The Servants Of India Society, Poona v. The Charity Commissioner Of Bombay

Mudholkar, J.:— [His Lordship after stating the facts, proceeded.] In so far as the second contention is concerned, that is, the objects of the Society are not religious or charitable, it is sufficient to say that the word “charity” in its legal sense is of very vide import. In this connection I may refer to para, 486 of Halsbury's Laws of England, Vol. IV, (third edn.);—where it is pointed out (p. 206):

“486. Legal meaning and tests of ‘charity’. The term ‘charity’ is probably incapable of definition. The popular meanings of the words ‘charity’, ‘charitable’, ‘charitable objects’ and ‘charitable purposes’ do not coincide with their legal or technical meanings according to the law of England. The legal significance is narrower than the popular, and ‘charity’ in the legal sense is a word of art of precise and technical meaning.”

2. It is further pointed out in para, 488 that it is a well-established principle of the law of charity that a purpose is not charitable unless it is directed to the public benefit, and that consequently the element of public benefit is necessary for calling it a charity. It is further pointed out that an object may be charitable in the legal sense notwithstanding that its benefit may not reach the poor. The preamble to the ancient statute of Elizabeth, sometimes known as the Charitable Uses Act, 1601, contained a comprehensive and varied list of charities and it has since been the practice of the Courts to refer to the preamble to decide whether a purpose is charitable or not in law. The objects enumerated in the preamble and all others which by analogies are deemed to be within its spirit and intendment are charitable in the legal sense, but other objects are not, in law, charitable. These objects have been divided into four categories by Halsbury which are:—

(i) trusts for the relief of poverty;

(ii) trusts for the advancement of education;

(iii) trusts for the advancement of religion; and

(iv) trusts for other purposes beneficial to the community not falling under any of the preceding heads.

3. Therefore, the object in order to be regarded as a legal charity must fall under one of the four heads. Of course, the test of “the benefit of the community” is common to all of them. Bearing in mind these legal principles it is clear that the objectives set out by the founder of the Society clearly fall under the fourth category. Needless to say that the test of the benefit to the community is satisfied in this case. Therefore, agreeing with the learned District Judge, I hold that the Society is a public charitable trust. The next question is whether the State Legislature was competent to make a law regulating the affairs of a Society of this kind. In order to appreciate the argument advanced on behalf of the Society by Mr. Amin it is necessary to refer to Entry No. 44 of List No. 1 of the Seventh Schedule to the Constitution. It reads thus:—

“44. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.”

4. Now, according to Mr. Amin, a Society registered under the Societies Registration Act is a corporation in the eye of the law, has a legal personality, can sue and be sued in its own name and can hold property. Therefore, such a Society, according to him, is a corporation and only the Parliament is competent to legislate with respect to it. Section 6 of the Societies Registration Act provides that a society registered thereunder may sue or be sued in the name of the president, chairman, or principal secretary or trustees. Section 5 thereof provides that the property, movable and immovable, belonging to such a society, if not vested in the trustees, shall be deemed to be vested, for the time being, in the governing body of such a society. Mr. Amin contends that the Society is thus something distinct from the members constituting it and must, therefore, be deemed to be a person in the eye of the law. In Krishnan v. Sundaram . 1940 43 Bom. L.R 562. Kania, J. (as he then was) has held that—

“The position of a society registered under the Societies Registration Act, 1860, is like that of a club or a joint stock company.”

5. Thus, according to the learned Judge, it has at least some characteristics of a corporation. Therefore, according to him, such a society, in order to redress a wrong done thereto or to recover moneys or damages alleged to be due to it, could itself bring an action. It is true that such an action has to be brought in the name of the President, Chairman, Secretary of the society or trustees thereof, but the benefit of the action would go not to any of them but to the society itself. This fact clearly shows that such a society has a personality of its own.

6. In Satyavart Sidhantalankar v. Arya Samaj,2 Bhagwati, J. has, following the decision in Taff Vale Railway v. Amalgamated Society of Railway Servants . [1901] A.C 426. taken the view that a society registered under the Societies Registration Act, 1860, is a legal entity apart from the members constituting it. It can sue and be sued in its own name. In the course of his judgment the learned Judge observed (p. 345):—

“…The society is an association of individuals which is neither a corporation nor a partnership nor an individual which apart from statute are the only entities known to law as capable of suing or being sued. The society is an association of individuals which comes into existence with certain aims and objects. If it is not registered as a society under the Societies Registration Act, it would have the character of a club or other association which cannot sue or be sued except in the name of all members of the-association or in the name of the Secretary or other members of the governing body on their own behalf and on behalf of other members of the association under the provisions of O. I, r. 8, of the Civil Procedure Code. It would not be competent to a secretary or other members of the governing body of the club or association to sue or be sued alone in respect of matters in, which the association is interested even though authority in that behalf has been conferred on them by all members of the association…”

7. Then the learned Judge observed:—that a partnership firm is also an association and apart from the provisions of O. XXX, Civil Procedure Code, it cannot sue in its own name. And then he observed (p. 345):—

“…The society of the character we have before us is, however, quite distinct from a partnership. It has nothing in common with a partnership. A corporation or a limited company which is incorporated under the Indian Companies Act has a corporate existence apart from the members constituting the same. A corporation has been defined as a collection of individuals united into one body under a special denomination having perpetual succession under an artificial form and vested by the policy of law with the capacity of acting in several respects as an individual, particularly of taking and granting properties, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common and of exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers conferred upon it either at the time of its creation or at any subsequent period of its existence…The ideas inherent in the definition of a corporation are (1) that its identity is continuous, (2) that it is intangible, i.e it is only in abstract and rests only in intendment and consideration of law (Lord Coke), and (3) it is a thing distinct from its members…”

8. Then the learned Judge referred to statement in Grant in his Law of Corporation to the effect that the name and common seal are indispensable requisites to the creation of a corporation and also the further observation of Grant that there are various other aggregate bodies, partaking in some respects and for some purposes, of the corporate character, but which nevertheless are not complete corporations for want of some of the essentials of corporations, and which, therefore, have been called quasi-corporations. After pointing out that the corporations and the companies incorporated under the Indian Companies Act have thus conferred on them a legal entity which is capable of suing or being sued, the learned Judge observed (p. 346):—

“If, as stated above, associations of individuals are not capable of suing or being sued except by statutory provisions in that behalf as in the case of partnership firms, corporations or companies incorporated under the Indian Companies Act, could it be said that a society registered under the Societies Registration Act XXI of 1860, becomes a legal entity such as can sue or be sued in the name in which it is registered? The Societies Registration Act XXI of 1860 is an, Act for the registration of literary, scientific and charitable societies, and the object of the Act as stated in the preamble is to make provisions for improving the legal condition of societies established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge, or for charitable purposes…”

9. After referring to some of the provisions of the Act, the learned Judge continued (p. 347):—

“Do these provisions of the Societies Registration Act XXI of 1860 constitute the society as registered with the Registrar of Joint Stock Companies a legal entity capable of suing or being sued? Has the society as registered with the Registrar of Joint Stock Companies a legal existence apart from the members constituting the same? It is significant to observe that the members of the society are a fluctuating body…. Even though the members of the society or the governing body fluctuate from time to time, the identity of the society is sought to be made continuous by reason of these provisions. The identity of the original members and their successors is one. The liability or obligation once binding on the society binds the successors even though they may not be expressly named, and in this the society savours of the character of a corporation. The resignation or the death of a member does not make any difference to the legal position of the society. The increase or decrease of the members of the society similarly does not make any difference to the position…The properties of the society continue vested in the trustees or in the governing body irrespective of the fact that the members of the society for the time being are not the same as they were before nor will be the same thereafter. Could it under these circumstances be said that the society by reason of its registration with the Registrar of Joint Stock Companies becomes a legal entity apart from the members constituting the same? I am of the opinion that by reason of the provisions of the Societies Registration Act, once the society is registered with the Registrar of Joint Stock Companies by filing of the memorandum and certified copy of the rules and regulations thereof with the Registrar and the Registrar has certified under his hand that the society is registered under the Act, the society enjoys the status of a legal entity apart from the members constituting the same and is capable of suing or being sued…”

10. The learned Judge then referred to the provisions of ss. 6 and 7 of the Act (which provides that the suit which has not abated by reason of the death of one of the members of the Society) and observed (p. 348):—

“…These provisions and the provisions for the non-abatement of suits and enforcement of judgments against the society would go to show that the society even though registered with the Registrar of Joint Stock Companies would not be able to sue or be sued in the name of the society but could sue or be sued only in the name of the president, chairman, or principal secretary or the trustees thereof or some other person or officer nominated to be the defendant by the society. These provisions, however, in my opinion, are not mandatory. They show a mode in which suits could be filed by or against the society…”

11. The learned Judge then referred to the decision in Taff Vale Railway v. Amalgamatei Society of Railway Servants and quoted with approval the following passage from the judgment of Farwell, J. (p. 429):—

“…Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents…It is beside the mark to say of such an association that it is unknown to the common law. The Legislature has legalised it, and it must be dealt with by the Courts according to the intention of the Legislature…”

12. The learned Judge then quoted some passages from the speeches of Lord Brampton and Lord Lindley. Those passages are as follows:—

Lord Brampton observed (p. 442):—

“…I think that a legal entity was created under the Trade Union Act, 1871, by the registration of the society in its present name in the manner prescribed, and that the legal entity so created, though not perhaps in the strict sense a corporation, is nevertheless a newly created corporate body created by statute, distinct from the unincorporated trade union, consisting of many thousands of separate individuals, which no longer exists under any other name. The very omission from the statute of any provision authorizing and directing that it shall sue and be sued in any other name than that given to it by its registration appears to me to lead to no other reasonable conclusion than that in so creating it, it was intended by the Legislature that by that name and by no other it should be known, and that for all purposes that name should be used and applied to it in all legal proceedings unless there was any other provision which militated against such a construction, as, for instance, in the case of trustees, by s. 9 of the same act, who hold real and personal property of the society…”

13. Lord Lindley observed (pp. 444-445):—

“…The Act does not in express terms say what use is to be made of the name under which the trade union is registered and by which it is known. But a trade union which is registered under the Act have a name:…It may acquire property, but, not being incorporated, recourse is had to the old well-known machinery of trustees for acquiring and holding such property, and for suing and being sued in respect of it (ss. 7, 8, 9). The property so held is, however, the property of the union: the union is the beneficial owner…The Act appears to me to indicate with sufficient clearness that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business and other purposes. The use of the name in legal proceedings imposes no duties and alters no rights; it is only a more convenient mode of proceedings than that which would have to be adopted if the name could be used. I do not say that the use of the name is compulsory, but it is at least permissive.

…to avoid misconception, I will add that if a judgment or order in that form is for the payment of money it can, in my opinion, only be enforced against the property of the trade union, and that to reach such property it may be found necessary to sue the trustees.”

14. Then the learned Judge observed (p. 349):—

“…Even though in the speech of Lord Brampton there are observations which would go to show that the provision, which we have enacted in s. 6 of the Societies Registration Act as regards suits by and against societies, is capable of being construed as the only mode in which suits by or against the societies could be brought the observations of Lord Lindley which I have quoted above go to show that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business and other purposes and that even though the use of the name is not compulsory it is at least permissive. I prefer to be guided by the observations of Lord Lindley which I have referred to above and hold that in spite of the provisions contained in ss. 6, 7 and 8 of the Societies Registration Act as regards suits by and against societies, non-abatement of suits and enforcement of judgment against the societies, which I have already referred to above, it is competent to the society to sue or be sued in the name of the society, to be sued in its registered name, the society on its registration under the Societies Registration Act having come into existence as a legal entity apart from the members constituting the same. If it were necessary to do so I would adopt the terminology which has been adopted in this connection by Cozens-Hardy M.R in Osborne v. Amalgamated Society of Railway Servants . [1909] 1 Ch. 163., where he describes a registered trade union as a ‘species of quasi corporation’…”

15. The learned Judge then referred to a passage from Halsbury's Laws of England, Hailsham Edition, Vol. XXXII, p. 486, para. 776, which runs—

“A registered trade union is not a corporation nor an individual nor a partnership; but it becomes by registration a legal entity distinct from an unregistered trade union. Its registered name is to be used and applied in all legal proceedings, unless there is any provision inconsistent with such use.”

16. This decision of Mr. Justice Bhagwati thus lays down two points: Firstly, that a society registered under the Societies Registration Act is a legal entity and, secondly, that it is a quasi corporation. Now, if this be the true legal position, which, with respect, I think it is, it follows that a Society after it is registered under the Societies Registration Act, 1860, becomes a legal entity, that is, an artificial legal person. The possession of a legal personality is an essential characteristic of a corporation. What it lacks is formal incorporation. The question is whether the word “Corporation” which occurs in Entry No. 44 in List I (the Union List) and Entry No. 32 in List II (the State List) would include also a Society which, by virtue of the provisions of the Societies Registration Act under which it is registered, has became a legal entity.

17. It is a well-established principle that a constitutional enactment under which laws are to be made is not to be interpreted in a strict and narrow manner.

“In interpreting a constituent or an organic statute, that construction most beneficial to the widest possible amplitude of its powers must be adopted.” (British Coal Corporation v. The King).5

18. In In re the Central Provinces and Berar Act No. XIV of 19386 the Federal Court observed:—

“In interpreting a Constitution Act, a wide meaning should be given to the words which confer on the Legislature the power to legislate on certain topics, and within the ambit of the words the most sovereign powers must be understood to be given to the Legislature.”

19. These observations would apply also to the legislative Lists contained in Schedule VII to the Constitution, since they are modelled on those in the Government of India Act, 1935. Bearing in mind these principles I would be justified in according to the word “Corporation” a wide meaning so as to include within it a society which possesses an essential characteristic of a corporation, though such a society is lacking in a formal characteristic of a corporation. In other words, I think that a corporation would include a quasi-corporation.

20. Looking at the matter in a somewhat different way the same conclusion is reached. The two entries in the Constitution which confer power on the Parliament and the State Legislature to make laws about a corporation are as follows:—

Entry No. 44 in List No. I:

“Incorporation, regulation and winding up of corporations, whether trading or not with objects not confined to one State, but not including universities.”

Entry No. 32 in List II:

“Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.”

21. It is contended on behalf of the respondent that if an association or a society is unincorporated, it will not fall within Entry 44 of List I or within the first part of Entry 32 in List II. The argument is that incorporation is a term of art and, therefore, for an association or a society to be regarded as incorporated it must be expressly given a corporate character. That may well be so but that is not the criterion to be applied while construing the entries in the Legislative Lists. For, as already stated, they have to be liberally construed. In addition to the entries referred to above, there is Entry No. 43 in List. I. Therefore, it would be legitimate to infer that the power to legislate regarding every kind of society or association, incorporated or unincorporated, is in-eluded within them. What has to be ascertained is whether, in the absence of an entry regarding quasi-corporations, the power to legislate regarding them can he ascribed to the power of the Parliament or the State Legislature to legislate with regard to corporations or to that given to the latter with regard to unincorporated societies or associations.

22. Now, since a quasi-corporation possesses one of the essential characteristics of a corporation, it would be reasonable to hold that the entries relating to a corporation are wide enough to permit legislation concerning or affecting quasi-corporations. The point would be clear if by way of an analogy a reference is made to Entry No. 7 in List III, the Concurrent List. Thereunder both the Parliament and the State Legislatures have been empowered to legislate about “contracts”. A contract is an agreement which gives rise to a legal obligation whereas, though a quasi-contract gives rise to an obligation, such obligation does not arise out of an agreement. Even so, it cannot be seriously contended that the power to legislate about contracts does not reach quasi-contracts and that, therefore, Parliament alone has the residuary power under art. 248(1) of the Constitution to legislate about it. The obvious reason for this is that the word “contract” must be construed in its widest sense, so as to include transactions resembling contracts, which give rise to obligations even though the transactions do not arise out of agreements. A fortiori, the word “corporation”, in Entries 43 and 44 of List I and in Entry 32 of List II must be similarly construed. It is true that the entries speak of “incorporation, regulation and winding up” of corporations but it does not follow that every legislation enacted under these entries must of necessity deal with the “incorporation” of corporations. The law may well be confined to “regulation” or “winding tip” of corporations already in existence, as for instance, laws passed from time to time amending the provisions of the Company's Act, other than the provisions relating to incorporation of companies. It cannot be said that such a law is not ascribable to the power conferred by the entries.

23. Since the second part of Entry No. 32 in List II permits a State Legislature to make laws concerning certain kinds of unincorporated societies, it must be considered whether laws can be made by it regarding quasi-corporations where such quasi-corporations are also unincorporated societies of the kind referred to in the Entry. It is well to bear in mind that a quasi-corporation is something more than an unincorporated society because it possesses an attribute or attributes which every unincorporated society does not possess. It necessarily follows from this that the power to make a law concerning a society will not extend to something which is more than an unincorporated society though it might embrace a power to legislate on something which is less than an unincorporated society, that is to say, something which has some but not all the attributes of an unincorporated society. This is on the principle that the power to legislate upon a subject necessarily reaches all that falls within that subject but cannot extend to anything which falls outside it. I am, therefore, of the view that the power of the State Legislature to legislate about unincorporated societies which are also quasi-corporations is not ascribable to its power to legislate about societies of certain kinds. It is derived only from the power to legislate about corporations.

24. Now, the power of a State Legislature to enact laws concerning a corporation is limited to Corporations, which have objects limited to the State. Where the objects of any corporations are not limited to the State, then the Parliament alone has the power to enact laws concerning them. The Bombay Public Trusts Act no doubt applies to charitable societies but where any such society was registered under the Societies Registration Act before the coming into force of the Bombay Public Trusts Act and has objects which are not limited to the State of Bombay, that Act will not apply to it.

25. In coming to this conclusion I must not be deemed to have pronounced against the vires of the Act. The Act is perfectly valid but its operation is limited only to societies and associations and to such corporations or quasi-corporations as have objects confined to the State of Bombay. It is an established position in the constitutional law that where a constitutional document empowers a Legislature to legislate with respect to matters arising within a particular territory, such as, a State or a Province, the legislation passed by it must, despite the wide language in which it may have been couched, be presumed to have operation only within the limits of that territory. There is, therefore, no occasion to consider whether recourse need be had to the ‘pith and substance’ doctrine to which a passing reference was made during the arguments. That doctrine is invoked only where the validity of a legislation is challenged upon the ground that legislation is beyond the competence of the Legislature which enacted it. Such an argument was not even raised before us, and indeed could not be raised.

26. A decision of Jahagirdar, J. in Bhaskar Sadashiv v. Registrar, Bombay Public Trusts Registration Act . [1948] bom. 533, s.c 1948 50 Bom. L.R 612., though not cited before us, is relevant and I would like to make a passing reference to it. In that case the question which arose for decision was whether a society called ‘Ananth Vidhyarthi Griha, Poona’, which was registered under the Societies Registration Act, 1860, could be compelled to be registered under the Bombay Public Trusts Registration Act, 1935. The learned Judge after referring to the two decisions of this Court to which we have referred, observed (p. 557):—

“If the position of societies registered under the Societies Registration Act is like that of a club or a joint stock company, there is no reason why there should be an outside interference in its internal management. The rules of the societies usually provide for a machinery for a proper and efficient management of their properties. They, can sue and be sued and if there be any irregularity or illegality in the disposal of its funds, it is always open to the aggrieved party to file a suit against the society for appropriate reliefs and get redress. Obviously it appears to me that as the legislature has already provided for the registration of such societies under the Societies Registration Act, it cannot be the intention of the legislature to bring them within the scope of the Bombay Public Trusts Registration Act which applies to public trusts created or existing for public purposes of a religious or a charitable nature.”

27. The preamble to the Bombay Public Trusts Registration Act, 1935, which has now been repealed was as follows:—

“Whereas it is expedient to provide for the registration of trusts created or existing for a public purpose of a religious or charitable nature and for the audit and filing of-accounts of such trusts with a view to ensuring the better management thereof;…”

28. Thus, the object of the Act was to ensure a better management and the auditing and filing of accounts of certain trusts. Now, the reasoning of the learned Judge was that where such objects have already been fulfilled because of the registration of a society under another, Act no fresh registration was called for. In other words, the learned Judge seemed to take the view that the Act was intended to apply to only those societies which were under no obligation to file accounts or to have their accounts audited etc. and not others. The preamble to the present Act is somewhat different. It is:

“Whereas it is expedient to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay; It is hereby enacted as follows:—”

29. It may be possible to argue that there is no real difference between the objects of the two Acts and, consequently, the aforesaid decision applies. However, as the point was not argued before us I express no opinion on it. All that I want to do is to mention the fact that a particular view was taken by a learned Judge of this Court.

30. For the reasons stated above, it seems to me that the order of the learned District Judge and the orders of the Charity Commissioner as well as of the Assistant Charity Commissioner cannot stand. Accordingly, I would, therefore, allow the appeal and set aside those orders. Costs of the proceedings are, however, directed to be borne by the parties as incurred.

31. Patel, J.:— So far as the first question is concerned I agree with my brother.

32. The second question is whether the State Legislature is competent to enact legislation regulating the affairs of a society of this kind. This question has arisen because of the definition of the term “public trust” contained in the Bombay Public Trusts Act, 1950. Section 2, cl. (13), of the Public Trusts Act defines a “public trust” as follows:

“‘public trust’ means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.”

33. It is argued by Mr. Amin, relying on entry 44 in List I (Union List) under the Seventh Schedule to the Constitution, that the societies registered under the Indian Societies Registration Act are corporations, or, in any case, quasi-corporations and, therefore, would fall within this entry, and in so far as the State Legislature has purported to regulate the affairs of such societies, it is invalid. He relies on the judgment of Mr. Justice Kania in the case of Krishnan v. Sundaram, wherein the learned Judge observed:

“The position of a society registered under the Societies Registration Act, 1860, is like that of a club or a joint stock company…”

34. He also relies on the observations of Mr. Justice Bhagwati in Satyavart Sidhantalnkar v. Arya Samaj, wherein the learned Judge observed as follows (p. 350):

“…I prefer to be guided by the observations of Lord Lindley which I have referred to above and hold that in spite of the provisions contained in ss. 6, 7 and 8 of the Societies Registration Act as regards suits by and against societies, non-abatement of suits and enforcement of judgment against the societies, which I have already referred to above, it is competent to the society to sue or be sued in the name of the society, to be sued in its registered name, the society on its registration under the Societies Registration Act having come into existence as a legal entity apart from the members constituting the same. If it were necessary to do so, I would adopt the terminology which has been adopted in this connection by Cozens-Hardy M.R in Osborne v. Amalgamated Society of Railway Servants, where he describes a registered trade union as a ‘species of quasi corporation’…”.

35. So far as the first case is concerned, it may be that so far as the principles governing the affairs of the society are concerned, the principles governing clubs or joint-stock companies are applicable. So is the case even in regard to caste matters in important particulars. Therefore, merely because the principles which govern a club or a joint-stock company may be applicable to an association or a society, it cannot follow that the society has got the same position as a corporation.

36. With regard to the second case, with respect to the learned Judge, it is doubtful if it can be inferred that the society may sue in its own name in face of the provisions of ss. 6, 7 and 8 of the Societies Registration Act. In Taff Vale Railway v. Amalgamated Society of Railway Servants, which case was cited by Mr. Justice Bhagwati in his judgment, Lord Brampton specifically put the matter thus (p. 442):

“…The very omission from the statute of any provision authorizing and directing that it shall sue and be sued in any other name than that given to it by its registration appears to me to lead to no other reasonable conclusion than that in so creating it, it was intended by the Legislature that by that name and by no other it should be known, and that for all purposes that name should be used and applied to it in all legal proceedings unless there was any other provision which militated against such a construction, as, for instance, in the case of trustees, by s. 9 of the same act, who hold real and personal property of the society…”

37. Assuming, however, that it is permissible to a society to sue in its own name, it does not alter the question. I will assume that the society is a legal entity apart from the members constituting it and is entitled to sue and be sued in its own name. This will not affect the real question that we have to decide, as the subsequent discussion will show.

38. In order, therefore, to arrive at a conclusion whether or not societies registered under the Societies Registration Act, 1860, fall within entry 44 of the Union List, we must consider the other related items. The first is entry 43 of the Union List, which is as follows:

“Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co-operative societies.”

39. Then comes entry 44 which is as follows:

“Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.”

40. Along with these two entries we must also consider the entry 32 of List II (State List) which is as follows:

“Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.”

41. It is with reference to these entries that the question must be decided. The principles of interpretation of the entries contained in these Lists have come up before Courts on several occasions and the principles are now crystallized. It is no doubt true that a liberal interpretation should be given to all the entries in the Lists. But where there is an apparent overlapping of the subject-matters in the Union and the State Lists, certain principles become applicable. In In re C.P Motor Spirit Act8, the question arose whether a tax on the sale of motor spirit fell within entry 45 of the Federal List which reads as “duties of excise on tobacco and other goods manufactured or produced in India” (with certain exceptions) or within entry 48 of the Provincial List which reads as “Taxes on the sale of goods and on advertisements”. Gwyer, C.J, in the leading judgment of the Federal Court expressed himself as follows (p. 10):

“…It is a fundamental assumption that the legislative powers of the Centre and Provinces could not have been intended to be in conflict with one another, and therefore we must read them together and interpret or modify the language in which one is expressed by the language of the other…. But the underlying principle in the two cases must be the same, that a general power ought not to be so construed as to make a nullity of a particular power conferred by the same Act and operating in the same field, when by reading the former in a more restricted sense, effect can be given to the latter in its ordinary and natural meaning. So in (1887) 12 A.C 575 (Bank of Toronto v. Lambe) at p. 587, where a Provincial Legislature in Canada had imposed a tax upon banks carrying on business in the Province, varying in amount with the paid up capital and with the number of the offices of the bank, whether or not the bank's principal place of business was within the Province, it was argued that even if the tax imposed by the Act was direct taxation and therefore within the power of the Provincial Legislature under Sec. 92, British North America Act, it was nevertheless invalid because it was legislation relating to banking and the incorporation of banks, the making of laws on which was by S. 91 of the Act vested solely in the Dominion Parliament. The Judicial Committee rejected this argument. They pointed out that in (1882) 7 A.C 96, (Citizens Insurance Co. v. Parsons), to which reference has already been made, it was found absolutely necessary that the literal meaning of the words defining the powers vested in the Dominion Parliament should sometimes be restricted, ‘in order to afford scope for powers which, are given exclusively to the Provincial Legislature’;…”

42. A similar question came up for consideration before the Privy Council in the case of Governor General v. Province of Madras . 1945 47 Bom. L.R 629, P.C S.C [1945] A.I.R P.C 98., with regard to the Madras General Sales Tax Act of 1939. It was contended that so far as the Madras Act purported to levy a tax on first sales in Madras on goods manufactured or produced in India, with certain exceptions, it was ultra vires and beyond the competence of the Provincial Legislature. The contention on behalf of the Centre was that the tax fell within entry 45 of the Federal Legislative List, while on behalf of the Province the contention was that it fell within entry 48 of the Provincial Legislative List. The Judicial Committee, after referring to the provisions of s. 100 of the Constitution Act (Government of India Act, 1935), said (p. 632):—

“…Their Lordships do not doubt that the effect of these words is that, if the legislative powers of the Federal and Provincial Legislatures, which are enumerated in List I and List 2 of the Seventh Schedule, cannot fairly be reconciled, the latter must give way to the former. But it appears to them that it is right first to consider whether a fair reconciliation cannot be effected by giving to the language of the Federal Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it, and equally giving to the language of the Provincial Legislative List a meaning which it can properly bear.”

43. These observations have been approved by the Supreme Court in the State of Bombay v. F.N Balsara.10 In para. 7 of this judgment, Fazl Ali, J. says (p. 322):

“Since the enactment of the Govt. of India Act, 1935, there have been several cases in which the principles which govern the interpretation of the Legislative Lists have been laid down. One of these principles is that none of the items in each List is to be read in a narrow or restricted sense, vide ‘United Provinces v. Atiqa Begum.’ The second principle is that where there is a seeming conflict between an entry in list II and an entry in List I, an attempt should be made to see whether the two entries cannot be reconciled so as to avoid a conflict of jurisdiction. This principle has been stressed in a number of cases by the Federal Court as well as by the Privy Council…”

44. I may also refer to the observations of the Supreme Court in Ramkriskna Ramnath v. Kamptee Muncpl,11, which are to the following effect (p. 13):

“…It is natural enough, when considering the ambit of an express power in relation to an unspecified residuary power, to give a broad interpretation to the former at the expense of the latter. The case however is different where as in the Constitution Act, there are two complementary powers, each expressed in precise and definite terms. There can be no reason in such a case for giving a broader interpretation to one power rather than to the other; and there is certainly no reason for extending the meaning of the expression ‘duties of excise’ at the expense of the Provincial power to levy taxes on the sale of goods.”

45. It is in this light, therefore, that entries 43 and 44 of the Union List and entry 32 of the State List must be considered. A reference to entry 32 of the State List shows that “incorporation, regulation and winding up of corporations, other than those specified in List I (Union List, entries 43 and 44), and universities” are excepted from the Union List. Further “unincorporated trading, literary, scientific, religious and other societies and associations” and “co-operative societies” are also excepted from the Union List. The emphasis would appear to be on the word “unincorporated” used in connection with “trading, literary, scientific, religious and other societies and associations”. If an association or society is unincorporated, then it may not fall within the Union List. The question, therefore, that is pertinent to be decided is not whether or not an association or a society is a legal entity or a quasi-corporation, but whether it is incorporated or unincorporated. If this is borne in mind, then it is amply clear that entries 43 and 44 of the Union List would cover only those societies and associations which are incorporated; and those which may have legal entity but which are not incorporated will not fall within the Union List. The suggested construction would he unduly stretching the language of entries 43 and 44 of the Union List. What I am doing is to refuse to stretch the language and confine it within its legitimate limits and thus avoid conflict between the two jurisdictions. The material question, therefore, to be decided is whether or not societies and associations registered under the Societies Registration Act, 1860, are incorporated, and not whether they are legal entities or quasi-corporations, and it is this question that I must now proceed to consider.

46. A corporation aggregate has been denuded as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations, of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence (See Halsbury's Laws of England, 3rd ed., Vol. 9, p. 4, para 3). It is true, as stated in the same volume at page 22, para 34, that no particular words are necessary for the creation of a corporation, and any expression showing an intention to incorporate will be sufficient. I should think that the least that one would expect would be that it should be a legal personality capable of owning property and acting through agents.

47. In this case, the provisions of the Societies Registration Act would show that the society is not created a personality so as to be able to own property. Instead of that, the usual expedient of the office of trustees is adopted in whom the properties of the society must vest. It is no doubt true that the society is recognized as a legal entity for the purpose of beneficial ownership of property and continuing perpetually. Even so, the provisions fall far short of incorporation of the society as contemplated within the terms of entries 43 and 44 of the Union List. Mr. Justice Bhagwati was not prepared to hold, and he could not possibly hold, that a society registered under the Societies Registration Act would be an incorporated society. In this respect, I may refer usefully to the case of Taff Vale Railway v. Amalgamated Society of Railway Servants, which has been referred by Mr. Justice Bhagwati, in which Lord Lindley (at pp. 444-445) observed:

“It may acquire property, but, not being incorporated, recourse is had to the old well-known machinery of trustees for acquiring and holding shch property, and for suing and being sued in respect of it.”

48. In Mackenzie-Kennedy v. Air Council . [1927] 2 K.B 517., in the Court of Appeal, Lord Justice Atkin, after citing a passage from the judgment of Littledale, J. in The Conservators of the River Tone v. Ash,13 which I have reproduced from Halsbury's Laws of England, Vol. 9, proceeds as follows (p. 534):

“…The learned Judge goes on to consider whether in the case of the Conservators they have a name, perpetual succession, and a right to sue and be sued in their corporate name. It must be admitted and most, if not all, of these characteristics of a corporation attached to the Air Council. They have a name in which they can sue and be sued, and it would appear that they are to have perpetual succession, for by the Act of 1917, s. 8, sub-s. 3, the property of the Air Board is to be transferred to them, and by s. 8, sub-s. 4, it is contemplated that the property of the Admiralty or Secretary of State for War may be transferred to them by Order in Council, I find, however, that in fact under the Order in Council the property of the Secretary of State for War, and such property as the Air Council may acquire under the powers transferred to them, is vested not in the Air Council but in the President. I also bear in mind that there were in existence before 1917 various Acts expressly constituting Departments to State Corporations. I need only refer to the Acts incorporating for certain purposes the Secretary of State in Council of India (Government of India Act, 1858, s. 65); the Postmaster-General (Post Office Duties Act, 1840, s. 67); and the Commissioners of Public Works (Commissioners of Works Act, 1892, s. 1). If it had been intended to incorporate the Air Council one would have expected the well known precedents to be followed with express words of incorporation, and express definition of the purposes for which the department was incorporated.”

49. In the present case the society cannot sue in its own name nor can it hold property though it has got perpetual succession. The same considerations apply in this case also.

50. In contrast to the Societies Registration Act, we have the equally important Acts of Co-operative Societies, both Central and Provincial. In both these Acts there are distinct provisions which create corporations of such societies. If it were intended to incorporate a society registered under the Indian Societies Registration Act, 1860, one should have found distinct words to that effect. On the whole, I am of the view that looking to the provisions of the Act, societies, registered under that Act cannot be said to have been incorporated. If they are not incorporated, they must distinctly form the subject-matter of the State List, and if that is so, s. 2, cl. (13), Bombay Public Trusts Act, would be valid.

51. It also does not appear that this is contrary to the intention of the framers of the Constitution. Entry 43 of the Union List expressly excludes co-operative societies from that List and includes it in entry 32 of the State List: this notwithstanding the fact that there is a Central Co-operative Societies Act, being Act No. II of 1912. That Act also provides for incorporation of a society registered under that Act: and if the State Legislature could legislate with regard to such a society, even if its objects are not confined to one State, I do-not see anything wrong if it was equally intended that societies registered under the Indian Societies Registration Act should be included within the State List.

52. There is another way of looking at this matter, and that is, to consider what is the essential purpose of the Act which is being challenged. If the essential purpose of the Act is to legislate with regard to a subject-matter which falls within, the State List and it only incidentally encroaches on something which falls within the Union List, the Act cannot be invalidated on that ground. This is the rule of pith and substance which is also firmly established by judicial decisions. In this connection, the following remarks (occurring in para. 8) made by the Supreme Court in State of Bombay v. F.N Balsara, may be quoted:

“…It is well settled that the validity of an Act is not affected if it incidentally trenches on matters outside the authorised field, and therefore it is necessary to inquire in each case what is the pith and substance of the Act impugned. If the Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another legislature…”

53. Now, the essential and main purpose of the Act and its provisions is registration and regulation of public trusts, a necessity felt for a long time. It is only incidentally that a society registered under the Societies Registration Act is included, if it has for its object charitable purposes, within the definition of “trust”. Applying, therefore, this rule also it would appear that the impugned legislation is perfectly valid even with regard to the societies registered under this Act.

54. However much, therefore, I may wish that this particular society should have been been exempted from the operation of the Bombay Public Trusts Act, 1950, I must hold that the provisions of s. 2(13) of the Bombay Public Trusts Act are not invalid even with regard to societies registered under the Societies Registration Act, 1860. I would, therefore, dismiss the appeal.

55. Per Curium: We have differed on one point and that is whether the Bombay Public Trusts Act applies to a society registered under the Societies Registration Act, and having its objects not confined to the State of Bombay.

56. The papers be, therefore, placed before such Judge as the learned Chief Justice may appoint.

57. The appeal was accordingly heard by Gokhale, J.

58. M.P Amin, with K.J Abhyankar, for the appellant.

59. Y.V Chandrachud, Government Pleader, for the respondent.

60. Gokhale, J.:— This appeal raises the question whether the Bombay Public-Trusts Act, 1950, applies to a society registered under the Societies Registration Act, 1860, and having its objects not confined to the State of Bombay, now, so far as this case is concerned, the State of Maharashtra. The appeal has been referred to me as there has been a difference of opinion between Mr. Justice Mudholkar, as he then was, and Mr. Justice Patel.

61. The appellant is the Servants of India Society founded by the late Mr. G.K Gokhale on June 12, 1905. It is a society registered under the Societies Registration Act (XXI of 1860), and shall hereafter be referred to as the Society. When the Bombay Public Trusts Act (XXIX of 1950), which shall hereafter be referred to as the Act, came into force, the society applied under s. 18(1) of that Act for registration and, in an enquiry in connection with that application held by the Assistant Charity Commissioner under s. 19, contended that the provisions of the Act could not apply to the Society on the ground that it was registered under the Societies Registration Act and was a Corporation and the State Legislature had no power to pass legislation purporting to govern such a society, though it was not disputed that the objects of the Society were charitable. It is not necessary for the purpose of this appeal to go into the other contentions raised on behalf of the Society in the enquiry. The aforesaid contention of the Society was, however, negatived by the Assistant Charity Commissioner, who ordered the certificate of registration to issue under the Act on December 8, 1953. This decision was upheld in appeal by the Charity Commissioner on May 21, 1954. The Society, therefore, filed an application under s. 72 of the Act challenging the decision of the authorities under the Act on the ground that the Society being registered under the Societies Registration Act, was a Corporation and the State Legislature would have no power to legislate about it by reason of entry 44, Seventh Schedule, List I, Union List, of the Constitution. That application being Miscellaneous Application No. 204 of 1954 was heard by the learned District Judge of Poona, who negatived the contention of the Society that it was a corporation and held that it was an unincorporated body and the State Legislature was competent to pass the Act under entry 32 of List II—State List of the Constitution. He also held that the Society was a public trust within the definition of s. 2(13) of the Act and, therefore, liable to be registered under the provisions of the Act. Consequently the application of the Society came to be dismissed by him. It is against this dismissal that the present appeal has been filed; and in this appeal, when it was heard by Mudholkar and Patel, JJ., the same two contentions were raised, viz., whether the Society is a public charitable trust and whether the State Legislature was competent to make a law regulating a society of this type, the objects of which were not confined to one State. On the first question, both the learned Judges held that the Society was a public charitable trust, but they differed, as already stated, on the other point and that consequently is the only point which I am required to consider in this, appeal.

62. Mr. Amin, learned counsel appearing on behalf of the appellant-Society, contends that all societies registered under the Societies Registration Act would be corporations or, at any rate, quasi-corporations; and since the Society's objects are not confined to this State, only Parliament can pass legislation about it by virtue of entry 44, List I-Union List, of the Seventh Schedule, of the Constitution. It, therefore, becomes necessary to refer to some of the entries in the Seventh Schedule to the Constitution, to which reference has been made in the course of arguments before me by Mr. Amin as well as the learned Government Pleader, who appeared on behalf of the Charity Commissioner.

63. From List I-Union List, the following entries were referred to:—

“43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co-operative societies.

44. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.

85. Corporation tax.”

64. From List II-State List, the following entry was referred to:—

“32. Incorporation, regulation and winding up of corporations other than, those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.”

65. From List III-Concurrent List, the following entries were referred to:—

“10. Trust and Trustees.

28. Charities and charitable institutions, charitable and religious endowments and religious institutions.”

66. I may state that the two aforesaid entries in the Concurrent List are not referred to in the judgments of Mr. Justice Mudholkar and Mr. Justice Patel, though the learned Government Pleader stated that he had relied upon those entries in support of his case. According to Mr. Amin, entries 43 and 44 of the Union List as well as entry 32 of the State List clearly define the powers of the Union and State Legislatures regarding corporations. Entry 43 refers to trading corporations, including banking, insurance and financial corporations, but does not include co-operative societies. Entry 44 refers to incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but excludes universities. Entry 32 of the State List, is divided into two parts. The first limb of that entry refers to corporations other than those specified in List I, i.e non-trading corporations with objects confined to the State, and universities, which are excluded in entry 44. The second limb of entry 32 refers to unincorporated societies or associations, and co-operative societies which are excluded in entry 43. Mr. Amin argues that a corporation or a quasi-corporation with objects not confined to a State, must fall within entry 44 of the Union List and cannot consequently fall in either the first or the second limbs of entry 32 of the State List. It is necessary to mention that what is challenged before me is not the vires of the Act but that part of it which defines the expression “public trust”. Section 2(13) of the Act is in these terms:—

2(13). “‘Public trust’ means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.”

67. It is contended that the appellant-Society cannot be governed by this definition since it is a corporation or a quasi-corporation by virtue of its registration under the Societies Registration Act and, consequently, it is incompetent to the State Legislature to bring such societies with objects not confined to one State within the ambit of the provisions of the Act. Now, once it is held, as it has been held in this case, that the society constitutes a public charitable trust, I fail to see why the State Legislature cannot pass legislation governing such a society by virtue of entries 10 and 28 in the Concurrent List which refer to trusts and trustees and charities and charitable institutions, without any reference to their objects being confined to one State or not. It is not contended before me that Parliament has enacted any legislation in respect of trusts or charitable institutions which is in conflict with the provisions of the Act, and if that be so, in my judgment, it would be difficult to hold that the Act, in so far as it brings the Society which is a public charitable trust within its scope, is not a valid legislation. But Mr. Amin's answer to this is that once the Court “holds that the Society is a Corporation or quasi-corporation with objects which are India-wide, no other entry in the Act can come into operation except entry No. 44 which must be given a liberal and not a narrow interpretation on the decided authorities.

68. Now, the principles governing the interpretation of the entries in the three Lists in the Seventh Schedule of the Constitution are well settled. A number of authorities were cited before me on this point and the following principles can indisputably be deduced from these authorities:—

(1) In construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon them, so that the same may have effect in their widest amplitude. This principle would equally apply to the construction of the items in the three Lists. None of the items should be read in a narrow or restricted sense and each general word should be held to extend to all ancillary or subsidiary matters which can be fairly and reasonably comprehended in it. See The United Provinces v. Atiqa Begum and Navinchandra Mafatlal v. Commr. I.T.

(2) When considering the ambit of an express legislative power in relation to an unspecified residuary power, a broad interpretation can be given to the former at the expense of the latter. The case, however, is different where under the Constitution there are two complementary powers each expressed in precise and definite terms. In such a case, there is no justification for giving a broader interpretation to one power rather than to the other. See Ram Krishna Ramnath Agarwal of Kamptee v. Secretary, Municipal Committee Kamptee. It would, therefore, follow that an item in the Union List cannot be interpreted at the expense of a complementary item in the State List, when both are in precise and definite terms.

(3) An attempt must always be made to reconcile two different legislative powers so as to avoid a conflict. As was observed by Gwyer, C.J in In re the Central Provinces and Berar Act No. XIV of 1938 (p. 49):

“…It is a fundamental assumption that the legislative powers of the Centre and “Provinces could not have been intended to be in conflict with one another, and, therefore, we must read them together and interpret or modify the language in which one is expressed by the language of the other…”

69. He, however, further observed (pp. 49-50):

“…that a general power ought not to be so construed as to make a nullity of a particular power conferred by the same Act and operating in the same field, when by reading the former in a more restricted sense effect can be given to the latter in its ordinary and natural meaning.”

70. See also Bank of Toronto v. Lambe and Citizens Insurance Company of Canada v. Parsons, referred to by Gwyer, C.J in that case. It would, therefore, seem to follow that in an attempt to reconcile conflicting powers it has to be seen whether a fair reconciliation is not possible by giving to an item in the Union List a meaning which, if less wide than it might in another context bear, is yet one that can be properly given to it and equally giving to the language of the entry in the State List a meaning which it can properly bear. Governor-General in Council v. Province of Madras.

(4) When the validity of a legislation is challenged on the ground that though purporting to deal with a subject in one List it touches also on a subject in another List, the impugned statute may be examined in the light of the rule evolved by the Judicial Committee of the Privy Council to ascertain its ‘pith and substance’ or its ‘true nature and character’ for the purpose of determining whether it is legislation with respect to matters in this List or in that List, Subrahmanyan Chettiar v. Muttumami Goundan, Prafulla Kumar Mukherjee v. Bank of Commerce, Limited, Khunla, The State of Bombay v. F.N Balsara. This doctrine of ‘pith and substance’ has been recently explained in the decision of the Supreme Court in A.S Krishna v. Madras State, where Mr. Venkatarama Ayyar, J. observed (p. 301):

“…If a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment….”

71. Mr. Amin contends that in the present case there is no question of any reconciliation between entry 44 in the Union List and entry 32 in the State List, as there is no overlapping and, therefore, there is no question also of invoking the doctrine of ‘pith and substance’. According to Mr. Amin, the Society having been registered under the Societies Registration Act gets the status of a corporation or a quasi-corporation and the objects of the Society being not confined to one State, the first part of entry 32 cannot apply to such a society, but only Parliament can pass legislation regulating such society under entry 44 of the Union List. Mr. Amin further contends that the second part of entry 32 dealing with unincorporated societies or associations refers to wholly different legal bodies and the two entries cannot be mixed up.

72. In support of his argument that the Society is a corporation, Mr. Amin has invited my attention to Halsbury's Laws of England, 3rd edn, Vol. 9, at page 3, where corporations have been divided into two main classes, namely, corporations aggregate and corporations sole. A corporation within either of these classes may be an ecclesiastical corporation or a lay corporation, the latter class of corporations being divided into trading and non-trading corporations. A ‘corporation aggregate’ is defined by Halsbury as follows (p. 4):

“A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence.”

73. According to Halsbury, some of the essential characteristics of a corporation are that its identity is continuous, that is to say, it has perpetual succession, that it has a distinct legal entity, that it must have a name and, in the case of a corporation aggregate, as a general rule, it can only act or express its will by deed under the common seal. Under the English law, a corporation may be created by charter or by statute, and in the latter case a corporation may be created by the authority of Parliament expressed either in a special statute creating a particular corporation or corporations, or in a general statute, under which any number of corporations may be created on complying with its terms. To constitute a corporation, however, it is not necessary that any particular form of words should be used in the statute; it is sufficient if the intent to incorporate be evident. Halsbury also refers to a third class of corporations, namely, quasi-corporations, which only partially fulfil the definition of a corporation. Instances of quasi-corporations sole are the Lord Chancellor, the Lord Chief Justice and the Chamberlain of London. Churchwardens and overseers formerly constituted a quasi-corporation aggregate, holding land for parochial purposes, and churchwardens continue to possess a quasi-corporate capacity to hold personal property for church purposes. According to Halsbury, the distinction does not seem to be of importance, except for the purpose of classification and to draw attention to the fact that bodies of this character are not fully constituted corporations. See foot-note (a), pages 3-4, of Halsbury's Laws of England, 3rd edn., Vol. 9, See also Grant's Practical Treatise on the Law of Corporations, page 661. Corpus Juris Secundum, Vol. 18, in dealing with the subject of corporations, refers to quasi-corporations in S. 21 at page 399, in these terms:—

“In addition to corporations proper, there exist so called quasi corporations or corporations sub modo. These consist of associations and government or political institutions or officers which are not corporations in the full sense, but which are invested by law with some of the attributes of a corporation, as the capacity to sue or to be sued as a corporate body, to have a continued existence unaffected by death or disability of members, or to make particular contracts or hold particular property or rights as a corporate body.

In this class, for example, the courts have included countries, towns or townships, parishes, school towns or districts, and the like; drainage, leavee, or reclamation districts; certain state, county, or municipal boards or officers; and a society not expressly incorporated, but which was invested by law with the proprietorship of lands and which had been recognized as a body in the courts and by the legislature.”

74. In support of his argument, that the Society is a corporation or a quasi-corporation, Mr. Amin has relied on certain decisions. The first is The Cantonment Committee, Poona v. Barjorji Bamanji, where the Poona Cantonment Committee was sued to recover damages for breach of conservancy contract and the Committee resisted the suit on the ground that it was not properly framed since all the members of the Committee were not parties to the suit and it was held that the rules by which the Committee was created did by implication, though not by express words, create the committee a corporation for the purposes of the conservancy of the cantonment and, therefore, it could sue and be sued in its own name on contracts entered into in its corporate character. It appears from the judgment of Mr. Justice Jardine that the Court considered the evidence in the case as well as the rules of the committee and came to the conclusion that the committee did act in a quasi corporate manner. In the case of District School Board, Bijapur v. Bhagwan it was held by a Division Bench of this Court that a District School Board constituted under s. 3, cl. (1), of the Bombay Primary Education Act, 1923, as amended by Act XV of 1927, is a corporation and is liable to be sued as such. It was observed by Mr. Justice Patkar in this case that the general scheme of the Bombay Primary Education Act was that the members of the School Board could not act individually and had to act collectively and that the School Board has a perpetual succession and capacity to act as an individual. On that ground he held that the School Board was a corporation. It has to be observed that the School Board was itself constituted under the Bombay Primary Education Act. In Krishnan v. Sundaram . 1940 43 Bom. L.R 562., Mr. Justice Kania held that the position of a society registered under the Societies Registration Act, 1860, is like that of a club or a joint stock company, and in order to redress a wrong done to the society or to recover moneys or damages alleged to be due to the society, the action should be brought by the society itself. This ruling, however, is not an authority for the proposition that a society registered under the Societies Registration Act would be a corporation.

75. Mr. Amin, however, places very strong reliance on the judgment of Mr. Justice Bhagwati, as he then was, in Satyavart Sidhantalankar v. Arya Samaj . 1945 48 Bom. L.R 341., in support of his argument that the appellant-Society is a corporation or, at any rate, a quasi-corporation. In the case before Mr. Justice Bhagwati, one Satyavart and four others were members of a society called the Arya Samaj, Bombay, and they brought a suit describing themselves as “members of the Arya Samaj Bombay, on behalf of themselves and all other members of the Arya Samaj, Bombay, being a society registered under the Societies Act XXI of 1860”. Defendant No. 1 was described as “Vijayashankar Mulshankar, President of the Arya Samaj, Bombay”, “as representing the said Society of Arya Samaj, Bombay” while the said Vijayashankar and two others were impleaded as defendants Nos. 2 to 4 and described as “all the three being members of the Managing Committee of the Arya Samaj, Bombay, on behalf of themselves and all the other members of the Managing Committee of the society of the Arya Samaj, Bombay, registered under the Societies Act XXI of 1860”. As there was some doubt about the title of the suit, the original plaint and the written statement in Suit No. 489 of 1945 on the Original Side of this Court were sent for. Paragraph 1 of the plaint in that case contained this statement: “The plaintiffs in suing defendant No. 1 are in reality suing the said society”, and the written statement contained the statement that the suit was instituted by the plaintiffs on behalf of themselves and all other members of the society, that is to say, on behalf of the society itself, and the plaintiffs have not obtained the sanction or consent of the society for the institution of the suit and they were, therefore, not entitled to maintain it. It was also contended that the society could not be made both plaintiff and defendants as was disclosed in the title as well as para. 1 of the plaint and, therefore, the suit as framed was bad in law and not maintainable. It was on the basis of these pleadings that issue No. 2 was raised as to “Whether the society in the suit is both the plaintiff and the defendant and whether the suit as framed is maintainable”. The title in the plaint clearly showed that it was a suit against Vijayashankar, President of the Arya Samaj, and was not a suit against the society Arya Samaj in its own name. Mr. Justice Bhagwati, however, considered the question as to whether the Arya Samaj was a corporation and came to the conclusion, after exhaustive consideration of the provisions of the Societies Registration Act, that the society registered under the said Act was a legal entity, apart from the members constituting the same and, therefore, it could sue and be sued in its own name. On the second issue, Mr. Justice Bhagwati allowed the plaintiffs to amend the plaint by describing themselves as members of the Arya Samaj, Bombay, on behalf of themselves and all other members of the Arya Samaj, Bombay, being a society registered under the Societies Registration Act XXI of 1860, “except the defendant”. Mr. Amin did not seriously dispute that in view of the description of defendant No. 1 in the title of the plaint in the case before Mr. Justice Bhagwati, the suit could not have been regarded as a suit brought against the Arya Samaj in its own name and, therefore, the observations of Mr. Justice Bhagwati would be obiter. But he contends that the view of Mr. Justice Bhagwati that a society registered under the Societies Registration Act would have legal existence apart from the members” constituting the same and would acquire all the essential attributes of a corporation, is entitled to great weight and should be followed. Mr. Amin does not dispute that the Societies Registration Act by itself does not expressly confer the status of a corporation on societies registered under its provisions. But he argues that a society being registered under the Societies Registration Act, it will have a perpetual succession or a continuous identity and would be a legal entity distinct from its members and, therefore, would be a corporation.

76. In order to appreciate this argument, it is necessary to refer to some of the provisions of the Societies Registration Act (XXI of 1860). The preamble of the Act shows that it was enacted for improving the legal condition of societies established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge, the diffusion of political education or for charitable purposes. Under s. 1, any seven or more persons associated for any literary, scientific or charitable purpose, or for any such purpose as is described in s. 20 of this Act, may, by subscribing their names to a memorandum of association and filing the same with the Registrar of Joint Stock Companies, form themselves into a society. Under s. 2, the memorandum of association is to contain the name of the society, the objects of the society and the names, addresses, and occupations of the governors, council, directors, committee or other governing body to whom, by the rules of the society, the management of its affairs is entrusted. Under s. 5, the property, moveable and immovable, belonging to a society registered under the Societies Registration Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described the property of the governing body of such society by their proper title. Under s. 6, every society registered under this Act may sue or be sued in the name of the president, chairman or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in dafault of such determination, in the name of such person as shall be appointed by the governing body for the occasion. Under s. 7, no suit or proceeding in any Civil Court shall abate or discontinue by reason of the person by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit or proceedings shall be continued in the, name of or against the successor of such person. Under s. 8, if a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, moveable or immoveable, or against the body of such person or officer, but against property of the society. Under s. 14, if upon the dissolution of any society registered under the Act there shall remain after the satisfaction of all its debts and liabilities any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by the Court. It is contended by Mr. Amin that Mr. Justice Bhagwati held in the case of Satyavart Sidhantalankar that in spite of the provisions contained in ss. 6, 7 and 8 of the Societies Registration Act it was competent to a society registered under the said Act to sue or be sued in the registered name of the society, because the society on its registration became a legal entity apart from the members constituting the same. In coming to this conclusion Mr. Justice Bhagwati relied on Taff Vale Railway v. Amalgamated Society of Railway Servants . [1901] A.C 426.. That was a case where a trade union registered under the English Trade Union Acts of 1871 and 1876 was sued by the Railway, which claimed an injunction against the trade union on account of a strike which had taken place in August 1900 among that railway's servants. The general secretary as well as the organising secretory of the Amalgamated Society were also impleaded as defendants. A summons was taken out on behalf of the trade union to strike out its name on the ground that it was neither a corporation nor an individual and could not be sued in a quasi-corporate or any other capacity. Mr. Justice Farwell, however, held that though a trade union was neither a corporation nor an individual nor a partnership between a number of individuals, the Trade Union Act having given it a capacity for owning property and acting by agents, such capacity involved the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. He, therefore, dismissed the summons taken out by the trade union. The appeal Court, however, held that a trade union registered under the Trade Union Act could not be sued in its registered name, and reversed the decision of Farwell, J. The railway company filed an appeal to the House of Lords, and the House of Lords reversed the decision of the appellate Court and restored the decision of Farwell, J. holding that a trade union registered under the Acts of 1871 and 1876 could be sued in its registered name. Mr. Justice Bhagwati in his judgment referred to the speeches of Lord Brampton and Lord Lindley in this case. It would he, however, clear from the observations of Lord Brampton at page 442 that as there was no provision in the Trade Union Act of 1871 authorising and directing that the trade, union shall sue and be sued in any other name than that given to it by registration, Lord Brampton was of the view that the Legislature in creating a trade union intended that for all purposes the name of the trade union should be used in all legal proceedings, though under s. 9 of the same act the trustees were to hold real and personal property of the society. In the present case, however, s. 6 of the Societies Registration Act provides that a society registered under that Act may sue or be sued in the name of the president, chairman or principal secretary or trustees as shall be determined by the rules and regulations of the society and in default of such determination in the name of such person as shall be appointed by the governing body for the occasion. Mr. Justice Bhagwati, however, relied on the observations of Lord Lindley at page 445, who held that the use of the name of the registered trade union in legal proceedings was a more convenient mode of proceeding than that which would have to be adopted if the name could not he sued and though the use of the name was not compulsory it was at least permissive. It is not necessary for the purpose of this appeal to consider the question whether a society registered under the Societies Registration Act could sue or be sued in its own name in spite of the provisions of s. 6 of the Societies Registration Act, But the case Taff Vale Railway v. Amalgamated Society of Railway Servants, on which Mr. Justice Bhagwati relied, does not, in my judgment, support the proposition that a society registered under the Societies Registration Act would be a corporation. Lord Lindley's observations in the case show that he regarded a trade union registered under the Trade Union Act as “an unincorporated society”. The observations of Lord Lindley on this point at pages 444-445 may be usefully quoted:—

“…The Act does not in express terms say what use is to be made of the name under which the trade union is registered and by which it is known. But a trade union which is registered under the Act must have a name: See ss. 14, 16, and Seed. I.; it may acquire property, but, not being incorporated, recourse is had to the old well-known machinery of trustees for acquiring and holding such property, and for suing and being sued in respect of it (ss. 7, 8, 9). The property so held is, however, the property of the union: the union is the beneficial owner. My lords, a careful study of the Act leads me to the conclusion that the Court of Appeal held, and rightly held, that trade unions are not corporations; but the Court held further that, not being corporations, power to sue and be sued in their registered name must be conferred upon them; and further that the language of the statutes was not sufficient for the purpose. Upon this last point I differ from them. The Act appears to me to indicate with sufficient clearness that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as well as for business and other purposes.”

77. It will be clear, therefore, that Lord Lindley accepted the view of the Court of Appeal which was also the view of Farwell, J., that the trade union registered under the Trade Union Act was not a corporation, but differed from the view of the Court of Appeal and held that the use of the registered name of the trade union in legal proceedings would be at least permissive. Under s. 5 of the Societies Registration Act, as already indicated, property belonging to the society, if it is not vested in trustees, is to be deemed to be vested for the time being in the governing body of such society and that, in my opinion, would also indicate that the societies registered under the Societies Registration Act would not be corporations.

78. The learned Government Pleader has also pointed out that Mr. Justice Bhagwati refers at p. 350 in Satyavart Sidhantalankar's case to the terminology said to have been adopted by Cozens-Hardy M.R in Osborne v. Amalgamated Society of Railway Servants,17 with reference to a registered trade anion as “a species of quasi-corporation”; but in fact that was how a registered trade union was described in the arguments addressed to the learned Master of the Rolls, and the judgment of Cozens-Hardy M.R does not clearly indicate whether he accepted the argument that a registered trade union would be a species of quasi-corporation. There is some force in what the learned Government Pleader has urged in this connection. As I have already indicated, it is not necessary in the present case to consider whether a society registered under the Societies Registration Act can sue or be sued in its own name despite the provisions of s. 6 of that Act; and it is, therefore, not necessary for me to consider the argument of the learned Government Pleader that the decision of Mr. Justice Bhagwati may have perhaps to be reconsidered on this point.

79. It is contended by the Government Pleader that societies registered under the Societies Registration Act cannot be regarded as corporations within the meaning of the term ‘corporation’ used in the entries in the Union and the State Lists under the Constitution. In the first instance, it is argued that a corporation is a creature of statute, and in India, even prior to the Societies Registration Act, which was enacted in 1860, as well as after 1860, Acts have been passed expressly creating corporations, and it is urged that the framers of the Constitution could not have ignored this legislative practice and, therefore, could not have used the word ‘corporation’ so as to include in its ambit bodies which, though unincorporated, would have attributes similar to those of a corporation so as to be described as quasi-corporations. It cannot be disputed that reference to legislative practice may be admissible for cutting down the meaning of a word in order to reconcile conflicting provisions in two legislative Lists. See In Re the Central Provinces and Berar Act No. XIV of 1938 and Navinchandra Mafatlal v. Commr. I.T. On this point, the learned Government Pleader referred to a number of statutes creating corporations both prior to and after the Constitution. Before 1860, there were, for instance, four Acts, viz., Act No. II of 1857 establishing the University at calcutta; act no. xix of 1857, an act for the incorporation and regulation of Joint-Stock Companies and other Associations; Act No. XXII of 1857 incorporating and establishing the University of Bombay; and Act No. XXIII of 1857, incorporating and establishing the University of Madras. Section 1 of Act XXII of 1857 constitutes and declares the University of Bombay as one Body Politic and states that

“such Body Politic shall by such name have perpetual succession and shall have a common seal, and by such name sue and be sued, implead and be impleaded, and answer and be answered unto, in every Court of Justice within the territories in the possession and under the government of the East India Company.”

80. Similar provision as to incorporation is to be found in all the other Acts. The other Central Acts to which my attention was invited are the Co-operative Societies Act (II of 1912), the Red Cross Societies Act (XV of 1920), the Cantonments Act (II of 1924), the Bar Councils Act (XXXVIII of 1926), the Medical Councils Act (XXVII of 1933), the Damodar Valley Corporation Act (XIV of 1948) and the Employees' State Insurance Act (XXXIV of 1948). All these Acts have specific sections incorporating bodies created by these Acts. The Companies Act of 1913 as well as the Companies Act of 1956 expressly provide for incorporation of companies. The Bombay Co-operative Societies Act (VII of 1925) as well as the Bombay Non-trading Corporation Act (XXVI of 1959) also contain similar provisions. The learned Government Pleader, however, does not dispute that apart from express incorporation, it is possible to have a corporate body, if the Legislature in dealing with it, without expressly incorporating it, manifests an intention to incorporate it. See Mackenzie-Kennedy v. Air Council,18 where Atkin L.J held that the Air Council was not a corporation though under s. 10 of Air Force (Constitution) Act, 1917, the Air Council might sue and be sued, and might for all purposes be described, by that name and by virtue of s. 8 has the characteristic of perpetual succession. He quoted with approval the observations of Littledale, J., in The Conservators of the River Tone v. Ask,19 that

“To create a corporation by charter or Act of Parliament it is not necessary that any particular form of words be used. It is sufficient if the intent to incorporate be evident”.

81. But then Atkin L.J proceeded to observe, (p. 534):

“…I find, however, that in fact under the Order in Council the property of the Secretary of State for War, and such property as the Air Council may acquire under the powers transferred to them, is vested not in the Air Council but in the President. I also bear in mind that there were in existence before 1917 various Acts expressly constituting Departments of State corporations. I need only refer to the Acts incorporating for certain purposes the Secretary of State in Council of India (Government of India Act, 1858, s. 65); the Postmaster-General (Post Office Duties Act, 1840, s. 67); and the Commissioners of Public Works (Commissioners of Works Act, 1892, s. 1). If it had been intended to incorporate the Air Council one would have expected the well known precedents to be followed with express words of incorporation, and express definition of the purposes for which the department was incorporated.”

82. The learned Government Pleader contends that apart from the fact that the Societies Registration Act contemplated the registration of societies of various; and heterogeneous types under s. 20, there are provision's in the Act which would militate against the argument that all societies registered under the Act would have the status of a corporation or quasi-corporation. In this connection, I have already referred to ss. 5 and 6 of the Act which show that the property of the society is either to vest in the trustees or, if not so vested, be deemed to be vested for the time being in the governing body of the society, and societies registered under the Act can sue or be sued in the name of the president, chairman or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. The learned Government Pleader has also invited my attention to para. 2 of s. 10 of the Societies Registration Act, which shows that if the defendant is successful in any suit or other proceedings brought against him at the instance of the society and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit shall be brought or from the society, and in the latter case shall have process against the property of the said society. The provisions of ss. 5, 6 as well as para. 2 of s. 10, it is contended, would indicate that the Legislature was really manifesting an intention to withold incorporation from societies registered under the Societies Registration Act rather than conferring the status of a corporation or a quasi-corporation on these societies. There is considerable force in this argument.

83. Then it is contended that the term ‘corporation’ as used in the Union as well as the State List cannot include quasi-corporations or societies having substantially, if not all, the attributes of a corporation. It was argued by Mr. Amin that entry 7 in List III, Concurrent List, of the Constitution refers to contracts, and that must necessarily refer to quasi-contracts also, and if that be so, the term ‘corporation’ must also include within its ambit quasi-corporations or, as Mr. Amin also proposed to call them, societies similar to corporations. In the first instance, the analogy of the entry relating to contracts would, in my opinion, be not proper, because the entry occurs in the Concurrent List, and obviously, if that entry is given a meaning so as to include quasi-contracts, no question of any conflict is likely to arise because both the Parliament as well as the State Legislature would be competent to legislate on the subject of ‘contracts’ interpreted in its widest ambit. The difficulty, however, arises, with reference to the term ‘corporation’ which occurs in the Union List as in the State List. The learned Government Pleader points out that if the term ‘corporation’ is to include quasi-corporations, a similar meaning will have to be given to that term in entry 85 in List I, Union List, which refers to a corporation tax; so that under that entry, the Union Legislature would have power to impose a corporation tax not only on corporations in the real sense of the term but also quasi-corporations which, according to the contention of the appellant, would include all heterogeneous kinds of societies which are likely to be registered by virtue of s. 20 of the Societies Registration Act. In my judgment, the difficulty pointed out by the learned Government Pleader cannot be easily brushed aside.

84. The learned Government Pleader also referred to the case of Narasaraopeta Electric Corporation v. State of Madras,20 where a question as to the validity of the Madras Electricity Supply (Acquisition) Act, 1949, was raised and the Madras High Court had to consider the conflict between item 33 of List I dealing with corporations and item 31 of the List III dealing with electricity, in the Seventh Schedule to the Government of India Act, 1935, I do not, however, propose to refer to that, case, since the learned Government Pleader frankly stated that it appears to have peen reversed by the Supreme Court though on another ground, in R.E.S Corporation v. State of Andhra.21

85. In my judgment, societies registered under the Societies Registration Act are neither corporations nor quasi-corporations but are unincorporated societies contemplated under the second part of entry 32 of the State List. As I have already indicated, the object of the impugned Act is to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. The definition of ‘public trust’ under s. 2(13) of the Act includes a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act. If all the provisions of the Act are carefully examined, the Act is in the main intended to regulate the administration of public religious and charitable trusts, and this subject would fall within the ambit of entries 10 and 28 of the Concurrent List. Even assuming, therefore, that societies registered under the Societies Registration Act are not unincorporated societies but fall within the scope of entry 44, I do not think that the validity of the Act can be challenged on the ground that incidentally it entrenches on the field contemplated by entry 44. In the result, therefore, I agree with the view expressed by my brother Patel, J. on the point involved in this appeal.

86. I may mention that no argument was advanced by Mr. Amin before me challenging the vires of the Act on the ground that so far as the appellant-Society is concerned the Act might affect its properties outside the State of Maharashtra. The learned Government Pleader wanted in this connection to rely on the Supreme Court case, State of Bihar v. Charusila Dasi . [1959] S.C.J 1183. in support of the validity of the Act even on that point. But it is not necessary for me to deal with it, as the question was not raised before me by Mr. Amin.

87. I was informed during the course of arguments that the Society has made an application to the State Government for an order, directing its exemption from the provisions of the Act as contemplated under the first proviso to s. 1(4) of the Act. That application, the learned Government Pleader informs me, could not be considered by the State Government because these proceedings have been pending.

88. Nothing in this judgment may, however, be taken to affect a favourable consideration of that application on merits.

89. The result is that I hold, agreeing with my brother Patel, J. that the Bombay Public Trusts Act, 1950, applies to the appellant-Society, though it is registered under the Societies Registration Act and has its objects not confined to one State. This appeal, therefore will have to be dismissed, but in the circumstances of this case there will be no order as to costs.

90. Appeal dismissed.