but the profits arose out of the sum total of the activities of the Association, i. e, out of the business
carried on by it and the fact that one of the objects was the relief of poor would not render the income derived
exempt from tax. Quite a different and for out purposes a More relevant ground on which the case for revenue
was rested was the aim of the association to afford relief to the Poor, was coupled with another object of the
trust which was the prevention of the importation of foreign cloth into India and, as the Association was
created with a view to assisting the All India Congress it was contended that therefore it had a political object.
On appeal to the Judicial Committee, Lord Wright who delivered the judgment of the Board observed
657
“They hold that the income sought to be assessed is income derived from property hold under a trust or other
legal obligation wholly for religious or charitable
purposes… …………… It is now recognized that the Indian Act must be construed on its actual words and is not
to be, governed by English decisions on the topic. The English decisions on the law of charities are not based
on definite and precise statutory provisions. They have been developed in the course of more than three
centuries by the Chancery Courts. The Act of 43 Elizabeth (1601) contained in a preamble a list of charitable
objects which fell within the Act, and this was taken as a sort of chart or scheme which the court adopted as a
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 to reconcile
The difference in language in s. 4(3) from Macnaghten’s classification and particularly the inclusion in the
Indian Act of the word ‘Public’ instead of the word ‘community’ is of importance. The Indian Act gives a clear
and succinct definitionwhich must be construed according toits actual language and meaning. Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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English, decisions have no binding authority on its construction, and though they may some- times afford help
or guidance, cannot relieve the Indian Courts from their responsibility of applying the language of the Act to
the particular circumstances that emerge under conditions of Indian life The statement of the object excludes
any question of profit making, and also excludes any ele-
658
ment of party politics. Any participation in political propaganda would be ultra vires The real underlying
object of the Association was to benefit the poor agriculturists in the villages, specifically, at that time of the
year when they are not actively engaged in agricultural operations …. The primary object of the Association
was thus the relief of the poor There is good ground for holding that the purposes of the Association included
the advancement of other purposes of general public utility There exact scope may require on other occasions
very careful consideration Though the connection of the Association with the Congress was relied on as
inconsistent with general public utility because it might be for the advancement primarily of a particular party,
it is sufficiently clear that the Association’s purposes were independent of, and were not affected by, the
purposes or propaganda of Congress.”
On this reasoning the appeal of the Association was allowed. We consider that these two decisions of the
Privy Council in so for as they hold that a political purpose, in the sense of a propaganda for the achievement
of a political objective, is not a charitable purpose, i. e., not one for the advancement of an object of general
public utility correctly interpret the Indian statute and the law in India. Whatever difference there might be
between the definition of “charity” and “charitable purpose” in the English and’ Indian law, we consider that
there is none so far as regards ,political purposes” in the sense in which we have indicated earlier. In this
context, it is significant that Chichester Diocesan Fund etc. v. Simposns (1) in which (1) (1944) A.I. 341, 353.
659
Lord Wright speaking in the House of lords expounded the uncertainties of the English law as to the meaning
of “charity” and the appeal of the All India Spinners Association (1) before the Judicial Committee were heard
at about the same time,and in consequence the view of Lord Wright expressed in the latter decision that a
political purpose is not an object of general public utility even on the wider language of the Indian statute
reinforces our conclusion on the point. Even though the concept of charity under the Indian Law might be
wider than as understood in England, particularly under the residuary head “advancement of an object of
general utility”, we consider that it would not include a “political purpose” in the sense indicated already.
The latest case on the point to which we would like to refer is a decision of Vaisey, J., in Be Hopkinson :
Lloyds Bank Ltd. v. Baker(2) for the reason that the learned Judge refers to all the earlier English cases to
which we have already adverted as also to the decision of the Privy Council in the Tribunal case. The purpose
of the trust as recited in the bequest was the creation of “an educational fund to be utilized at the absolute
discretion of the trustees for the advancement of adult education with particular reference to the following
purpose (but without limiting their discretion in applying the fund to adult education), that is to say, the
education of men and women of all classes on the lines of the Labour Party’s memorandum headed ” A Note
on Education in the about Party.” Vaisey, J., held that the direction to the trustees to have particular reference
to the memorandum of the Labour Party dominated the whole trust, forming its overriding and essen- tial
purpose which rendered the trust as one for the attainment of political objects and was not, (1) [1949] 1 All.
E.R. 346.
(2) (1944) L. R. 71, I.A. 159.
660 Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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therefore, charitable. The learned Judge pointed out: “Political propaganda masquerading, using the word not
in any sinister sense, as education is not charitable”,
and went on to add
“The principle that legitimate and proper political aims and ambitions are not charit- able is far too well
settled for me at this stage to attempt to apart from or refine upon it. I wish to make it clear that the purpose
indicated in this memorandum and the purpose indicated by reference thereto in the testator’s will are lawful,
legitimate, and, ‘from the point of view of those who put them forward, wholly desirable and proper, but they
are not charitable. The law has been laid down with charity over a long period of time, and, if the trust is not
charitable, it is one which the court cannot uphold. The reason for that, I think, is partly indicated in what was
said, also by Russell J., in Re Hummeltenberg (1923 1 Ch. 237), viz., that, if the trust is one which the court
could not administer if the trustees disclaimed their duties thereunder it would be a trust which could not be
supported in law……………………. The decision in Srowcroft, (4a) the learned Judge observed, did not impinge
upon, or limit the effect of, the general proposition to which he referred. He concluded by saying that there
could be no doubt that the testator’s object was, not education in the proper sense of that word, but the
furtherance of his political views and the better equipping of those who make it their business to further them.
We are clearly of the opinion that a “political purpose” is not a charitable purpose as being one
661
“for the advancement of any other object of general public utility” within s. 9 (4) of the Act.
To summarise the- position:
(1) The object for which ,The Kesari & Mahratta Trust” was established was the achievement of a single
purpose, viz., to continue in perpetuity the activity for the fulfilment 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 hereby 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 poli- tician. 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
selfrespect 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 India’s 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
662
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 Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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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 of 1954. The appeal is accordingly allowed
and the order of the Assistant Charity Commissioner directing the Trust to be registered confirmed by the
Charity Commissioner on appeal is set aside. The appellants will be entitled to their costs in all the Courts.
SUBBA RAO, J.-I have had the advantage of persuring the judgment prepared by Rajagopala Ayyanger, J.,
and I regret my inability to agree. The facts are fully stated in the judgment of my learned brother and I need
not restate them here, except to the extend necessary for appreciating the question raised in this case.
Bal Gangadhar Tilak executed a will on April 5, 1918, and died on August 1, 1920. On August 16, 1920, his
two sons and the executor appointed by him under the will executed a trust deed, Ex. 12, in respect of two
newspapers ‘,The Kesari” and ,The Mahratta”, and the property and the machinery pertaining thereto. The
question is whether the trust created under the said document is a public trust within the meaning of the
Bombay Public Trusts Act, [950] Bombay Act XXIX of 1950), hereinafter called the Act. The material
provisions of the Act read:
663
“Section 2. (13) ,public trust’ means an express or constructive trust for 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.” “‘Section 9. For the purpose of this Act, a charitable purpose includes-
(1) relief of poverty or distress,
(2) education,
(3) medical relief, and
(4) the advancement of any other object of general public utility but does not include a purpose which relates-
(a) exclusively to sports, or
(b) exclusively to religious teaching or worship.”
The Bombay High Court held that the purposes of the trust were, (1) awakening in the minds of the people a
consciousness of their political rights by spreading the knowledge of politico through the newspapers “The
Kesari” and “The Mahraths”, and (2) organizing various public move- ments calculated to promote the
national ideal; and held that the first was a charitable put-pose and the second was not. As the Charity
Commissioner, Bombay, did not file any appeal questioning the finding of the Bombay High Court in so far
as it went against him, I shall assume the correctness of the said finding, and proceed to consider whether the
first purpose is also not a charitable purpose as is contended before us on behalf of the appellants. 664
Before doing so, it would be convenient to consider the scope of s. 9(4) of the Act, for it is agreed that the
trust is not covered by the other clauses of the section. It is common place to observe that where the language
of an Act is clear and explicit, we must give effect to it for the words of the statute speak the intention of the
Legislature. When the words of a statute are unambiguous, it would be safe to consider them without
reference to cases. The words of cl. (4) of s. 9 of the Act are of the widest amplitude and are free from any
ambiguity. The key-words are ,general public utility”. “General” means pertaining to a whole class; “Public”
means the body of the people at large, including any class of’ the public; “utility” means usefulness. Therefore,
the advancement of any object of usefulness or benefit to the public or a section of the public, as distinguished
from an individual or group of individuals, is a charitable ,purpose. The clause excludes expressly two Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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purposes, namely, a purpose which relates exclusively to sports and a purpose which relates exclusively to
religious teaching or worship, from the purposes mentioned in cl. (4) indicating thereby that all objects of
general public utility, except those expressly excluded therefrom, are included in the general words used in cl.
(4). Whenever a question arises whether a particular purpose is a charitable one within the meaning of that
clause, one has to ask the question whether its object is to benefit the public. Before 1 consider the English
case-law developed in the peculiar circumstances of that country, which is more likely to obstruct than to clear
the path of construction of an Indian statute, let me look at the terms of the trust deed to ascertain whether the
purpose of it was one of general public utility as indicated above,
665
The relevant part of the trust deed reads: “‘This trust deed is made as a means to the fulfilment perpetually and
uninterruptedly after the death of late Lokmanya Bal Gangadhar Tilak of that very object of his with which he
took up all activities, after he took charge of the newspapers “The Kesari” and “The Mahratta”, such as of
spreading national education through those newspapers and thereby making people alive to their political
rights and carrying on other multifarious public activities conducive to the’ national ideal etc.
I am omitting for my consideration the last clause of the trust deed, namely, “carrying on other multifarious
public activities conducive, to the national ideal etc.”, as the High Court has hold that clause does not indicate
a charitable purpose and there is no appeal by the respondent against that finding. I should not be understood
to have expressed any view on the correctness of that finders. The opening words show that the trust-deed was
executed for “the fulfilment perpetually and uninterruptedly the object of late Bal Gangadhar Tilak.” The
adverbial phrase “perpetually and uninterruptedly” indicates beyond any reasonable doubt that the object was
not a temporary one but was such that it should be carried on for ever. This excludes any idea that the object
was merely to replace the British Government by an Indian Government, for, in that event, the object would
come to an end with the achievement of independence. The object, therefore, must be something higher than a
mere change of political power from the British to the Indian hands. The next part of the trust deed gives a
clue to the scope of the object. The activities mentioned therein reflect the content of the object. The activities
mentioned are those
666
that Bal Gangadhar Tilak carried on after he took charge of the newspaper ‘,The Kesari” and “The Mahratta.”
The nature of the activities is indicated and it is the spreading of national education through those newspapers
and thereby making the people alive to their political rights. The words “such aa” indicate that the said activity
is not ex- haustive of the object of Bal Gangadhar Tilak, but is only illustrative of the activities. The question,
therefore, is whether the activities, such as spreading of national education through the newspapers and
thereby making the people alive to their political rights, are of charitable nature within the meaning of s. 9 (4)
of the Act. It may be mentioned that learned counsel for the appellants argued that the words “‘national
education” do not correctly repre- sent the expression in Marathi language and that he would like us to read in
the place of “national education” the words ,,political education”. In the High Court this translation has been
accepted as the correct, one and it is not advisable or proper for this Court to allow the counsel to question at
this stage the correctness of the said translation. India is a multilingual country and appeals come to this Court
from different areas speaking different languages. The Judges of this Court do not understand all the
languages. In the circumstances ordinarily this Court shall accept the official translation as correct; The
expression “national education” excludes the idea that the said education is intended to cover, or confined to,
any particular group. A, nation can be educated in different ways and one of the ways is certainly by
spreading ideas through well conducted newspapers. While “The Mahratta” published in English may reach
only the intelligentsia, “The Kesari” published in Marathi may enlighten the uneducated people-I am using
this word in the limited sense of people who are not educated in English- spread over the innumerable villages
of the Marathi speaking area. The nature 667 Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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of the education sought to be so imparted is described as one to make the people alive to their political rights.
To make the people conscious of their political lights is not the same thing as to indoctrinate them in the
ideology of a particular political party. Political rights have been defined in Corpus Juris, Vol. 49, p. 1076
thus.: “‘Those which may be exercised in the formation or administration of the government; the power to
participate, directly or indirectly, in the establishment or management of the government; those rights which
belong to a nation, or to a citizen, or to an individual member of a nation, so distinguished from civil rights,
namely, local rights, of a citizen.”
In Cyclopedic Law Dictionary, 3rd Edn., the meaning of the exprsssion ‘,,political rights” is given as. follows:
“A political right is a right exercisable in the establishment or administration of government, while a civil
right is a right accorded to every member of a distinct comm- unity or nation with reference to property,
family or marriage, and the like. Political rights consist in the power to participate, directly or indirectly, in
the establishment or management of government.”
Political rights, therefore, are not rights pertaining to any particular political party. They are rights of every
citizen irrespective of his party affiliations, which he is entitled to exercise in- the formation or administration
of a government. In the context of a modern state, education in political rights may include diverse aspects of
it, such as, political, economical social etc. It is the fundamental of any good government of a State that the
people belonging to that state shall know their
668
political rights. The importance of the said education has no relation to the form of government existing at a
particular time. It is important both in a self-governing State, as well as in a colonial State. Unless the people
know their rights, they cannot work either for their freedom or elect proper persons to represent them after
attaining freedom. No education is more important than political science, for not only good government but
also the maintenance of independence, to a large extent, depends upon the political consciousness of’ the
people of a particular State. If that be so, I find it impossible to say that spreading of national or even political
education to make people conscious of their political rights is not an object of general public utility within the
meaning of s. 9 (4) of the Act. It is said that the activities of Tilak were subversive in character and were
directed to change the form of government, that is, to replace the foreign government with a national
government that his object was to break law and, therefore, was not a charitable one. This argument does great
injustice to Tilak, who was on all accounts a great patriot of his days. No material has been placed before this
Courts to characterise him as a political opportunist or a person whose sole object was to wrest the political
control from the British Government by any means foul or fair. Indeed he has now become a historic figure
and in the absence of any material before us, I think I am justified in looking into some reputed book on the
life of Tilak.
In Tahmankar’s “Lokamanya Tilak” the objects with which the newspapers “,The Kesari” in Marathi and “The
Mahratta” in English were started are given thus at p. 26: “‘It was in order to lay the corner-stone of a future
revolution that Tilak and his co-workers decided to launch two newspapers, the Kesari, written in Marathi,
and the
669
Mahratta in English. The prospectus, pub- lished in 1880…………. I… boldly declared that kesari would,deal
comprehensively with political and economic conditions in the country, carry objective literary reviews of
new works in Marathi, and would particularly emphasize and spotlight, the course of world events and
politics.” In the leading article of the first issue of Kesari dated January 4, 1881, it was stated, referring to
Britain, thus: Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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“In that country, through the powerful medium of the Press, a vigilant eye is kept on the public conduct of
every functionary from the highest to the lowest-from the Prime Minister to the pettiest civil servant which
has enabled the British to enjoy a reasonable guarantee that no case of injustice should long remain concealed
and unexposed.”
The editor of the newspaper also declared his intention to try to improve social conditions by frankly telling
the people what was evil and harmful in their way of life. The same author defines briefly the object of the
two newspapers thus at p. 27:
“Kesari was to cater for the needs of the’ mass ignorant population, who have generally no idea of what passes
around them and who therefore must be give in the knowledge of such topics as concern their everyday life by
writings on literary, social, political, moral and economic subjects . The Mahratta, on the other band, kept in
view the more advanced portion of the community who require to be provided with material for thinking
intelligently on the important topics of the day’. ‘The tone and temper of Kesari were 670
democratic; it aim was popular education and public agitation. The Mahratta was to serve as the authoritative
organ of educated public opinion in Maharashtra. It discussed compre- hensively every question of high
politics, and offered its readers a selection of the views of foreign and Indian journals and publicists on the
questions of the day.”
Though Tilak was in the beginning closely associated with the papers, later on he took over the editorship of
both the newspapers and became their sole proprietor. The author describes how the papers were mounded in
the hands of Tilak, at p. 39:
“Kesari was produced not to entertain the people, but to instruct and guide them. It was a newspaper for the
people and its purpose was to make them think and act. Tilak was an editor-philosopher who had a message to
give to his readers and be gave it with fire and imagination. There was nothing meekly-mouthed about his
writing. In a downright, frank and robust style week after week Tilak poured out his soul on day-to-day
problems, economic questions, philosophical ideas, historical researches, literature and art.”
Tilak was 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
671
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 calcu- lated 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.
Can the objects of this great man, reflected, propagated, and pursued by the said papers, be characterized 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 Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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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 ? 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
672
were also selfseekers who 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 country’s 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 tookover 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
executed to perpetuate the said object is clearly a trust for general public utility within the meaning of s. 9 (4)
of the Act.
But it is said that the object 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 the matter of construction 673
of In Indian statutes. In.All India Spinners’ Association of Mirzapur, Ahmedabad v. Commissioner of
Income-tax (1), the Judicial Committee bad to consider the scope of s. 4 (3) (1) of the Indian Income-tax Act.
In that decision, Lord Wright, speaking for the Board, observed: “It is now recognized that the Indian Act
must be construed on its actual words, and is not to be governed by English decisions on the topic. The
English decisions on the law of charities are not based on definite and precise statutory provisions. They have
been developed in the course of more than three centuries by the Chancery Courts.”
After pointing out that in the English law the purposes beneficial to the community are charitable whereas
under the Indian statute the advancement of any other object of general public utility is a charitable purpose,
proceeded to state:
“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.
The Judicial Committee again in Williams Trustees v..Revenue Commissioners (2) reiterated the same
principle with greater emphasis.
With this background let me briefly notice the English law on the subject with a view to
(1) (1944) L.R. 71, I.A. 159,166,167. Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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(2) [1948] 16 I.T.R. Supp. L 41.
674
ascertain whether they would afford any help or guidance for construing the statutory provisions of the Act.
The English law of charity has grown round the Statute of Elizabeth (43 Eliz. c. 4) and the preamble thereto
read as follows : “The relief of aged, impotent and poor people ; the maintenance of sick and maimed soldiers
and mariners ; the maintenance of schools of learning, free schools and scholars in universities ; the repair of
bridges, ports, ,havens, causeways, churches, sea-banks and highways; the education and preferment of
orphans ; the relief, stock or maintenance’ of houses of correction ; the marriage of, poor maids; the
supportation, aid and help of young tradesmen, handicraftsmen, and persons decayed ; the relief or redemption
of prisoners or captives ; the aid or ease of any poor in- habitants concerning payment of taxes ; the setting out
of soldiers.”
Sir Samuel Romilly in his argument in Morice v. Bishop of Durham (1) attempted to classify the said objects
under the following heads “Relief of the indigent, the advancement of learning, the advancement of religion,,
and the advancement of objects of general public utility.” But Lord Macnaghten in Commissioner for Special
purpose of Income Pax v. Pemsel (2) did not adopt this classification but instead grouped the purposes which
have been held charitable within the language of the aforesaid; preamble under the following four heads : (1)
relief of poverty ; (2) advancement of education ; (3) advancement of religion ; and (4) other purposes
beneficial to the community not falling under any of the preceding heads. It will be at once noticed that s. 9(4)
of the Act accepted the last head suggested by Sir Samuel Romilly in preference to the fourth head
enumerated by Lord (1) (1805) 10 Ves. 522, 532; 32 E.R. 947. (2) (1891) A.C. 531. 583.
675
Macnaghten which has been the basis for the decisions which I will consider immediately. The case law on
the subject is immense: it is impossible to discover any common thread passing through them. But I shall
content myself with noticing decisions relating to trusts created to promote what is broadly described as the
advancement of political objects. A brief summary of the English decisions shows not only an irreconcilable
conflict but also the danger of importing them in the construction of an Indian statute. The following purposes
have been held to be non-charitable purposes :
(1) To secure by united action legislative and other temperance reforms : vide The Commissioner8 of Inland
Revenue v. The Temperance Council of the Christian Churches of England & Wales (1).
(2) To subsidize a newspaper for the promotion of particular political or fiscal opinions : vide National
Provincial and Union Bank of England Ltd. v. Tetley (3) To honour the memory of a great statesman, a
former leader of the Conservative Party to preserve a historical building from destruction and to use it as a
college for the education of persons in economics, politics and social science, etc. with special reference to the
development of the British Constitution, and in such other subjects as the governing body by whom the Trust
was administered might deem desirable : vide Bonar Law Memorial Trust v. Commissioners of Inland
Revenue (3).
The following purposes have been held to be charitable purposes :
(1) Financing a Bill before Parliament to (1) (1926) 10 Tax Cas, 748 (2) [1923] 1 Ch. 258. (3) (1033) 17 Tax
Cas. 508.
676 Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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establish a see at Birmingham vide In re VilliersWilkes (1). (2) Combating vivisection partly by the repeal of
a statute : vide In re Foveaux
(3) Maintenance of village club and reading room (,to be used for the furtherance of Conservative principles
and religious and mental improvement, and to be kept free from intoxicants and dancing” : vide In re
Scowcroft (a). (4) For the benefit of a particular place, whether a parish, town, or borough, a county, or a
country : vide Public Trustees v. Smith (4).
In Halsbury’s Laws of England, 3rd Edn., Vol. 4, the following summary is found at p. 231 :
“The promulgation of particular doctrines or principles not subversive of morality or otherwise pernicious and
not in furtherance of the principles of a particular political party maybe charitable, as, for instance, Conser-
vative principles combined with mental and moral improvement, Socialism, kindness to animals, or
temperance, or extending the knowledge of those doctrines in the various branches of literature to which I
have turned my attention and pen, in order to ascertain what appeared to be truth, and to teach it to those who
would listen.”
A cursory glance at the said illustrations would be enough to indicate that there was no consistent principle
underlying them; the decisions speak in different voices. Some decisions attempted to lay down certain
principles, but no sooner were they laid down than they were given up by subsequent decisions in a search for
others. The following (1) (1895) 72 L.T. 323. (2) (1895) 2 Ch. 501. (3) (1898) 2 Ch. 638. (4) (1932) 1 Ch.
153. 677
principles may be called out from some of the aforesaid decisions`
(1) A trust is charitable only if it is within the spirit and intendment of the preamble to the Statute of
Elizabeth. (2) Every object of public general utility is not necessarily charitable : see Williams Trustees v.
Inland Revenue Commissioner’s (1).
(3) A trust for changing the law of the country is not charitable. (4) As it is a maxim that the execution of a
trust shall be under the control of a court, it shall be of such a nature that it can be under that control so that
the administration of it can be reviewed by the court: vide Morice v. The Bishop of Durham(2).
And (5) a gift would not be charitable if the purpose is as vague as “dbaram”, when it may be employed for
purposes which are not considered charitable.
The first principle could not obviously be applied to a case under the Act, for it has not expressly or by
necessary implication, invoked the preamble to the Statute of Elizabeth. The second principle conflicts with
the express provision of cl. (4) of s. 9 of the Act: while under the English law some purposes, though
undoubtedly purposes of public utility, were not considered to be such on other considerations, under the Act
such division is not permissible, as cl. (4) of s. 9 expressly makes every such purpose a charitable purpose.
The third principle has not been consistently followed even in England; nor can I fined any reasonable basis
for the same. If that be correct principle, then no purpose, however demonstrably it may be for the general
public utility, can be
(1) (1948) 16 I.T.R. Suppl. 41.
(2) (1805) 10 Ves. 522, 532, 32 E.R. 947. 678
charitable if to implement its purpose it is necessary to create a climate for changing the existing law. Trusts
created for educating the public on the evils of alcoholism, prostitution and other social evils, with a view to
put pressure on the legislature to bring about appropriate reforms would cease to be charitable : political Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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purposes may be brought under this head, for mostly, though not always, such purposes would be sought to be
effectuated by a change in law. But in my view, the mere fact that a change of law is involved in the process
could not make a purpose otherwise charitable a non-charitable one. Nor does the fourth principle afford a
correct test for a charitable purpose. It is true that the author’s declaration that a particular gift is charitable is
not decisive of the question, but in the ultimate analysis the court has to decide whether the purpose or object
is charitable or not. I do not see any insurmountable difficulty in the court coming to a conclusion one way or
other whether a political object is a charitable object, just like it would come to a conclusion in the case of a
gift for the propagation of the tenets of a particular religious sect. Nor can it be said that the court by deciding
the character of a trust created for political purposes will be indulging in politics. If that be so, it can be said
with equal justification that in the case of a religious trust a court by deciding the said question would be
supporting a particular religious sect in preference to another. The court does not take sides in the political or
religious controversy, but only objectively looks at the purpose to ascertain whether it is charitable or not and
administers it, if called upon, through the necessary machinery. The fifth principle is sought to be applied to a
political purpose. It is said that the express on “polotical purpose” is so vague that there is the possibility of
the trust being applied to non-charitable purposes. I do not see how it can be posited that every political
purpose is a
679
vague purpose : it depends upon the facts of the case. It is for the court to construe the trust deed in each case
with a view to ascertain whether the purpose, political or otherwise, is vague or not. If a gift for the benefit of
a place, whether a parish, town, brouoh, county or country is charitable, as has been held in the “locality
cases”, I do not see how a gift for the political uplift of the country would never be for a charitable purpose on
the ground that it would be vague. Nor can it be said as a proposition of law that the propagation of the
principles of a particular political party would necessarily be not beneficial to the community. Suppose a
country is backward or undeveloped and a philanthropist endows property for propagating a particular
doctrine likely to bring about the welfare of the public : the ideology sought to be propagated may be labelled
according to the doctrines prevalent in a particular country. How can it be said as an inflexible rule of law that
a political purpose is riot beneficial to the community ? It depends upon the facts of each case. Tudor in his
book on Charities, 5th Edn., p. 41, points out that “the proposition that political purposes cannot be charitable
is difficult to reconcile with certain decided cases”. Even some of the decisions of the English courts, finding
the illogicality of such a doctrine, attempted to modify it by stating that it is necessary, in order to establish
the validity of a charity, to show that the end is not to be attained mainly by political means, indicating
thereby that the dominant purpose shall not be a political one. The approach of the English Courts to this
problem has been succinctly stated by Chitty, J., in Re Foveaux thus: “The method employed by the Court is
to consider the enumeration of charities in the Statute of Elizabeth, hearing in mind that the enumeration is not
exhaustive. Institutions whose objects are analogous to those
680
mentioned in the Statute are admitted to be charities; and again, institutions which are analogous to those,
already admitted by reported decisions are held to be charities. The pursuit of these analogies obviouslY
requires caution and circumspection. After all, the best that can be done is to consider each case as it arises,
upon its own special circumstances.’$
Though this statement appeared in the year 1895, a scrutiny of the later decisions indicates that the same
approach continued to be adopted by the courts. Tudor in his book on Charities, 5th Edn.,p. 38, describes the
judicial approach to the problem thus :
“The Courts have extended the class outlined in the preamble to the Statute of Elizabeth to such an extent as
to render it valueless as a basis for the classification of charitable objects, and it must be admitted that no
analogous counterpart to many of the charities enumerated here can be traced in the preamble.” Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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To summarize : English decisions are conflicting; there is no common thread passing through the variety of
decision, starting from the preamble to the statute of Elizabeth, and apparently relying upon the fourfold
classification of Lord Macnaghten, English courts from time to time decided cases which could not be
sustained either on the illustrations in the preamble to the Statute of Elizabeth or the a dalogies drawn from
them, or the classification of Lord Macnaghten. The decisions conflict with one another, and it is not possible,
or even advisable, to seek to get any guidance from the said decisions to construe, the clear provisions of the
Indian statutes, or, a document executed in Indian statutes, or a document executed in India 681
under circumstances totally different from those obtaining in England. In India, the superstructure of
democracy is sought to be built upon an illiterate basis. If the country had to reach political maturity, no facet
of education would be more important than that political science. In Trustees of the Tribune Press, Lahore v.
Commissioner of Income-tax, Punjab (1) the Judicial Committee held that a trust created by a testator by his
will to the effect that his property “in the stock and good will of the Tribune Press and News. paper in
Anarkali, Lahore,” should vest permanently in a committee of trustees whose duty it should be “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,” was a good and valid trust. It was held that the
object of the newspaper was to supply the Province with an organ of educated public opinion, which was an
object of general public utility and accordingly the trust income was exempt from taxation under sub-s. (3) of
s. 4 of the Indian Income- tax Act, 1922. The Judicial Committee took the case before it out of the scope of
the English decisions with the following observations :
“But their Lordships, having before them material which shows the character of the newspaper as it was in
fact conducted in the testator’s lifetime, have arrived at the conclusion that questions of politics and legislation
were discussed only as many other matters were in this paper discussed, and that it is not made out that a
political purpose was the dominant purpose of the trust.”
(1) [1939] L.R. 66 I.A. 241, 256.
On the facts of the case before it, the Judicial Committee came to the following conclusions :
“They think that the object of the paper may fairly be described as the object of supplying the Province with
an organ of educated public opinion’ and that it should prima facie be held to be an object of general public
utility”.
Subsequent remarks show the distinction between party-politics and general political education :
“Having regard to the particular circumstances of the time, the directions of the testator and the- evidence as
to the contents of the paper before 1898, their Lordships think that the present case is nearer on its facts to In
re Scowcroft (1) than it is to the case of the Bonar Law Memorial Trust (2), or to the case put by Russell, J., in
In re Tetley (3) of a newspaper subsidized for the promotion of particular political or fiscal opinions.” This
judgment was a clear attempt to sustain the validity of the trust, though constituted to educate the public
opinion involving also the propagation of political views, having regard to the wide definition of charitable
purpose under the Indian Act. In All India Spinners’ Association of Mirzapur, Ahmedabad v. Commissioner
of Income-tax, Bombay (4), the All India Congress Committee by its resolution started an association for the
purpose of development of band-spinning by the use of handling. The association was run on a co-operative
basis, that is, the surplus income was distributed only among the members : the Privy Council held that
though the association was started by a political party, the purpose of the association was a (1) ( 1898) 2 Ch.
638. (1923) 1 Ch. 258. (2) (1938) 17 Tax Cas. 508.
(4) (1944) L.P. 71 I.A. 159. Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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683
Charitable one within the meaning of the Income-tax Act. Lord Wright says
“The statement of the object excludes, in their Lordship’s opinion, any question of profit making, and also
excludes any element of party politics.”
Then adverting to the very wide words sub-s. (3)(1) of a. 4 of the Income-tax Act, 1922, namely, ” other
purposes of a general public utility ” the Judicial Committee proceeded to observe:
” These last are very wide words. Their exact scope may require on other occasions very careful
considerations……… Though the connection in one sense of the Association with Congress was relied on as
not consistent with ‘general public utility ‘ because it might be for the advancement primarily of a particular
party, it is sufficiently clear in this case that the Association’s purpose were independent of, and were not
affected by, the purposes of propaganda of Congress. ”
Referring to the English decisions, the Judicial Committee observe-:
” The English cases there (Tribune Press Case (1)) cited do not turn on the words ‘general public utility,’ but
they illustrate how courts of first instance in England have actually dealt with the particular questions there
submitted to them.”
This decision lays down two principles, namely,(1) the words ” other purposes of general public utility” are
very wide and the English decisions do not turn upon those words; and (2) even on the assumption that the
said decisions applied, a trust does not cease to be one for general public utility, though it
(1) (1939) L.R. 66, 1. A. 241.256.
684
may be for the advancement primarily of a particular party. if the purposes were independent of and were not
effected by, the purposes or propaganda of that party. This case, while not deciding on the wide import of the
Indian statute, made a distinction between ‘a party’s propaganda and its party politics and its other objects. In
Subash Chandra Bose v. Gordhandas Patel (1) a testator made four gifts by his will and provided that “the
balance of my assets after disposal of the above mentioned four gifts is to be handed over to Mr. Subhas
Chandra Bose to be spent by him 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.” The Bombay
High Court held that the words “political uplift of India” whether it denotes a general raising of the political
status or conditions of India or the advancement of a political purpose was too vague to be capable of
enforcement by the Courts and accordingly the trust was bad and an intestacy resulted as to the residue
covered by the clause. ‘The decision, therefore, was based upon the principle that a charitable purpose could
Dot be sustained when it was vague. But the observations of Beaumont, C.J., are instructive, and they are:
“However, there the cases are, and if we had in this case a gift to India, or a gift to the people of India, we
would have to consider Whether the principle of those cases should be applied in India, and if so whether that
principle which has been gradually extended from a parish to a country should now be extended to
sub-continent,”
The further observations of the learned Chief (1) I.L.R. 1940 Bom. 254, 278.
685 Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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Justice at p. 279 indicate the reasons for the decision: ” What we have got here is a gift for the political uplift
of India, and one cannot possibly disregard the adjective political’. Assuming that the Meaning of those words
is that for which Mr. Bose contends, i. e., that they denote improvement in the political system of India, and
therefore to that extent must be beneficial to India, the diffculty is that the words are too vague……………. The
test must ultimately be whether, if the Court be called upon to administer the trust, the Court would be able to
do so. Here, it seems to me impossible for the Court to determine what is embraced in the term political uplift
of India.” Citing the observations of Lord Parker, the learned Chief Justice observed at p.281:
“A trust to advance a political purpose is clearly bad on the ground given by Lord Parkar in Bowman v.
Secular Society Limited (1), that a trust for the attainment of political objects is invalid, not because it is
illegal, but because the Court has no means of judging whether any proposed political change will or will not
be for the public welfare or benefit. ”
The learned Chief Justice, therefore, might have held that the trust was charitable if he had Dot come to the
Conclusion that the purpose of “political uplift” was vague and a court was not in a position to know whether
a particular political object would be or would not be for the public welfare or benefit. A division Bench of
the Bombay High Court in re. Lokamanya Tilak Jubilee National Trust Fund, Bombay (2) had to consider a
similar question under the Income-tax Act, 1922.
(1) (1917 ) A.C. 406.
(2) (1941) 43 Bom. L.R. 1027.
686
There, a trust was created for the following objects: (1) 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, (2) the political advancement of India having for its goal the acquisition of complete national
autonomy or “swarajya”, (3) 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, and (4) any object which might
conduce to any of the aforesaid object. The Court held that the first mentioned object went beyond the
definition of “charitable purposes” contained in s. 4 of the Income-tax Act in as much as the section of the
purpose rested in the uncontrolled opinion of the managing committee, and that, the second mentioned object
also went too far, because it was really a gift for political purposes. Beaumont C.J., who delivered the leading
judgment, noticed that the purpose, namely, the advancement of any other object of general public utility went
further than the definition of charity to be derived from the English cases. He observed that, if all the pur-
poses in the trust deed could be regarded as of general public utility for the benefit of the inhabitants of
English India, then the trust would be, in his opinion, a good charitable trust. But he could not decide that it
was so, because, in his opinion, if the attainment of national autonomy might be regarded as a national
purpose accepted generally by, and for the good of, the inhabitants of British India, there was a very keen
divergence of opinion as to the methods by which that national autonomy should be attained and, therefore,
the gift was for political purposes. Kania, J., who delivered a separate but concurring judgment, came to the
conclusion that the second mentioned object was preeminently a political purpose and fell within
687
the rule stated in the Tribune’s case (1). If I may say so, with respect, the decision of the learned Judges was
unconsciously coloured by the English decisions based on Party politics and those decisions had been wrongly
applied to a case of national uplift of the country which was struggling for independence.
The trust now in question came under the judicial scrutiny of the- Bombay High Court in connection with the
Income-tax Act, 1922. The trustees there then contended that the trust was for a charitable purpose and was, Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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therefore, not subject to the provisions of the Income-tax Act. The High Court held that cl. (1) of the trust
deed could not be construed as constituting a charitable purpose, as the purposes mentioned in the said clause
were too vague and wide to constitute charitable purposes within the meaning of the Income tax Act-
Beaumont, C.J, who deliverer the judgment of the Bench, observed:
“The purpose include organising public movements, and even if you limit those general words by the words
‘calculated to promote of national ideal’, it seems to me impossible to say that the promotion of public
movements calculated in the view of the trusttees to promote the national ideal can be regarded as necessarily
of public utility.”
The learned Chief Justice went on to observe: ” It seems to me clear that under clause I of this trust-deed the
whole of the profits of the newspapers could be applied for, any one of the various objects specified and,
there- fore if any of those objects do not fall within the definition of a charitable object, then the clause cannot
be regarded as constituting
(1) (1939) L.R. 66, I.A. 241, 256.
688
a charitable trust, and, as I have said, in my view, some of the objects of the trust certainly go beyond the
definition of charitable trust.”
The reason of the decision, therefore, was that some of the objects of the trust were charitable and others were
not, and as the whole of the profits of the newspapers could be applied for non-charitable purpose, the trust
was not valid. The High Court then did not decide whether the first purpose in the trust deed was charitable or
not: that question falls to be decide in the present case.
It is therefore, clear that the Indian decisions, though to some extent coloured by the English decisions,
appreciated the distinction between the wide language of sub-s. (3) of s. 4 of the Indian Income-tax Act and
the fourth category of Lord Macnaghten’s classification under the English law of charities. But I find it
difficult to accept the observations made in the said judgments that a trust created for the advancement of
political objects would necessarily cease to be one for a public charitable purpose. In support of this
proposition there is nothing except the doubtful and conflicting authority in England. There is no justification
to curtail the wide words of the statute by importing foreign ideas developed in a different set up. In this
context, a decision of the Supreme Court, of one of the States in America is rather instructive, viz., that in
Taylor v. Hoag (1). There, a trust created to promote improvements in the structure and methods of
government was held to be a charitable trust, although the purpose was to secure radical changes in the
“present” system. Frazer, J., answers, in my view effectively, all the objections raised by the English Courts in
holding that a trust for a political purpose was void. Adverting to the question that the trust in
(1) (1922),21 A.L. R. 946, 949, 950.
689
that case involved a change in the existing law, the learned Judge observed:
“Must it be held void because the successful attainment of these objects would involve a change in existing
laws. We would hesitate to subscribe to such doctrine, unless reason or authority compelled us to do so.”
The learned Judge proceeded to state: Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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” To hold that an endeavour to procure by proper means, a change in a law, is, in “effect, to attempt to violate
that law, would discourage improvement in legislation and tend to compel us to continue indefinitely to live
under laws designed for an entirely different state of society. Such view is opposed to every principle of our
Government, based on the theory that it is a Government ,of the people, by the people, and for the people,’ and
fails to recognize the right of those who make the 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 pointed out
690
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-chartiable 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 cypres 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.
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;
691
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 every purpose, whether political or otherwise,
provided it is an object of general public utility.
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.
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. 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-oharitable Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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object. In Halsbury’s Laws of England, 3rd Edn., Vol.4, at p.272, the following passage appears: ” When a
testator give 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 app- lied for the
different objects, the Court will make an apportionment.”
” Again, where a fund is given for several objects, some charitable and some non-chari- table or illegal, there
being a clear intention
692
to devote some part to the charitable objects, if it can be ascertained what are the proper proportions to be
attributed to the several but if objects, the Court directs an inquiry, from the nature of the gift it appears impra-
cticable to fix the proportions, the Court divides the fund equally between the different objects.”
This passage is supported by decisions relied upon by the 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 manner prescribed therein. Questions such as the extent of the
trust, the scope of the doctrine of cypres, are all foreign to the present inquiry. I do not propose to express any
opinion on the same. In the result, the appeal fails and is dismissed with costs. By COURT: In view of the
majority opinion of the Court the appeal is allowed and the Order of the Assistant Charity Commissioner
directing the Trust to be registered- confirmed by the Charity Commissioner on appeal is set aside. The
appellants will be entitled to their costs in all the Courts.
Appeal allowed.
693 Laxmanbalwant Bhopatkar ( Since … vs The Charity Commissioner, Bombay on 1 May, 1962
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