Subhas Chandra Bose v. Gordhandas I. Patel

Sarat Chandra Bose (of the Calcutta Bar), with M.L Manekshah and M.M Javeri, for the appellant.

M.C Setalvad, Advocate General, with Sir Jamshedji Kanga, for respondents Nos. 1 and 2.

B.J Desai, with N.P Engineer, for respondents Nos. 4 and 8.

F.J Coltman, with Sir Chimanlal Setalvad and A.C Amin, for respondents Nos. 6 and 7.

G.N Joshi, for the Advocate General.

Sarat Chandra Bose.

Two questions arise in the construction of the will: (1) Is the bequest of the residue in cl. 5 an absolute bequest to Bose and (2) if not is it a valid charitable trust? Following the rules of construction of wills laid down in In re Harrison. Turner v. Hellard, Kirby-Smith v. Parnell, Webb v. Wools, and In re Alkinson, Alkinson v. Atkinson the Courts ought to lean to a certain extent against intestacy and, if possible, adopt a construction which would validate a bequest and not one which cuts down the bequest.

If the clause in the will had stopped with the words “to be handed over to Mr. Bose” there is no question that the bequest would be an absolute bequest to Bose. Then does the latter part of the clause cut down the absolute estate given by the earlier part of the clause? I submit it does not. The direction is merely the expression of the motive for the gift or hope or belief as to the way in which the money would be spent. The case is covered by s. 138 of the Succession Act. The legatee is entitled to receive the fund as if the will had contained no such direction. Under that section the application of the funds or its enjoyment need nor be limited to the legatee. Lambe v. Eames and Hill, In re. Public Trustee v. O'Donnell,(6) referred to.

The direction in the will is that the fund be applied to any of the two purposes named at the discretion of Bose. This does not make him a trustee of the fund: Bowman v. Secular Society Limited.(7) Absence of the use of the words “trusts” or trustee is a good indication that no trust was intended.

If the clause amounts to a trust it is a valid charitable trust. Charitable purpose is defined in s. 2 of the Charitable Endowments Act, 1860, as including “The advancement of any other object of public utility”. The definition is wider than the meaning accepted in England. The English decisions defining what are charitable purposes are not binding on the Courts in India. As to the meaning of “charity” Commissioners for special purposes of Income-tax v. Pemsel, In re Hutchinson and tenant and Trustees of Tribune Press v. Commissioner of Income-tax, Punjab, referred to.

Even if the English cases apply a gift for the “political uplift of India” is a good gift. The gift is not for a “political purpose” but for “political uplift”, i.e it comprises every activity beneficial to India and Indians. The gift does not cease to be charitable because of the use of the word “political”. The testator's object in using the word “political” was to indicate an object of general public benefit, i.e the general betterment of the conditions of the Country—India.

In re Smith: Public Trustee v. Smithy, Attorney General v. Lord Lonsdale, Attorney General v. Mayor, etc. of Carlisle, Milford v. Reynolds, Nightingale v. Goulbourne,(8) Attorney General v. Webster,(9) Goodman v. Mayor of Saltash,(10) and Verge v. Somerville,(11) referred to.

This is a case in which a general charitable intention is manifest, i.e the political uplift of India and not one of a gift to a specified object. Thar being so it is a good gift in the sense understood in Attorney General v. Lonsdale.

Sir Jamshedji Kanga. Section 138 of the Succession Act has no application. There is no beneficial gift to Bose here. Every object of general utility need not necessarily be a charity: In re Macduff: Macduff v. Macduff (he was stopped).

G.N Joshi. Submitted that there was no beneficial gift to Bose but supported the appellant in his contention that it was a valid charitable gift.

B.J Desai. There is no general intention of charity. “Political uplift” here means political object. It is to be remembered the testator was a nationalist leader and in his view political uplift would mean political independence of India. The object “Political uplift” is too vague and uncertain for the Courts to enforce them if occasion should arise. Ranchordas Vandrawandas v. Parvatibai, referred to.

If political uplift is capable of including a non-charitable object the gift is bad: Morice v. Bishop of Durham,

The locality cases namely of a gift to a particular town or Country has no application to the present case.

F.T Coltman, followed.

Sarat Chandra Bose, in reply.

Beaumont, C.J:—This is an appeal from a decision of Mr. Justice B.J Wadia, and it raises a question as to the validity of the gift of residue contained in the will of the late Vithalbhai J. Patel. The will was made on October 2, 1933, and the testator died on the 22nd of the same month. Probate of his will was subsequently granted by this Court.

By cl. 9 of his will the testator appointed executors and then gave four legacies, and the only relevance of those legacies is that they are all directed to be “given” to the beneficiaries. Then in sub-cl. (5) the testator disposes of his residue in these terms—

“The balance of my assets after the disposal of the above mentioned four gifts is to be handed over to Mr. Subhas Chandra Bose (son of Janaki Bose) of 1 Woodburn Park, Calcutta, to be spent by the said Mr. Subhas Chandra Bose or by his nominee or nominees according to his instructions for the political uplift of India and preferably for publicity work on behalf of India's cause in other countries.”

Then the will goes on—

“In the event of my death in Europe I desire that Mr. Subhas Chandra Bose shall take charge of my body and make the necessary arrangements for sending it to Bombay for cremation on the Chaupaty Sands alongside the place where the late Lokamanya Bal Gangadhar Tilak's body was cremated.”

The question is whether or not that gift of residue it valid, in law. The learned Judge held that it was invalid and that the residue was undisposed of.

The argument in this Court has been based on two grounds: First, it is said that on the true construction of cl. (5) the residue is given to Mr. Bose absolutely, the direction as to how it is to be spent being merely the expression of the motive for the gift, or possibly of the testator's hope or belief as to the way in which the money would be spent. It is fair to Mr. Bose to say that his counsel disclaims on his behalf any desire to utilise the money for his own purposes; he claims to be absolutely entitled to it in order that he may apply it under the will. The argument is that if the gift had stopped after the name of Mr. Bose, that is to say, if there had been nothing but a direction that the residue was to be handed over to Mr. Bose, that would have been a good bequest to Mr. Bose beneficially, and that no doubt is so. But it is to be noticed that there are in the residuary clause no words of gift such as are contained in the case of the other legacies. The residue is not in terms given to Mr. Bose, still less is it given to him for his own use or benefit. The words are “to be handed over to Mr. Subhas Chandra Bose”, an expression apt to introduce a trust, and the whole direction being to hand the money over to Mr. Bose to be spent in a particular way, I cannot entertain the slightest doubt that the words constitute a trust, and that there is no beneficial gift to Mr. Bose.

Reliance has been placed on s. 138 of the Indian Succession Act, which provides—

“Where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction.”

But that section, to my mind, has nothing whatever to do with the creation of a trust. The condition precedent to the coming into operation of the section is chat the fund is bequeathed absolutely to, or for the benefit of, any person. That to my mind means ‘is bequeathed beneficially to any person.’ All that the section does is to provide that where you have an absolute gift to a beneficiary you cannot cut that down by subsequent directions as to how the money is to be applied, either for the benefit of the beneficiary, or of anybody else; but the section has no application to the case of a gift followed by a direction which amounts to a trust. In such a case the gift is nob to the legatee absolutely, but to him upon a trust, which is none the less a trust because it is introduced by the word “direct”.

Mr. Sarat Bose has further argued shat the case can be brought within s. 139 of the Indian Succession Act which seems to me to be directed to the rule, well known in England as the rule in Lassence v. Tierney, namely that if you have a gift in the first instance absolute in terms, and then trusts are imposed upon it which do not, in the events which happen, exhaust the gift, the original gift takes effect to the exclusion of the residuary legatee, or the next of kin. But here there is no absolute gift in favour of Mr. Bose in the first instance. The only gift to him is upon a trust specified in the latter part of the clause. That disposes of the first question raised.

The second contention of Mr. Sarat Bose is that the trust, if there be one, is a valid charitable trust. The essence of the trust is that the moneys are to be spent for the political uplift of India. It is argued by Mr. Sarat Bose, and also by Mr. Joshi on behalf of the Advocate General, that the political uplift of India is something quite different from the advancement of certain political purposes. It is said that the political uplift of India necessarily denotes a political advance or improvement, the raising of India to a higher political level by improving the methods and machinery of Government, or possibly by advancing the knowledge of the people on political subjects. At any rate, it is said that the gift is for the improvement of India; and having got so far, Mr. Sarat Bose says that the gift is really equivalent to a gift for general public utility in India, or possibly for the people of India, and he refers to the definition of “charitable purpose” contained in s. 2 of the Charitable Endowments Act of 1890, which is that “charitable purpose” includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship. There is a similar definition of “charitable purpose” in the Indian Income-tax Act, 1922, except that it does not refer to religious trusts.

Mr. Bose argues that in India a trust for general public utility would be valid, and that the Courts are not bound by the English cases which exclude such a purpose from charitable trusts, and he contends, secondly, that even if we are bound by the English cases, nevertheless this gift is equivalent to a gift to India and falls within the line of cases which may be referred to as “the locality cases.”

We have been referred to a great many of the English cases, and I think, not for the first time in my life, that they are not by any means in a satisfactory condition. In Commissioners for Special Purposes of Income Tax v. Pemsel, Lord Macnaghten ventured on a definition of charity in the legal sense, that is as falling within the Statute of Elizabeth. He says this (p. 583):—

“‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.”

That definition, except in relation to religion, which is obviously not in the same position in India as in England, where there is only one religion, is very much the same as the definition in the Indian Charitable Endowments Act. Now, very soon after Pemsel's case had been decided the Courts in England unfortunately, as I venture to think, held that the fourth class in Lord Macnaghten's definition, viz., trusts for other purposes beneficial to the community, was not really a definition at all, that all that Lord Macnaghten meant was that charity in the legal sense might embrace purposes beneficial to the community, but that all purposes beneficial to the community were not charitable. That was laid down as early as In re Macduff: Macduff v. Macduff and the result was largely to destroy any practical utility in the definition given by Lord Macnaghten, because instead of having merely to enquire whether a particular gift fell within one of the four classes, if such gift fell within the fourth class the Court had to go further and enquire whether it was charitable or not. However, undoubtedly under English case law a gift for general public utility is not a good charitable gift, because it might be employed for purposes which are not considered charitable. But side by side with cases of that nature there exists another line of cases which have been referred to as “the locality cases” in which it has been held that a gift for the benefit of a particular place, whether a parish, a city, a county, or a country is charitable, although the purposes of the gift are not specified and the gift could apparently be applied for the general purposes of the locality. I need not refer to the cases in detail, because they are all collected and discussed in the case of Smith, In re: Public Trustee v. Smith, in the English Court of Appeal. Those cases undoubtedly exist and show that a gift for the benefit of a locality is good. I must confess that I feel great difficulty in seeing how those cases can be brought within the purview of the law relating to charitable trusts. It is very difficult to see why if a gift for the general purposes of the community is not charitable, because it might be applied for purposes which are not charitable, a gift to a particular place is charitable, though that also might apparently be applied to non-charitable purposes in the locality. And this difficulty is not diminished where the locality is extended to the whole of England as it was by the case In re Smith (supra) where the gift was to England. Lord Justice Lawrence, at the end of his judgment pointing out the principle on which the judgment was based, says (p. 173):—

“The conclusion I have arrived at, after considering all the authorities to which out attention has been drawn, is that the present case falls within the principle of the cases in which the gift is for the benefit of a particular class and, therefore, for a specified public purpose, and not within the line of cases in which the gift is for public purposes of a general and wholly unrestricted nature.”

I do not myself see why a gift to a class if it be regarded as being for a specified purpose should be any more for a charitable purpose than a gift to the community or to an individual. However, there the cases are, and if we had in this case a gift to India, or a gift to the people of India, we should have to consider whether the principle of those cases should be applied in India, and if so whether that principle which has been gradually extended from a parish to a country should now be extended to a sub-continent. However, as we have not got a gift to India, or the Indian people, that interesting question does not arise for decision.

With regard to the more general argument of Mr. Bose that what we have got here is in effect a gift for the general public utility of India, I would only say that if we really had such a gift, I should approach the argument of Mr. Bose that a gift for general public utility is a good charitable gift in India, with much sympathy; and if the authorities were not too strong for me I should be glad to hold in favour of the argument, relying on the statutory definitions of “charitable purpose” in India, and also having regard to the rather unsatisfactory state of the English authorities. But again we have not got here a gift for the general public utility of India, and therefore that question also does not call for decision.

What we have got here is a gift for the political uplift of India, and one cannot possibly disregard the adjective “political”. Assuming that the meaning of those words is that for which Mr. Bose contends, i.e, that they denote improvement in the political system of India, and therefore to that extent must be beneficial to India, the difficulty is that the words are too vague. Every trust must be expressed in sufficiently clear language to enable the Court to ascertain what are its purpose and object. This is so under English law and also under s. 6 of the Indian Trusts Act, and that the principle applies to charitable trusts was laid down as long ago as the case of Morice v. Bishop of Durham. The test must ultimately be whether, if the Court be called upon to administer the trust, the Court would be able to do so. Here, it seems to me impossible for the Court to determine what is embraced in the term political uplift of India. To take an obvious test. Suppose this trustee honestly considered that it would be for the political uplift of India that India should sever her connection altogether with the British Empire, and proposed to apply the funds for that purpose, and suppose that the Advocate General, representing the public, were to take the opposite view and were to allege that the trustee was misapplying the funds, and supposing the question was brought before the Court, how could any Court possibly determine judicially whether the separation of India from the British Empire was for the political uplift of India. It is a question on which Judges may have their own private opinions, but it is not a question on which it would be possible to obtain evidence on which a judicial decision could be based. This trust is so worded as to make it impossible for any Court to say which of two contradictory lines of conduct properly comes within the terms of the trust.

This is not a case, as Mr. Sarat Bose has argued, of a general charitable purpose and a defect only in the expression of the testator's particular intention. Where a testator shows a general charitable intention, but the particular charitable purpose indicated for some reasons fails, the Court will give effect to the general charitable intention and will get over the defect in the particular intention by framing a scheme. But here there is no general charitable intention; there is no intention whatever expressed, except that the money is to be used for the political uplift of India, and if that is too vague to be enforced, there is nothing left.

Mr. B.J Desai on behalf of some of the beneficiaries has challenged the view that political uplift of India in this will does indicate a desire for the general improvement of the political status of India. He argues that political uplift in this will means the advancement of India's claim to independence, that is the advancement of a particular political purpose and in support of that contention he relies on the position of the testator. Unfortunately the affidavit in support of the summons does not state any facts relating to the testator, but we can, I think, take judicial notice of the fact that he was a well known Indian leader and had been President of the Legislative Assembly, and indeed the direction he gives as to the disposal of his body indicates to anybody with local knowledge that he was an Indian nationalist leader. Mr. Desai contends that political uplift in the mouth of an Indian national leader would mean the advancement of India's claim to independence, and that view of the matter derives support from the words which follow— “preferably for publicity work on behalf of India's cause in other countries”. It is difficult to see what India's cause means, if the political uplift of India denotes the general raising of the political status or conditions of India; it is easy to see what the words mean if political uplift denotes advancement of a claim to independence. A trust to advance a political purpose is clearly bad on the ground given by Lord Parker in Bowman v. Secular Society, Limited, that a trust for the attainment of political objects is invalid, not because it is illegal, but because the Court has no means of judging whether any proposed political change will or will not be for the public welfare or benefit. Mr. Sarat Bose has drawn our attention to the fact that dictum is criticised by the learned authors of the 5th Edition of Tudor on Charities, but the dictum was accepted by the Privy Council in the case of Trustees of Tribune Press v. Commissioner of Income-Tax, Punjab. I think the Privy Council in that case were definitely of opinion that if the Tribune newspaper was employed for the advancement of particular political purposes the trust under which it was managed would not be charitable. In my opinion, whatever meaning one attaches to the expression “political uplift of India”, it is impossible to give effect to it as a valid trust, because it is too vague for the Courts to enforce.

In my opinion, therefore, the judgment of the learned Judge was right and the appeal fails.

With regard to costs we direct the appellant to pay one set of party and party costs of the executors and one set of party and party costs for all the beneficiaries, between them two counsel certified. The difference between party and party and attorney and client costs of the executors to come out of the estate.

With regard to the Advocate General, he was a necessary party and we think that his costs must be provided for. He supported the appellant but failed. We think that a reasonable order—though perhaps not a very logical one, is to direct that half his costs should be paid by the appellant and the other half should come out of the estate.