JUDGMENT Ameer Ali, A.C.J. 1. This judgment will, apart from inherent disabilities, suffer from the intermittent nature of the hearing as also from the fact, never, as Mr. Clough remarked, satisfactory, that some of the arguments, on behalf of the Plaintiff fell to be suggested by the Court. The testator. Alexander Edward Chaplin, died on the 2nd February, 1938, leaving behind him a considerable fortune amounting, I am told, to some two lakhs of rupees, of which he disposed by Will dated 27th September. 1937, and taking with him a somewhat irrational antipathy, both to Christianity and to his nearer surviving relatives, namely, the Plaintiff, his daughter, and the widow and children of his pre-deceased son. On this account he bequeathed the residue of his estate, subject to certain limited interests, to which I will refer in a moment, to two organizations who are Defendants No. 2 and No. 3. Defendant No. 2 being a registered society, and No. 3 being a limited company. Defendant No. 1 a lawyer is the execute of the Will, who obtained probate on the 7th April, 1938. 2. The only benefits for flames are to his stepdaughter Mrs. Winifred McQuillan, who receives Rs. 200 per mouth for life, and Rs. 50 each to for step-grand-daughters, payable through Mrs. McQuillan. After Mrs. McQuillan's death the residuary legatees, Defendants Nos. 2 and 3 are made the trustees by the last clause of the Will, made, as I would hold trustees for payment of these annuities out of the residuary bequest to themselves. 3. The estate is vested in the executor upon trust in the usual manner, and the residuary bequest reads as follows :-- The residue of income after all the above payments are made, shall be divided into three equal parts, two of which shall be paid to the National Secular Society, No. 62, Farringdon Street, London, England, and one part to the Rational Trust Association, etc. After the demise of the aforesaid Mrs. McQuillam, I direct that the whole of my estate as it should then stand together with income accruing thereto . . . . . should be divided into three equal parts. One such part shall be given to the Rational Trust Association . . . . for the general purposes of the Association, the remaining two parts shall be given to the National Secular Society . . . . . . . . . should be divided into three equal parts. One such part shall be given to the Rational Trust Association . . . . for the general purposes of the Association, the remaining two parts shall be given to the National Secular Society . . . . . for all or any of the purposes of the said Society. 4. Mrs. McQuillan and the step-grand-daughters are lives in being, and from this point of view others is no question of perpetuity. 5. The testator's daughter attacks the residuary bequests on the ground indicated already in the cause title, that the bequests are to religious uses, Defendants Nos. 2 and 3 being described respectively as "a religious society" and "a religious association" see paragraph 6 of the plaint). The Will was not deposited and was made within a year of the death of the testator, (See sec. 118, Indian Succession Act). 6. The Plaintiff has in the plaint not raised the point (a) of perpetuity : (b) of unadministrability : (c) illegality. 7. The last point indeed, having regard to the authorities, is of little value. The Plaintiff, however, during the course of the trial was allowed to, and did, rely upon the other two points, (a) perpetuity, and (b) unadministrability, on the ground of "indefinite purposes" (non-charitable). 8. I will return in a moment to the manner in which I think the Plaintiff might have developed her attack, putting Mr. Clough into a position from which there was only one line of escape. Before I do so. I make the following general observations on matters of law. 9. This case falls to he decided on the provisions of the Indian Succession Act, originally an Act of 1865, and now Act 39 of 1925, The Plaintiff has relied upon sec. 118, and may rely upon sec. 114. Sec. 114embodies the English principle of perpetuity. No exception has been therein expressed with regard to charities nor have I myself on this occasion referred to the cases which make it clear that both the principle itself and the exception relating to charities have been made part of the Indian Paw of Succession, I have proceeded upon that basis. Sec. 114 is a statutory embodiment of a non-statutory rule of English Paw, the origin of which is almost untraceable. Sec. 114 is a statutory embodiment of a non-statutory rule of English Paw, the origin of which is almost untraceable. Sec. 118 has always been assumed to have been based on statutory English limitation, namely, the Mortmain Acts, The phrase "religious or charitable uses" is certainly taken from the English statutes, as also the conditions for validity, which are analogous. It is to be observed, however, that sec. 118 relates both to movable and immovable property which at once introduces a violent contrast with the English Law, and it must, I think be assumed having regard to this fact--the absence of distinction between movable and immovable property in India and Indian conditions under which, as regards the community mainly concerned, the danger of monastic orders is not to be apprehended in this country, that the object of this section was protection of the family. In England the origin of the rule was due to very different causes. At the time of the Magna Carta the protection of the family was not thought of, but the protection of what in India might be called zemindars' rights, and in England Royal and Feudal privileges, it was due clearly to an attempt to stay the engrossing of land and perpetual ownership by the Church and monastic orders. [See the observations in one case to which I shall refer for other purposes in the Incorporated Society v. Richards [1841] 1 D & W 295, 259]. That the original purposes of the Mortmain Act was of the nature indicated and not for any purposes of deprecating charities or protecting the family, is supported by the fact that in other matters and in other respects the Court gave to charities a favoured position, protecting them for instance against the rule against perpetuities and assisting to administer in a case where other trusts would have been regarded as unadministerable (see observations in Jarman). 10. The Mortmain Act of 1736 however, which was the Statute in force both when the original Succession Act was passed and when some of the cases to which I shall have to refer were decided, for instance Denaney's case [1902] 2 Ch. 647 relating to a Will made before the Act of 1888 uses expressions which indicate that at that time (1736) the family was some consideration. 11. Mr. 647 relating to a Will made before the Act of 1888 uses expressions which indicate that at that time (1736) the family was some consideration. 11. Mr. Chaudhury, this morning, has been good enough to show me a judgment of a Lord Chancellor which gives an interesting analysis of the motives for that legislation, Attorney-General v. Dey [1748] 1 Ves. 218 at p. 223 showing that the interest of the family was still a subordinate consideration. 12. In the first half of the 18th century trade had become a primary consideration even as regards principles of law. This aspect is referred to in the following passage "First to prevent the locking up of laud and real property from being aliened" . . . . . as to the other view it is of the last consequence to a trading kingdom to which the locking up of land is a great discouragement. (See by an analogy the judgment in the case of Omichand, Mansfield's report). 13. In my opinion, therefore it may well be that the purpose of sec. 118 was not that primarily of the English Acts of Mortmain. On the other hand in view of the Act itself and the trend of authorities up to date I do not consider myself at liberty to construe this or any other sections of the Act without reference to the English authorities. 14. However absurd therefore it may be to hold that the family is protected against good charity but not protected against a bequest to some rubbishy concern, that appears to me on the English authorities to be the law. It is a matter for the legislature to consider whether it should be changed. 15. Assuming that bequests such as those in suit have to be determined upon principles of English Law as applied to secs. 118, 114 and certain others, there are certain obstacles which those supporting those bequests have to pass. The bequests cannot pass what may be called door No. 118 if they are "religious or charitable." They cannot pass door 114 if they are not religious or charitable. If they are not religious or charitable they may be hit by the principle of non-administeribility, [Morice v. The Bishop of Durham 1805 10 Ves. 522 followed by Subhas Bose's case I. L. R. [1940] Bom. P 1 page 254 and in England, in re: Hummeltenberg [1923] 1 Ch. If they are not religious or charitable they may be hit by the principle of non-administeribility, [Morice v. The Bishop of Durham 1805 10 Ves. 522 followed by Subhas Bose's case I. L. R. [1940] Bom. P 1 page 254 and in England, in re: Hummeltenberg [1923] 1 Ch. 237/241. In order to sec whether Mr. Clough has made good his escape from the dilemma it is necessary again to refer to the English system of law which appears to have been developed upon the principle first of all of setting up difficulties and then finding methods of jumping over them. Throughout the decisions one can trace the desire of the Judges to support the testator's bequest for benevolent purposes which exceed the scope of charitable purposes according to the English conception. (Statute of Elizabeth). The hurdles are as follows (1) Illegality, (2) Perpetuity, (3) Mortmain, (4) Unadministeribility. In jumping over some of these hurdles, for the purposes of supporting the intention of the testator the result in certain cases tends to defeat the testator's intentions from other points of view. Complications ensue. (1) The first remedy, of a radical or surgical nature, is that of free and "unfettered gift," "non-use," "spend how you like." Observe that I have avoided the word "as," because in my opinion the use of that word has led to some measure of misunderstanding. The authorities from Haberdasher's case [1834] W. & K. 420 are The Attorney-General v. Haberdasher [1834] W. & K. 420. Ogden's case [1933] 1 Ch. 679 with Bowman's case [1917] A. C. 406 standing up in the middle of that century, with Bowman's case [1917] A. C. 406, Bowman v. The National Secular Society [1917] A. C. 406, casting its tremendous shadow both towards the past and the future. Clearly this is Mr. Clough's tunnel of escape. If there is no use, a free-gift, the question of illegality, perpetuity. Mortmain and inadministeribility, are all avoided. (2) "Perpetual use," "use-always." This is the opposite principle. The cases without proceeding earlier are (1841) The Incorporated Society v. Richards [1841] 1 D & W 295, 259, Mahony v. Duggen [1884] L. R. 11 Ch. D. 260, In re: Amosto [1891] 3 Ch. 164, 159. In Macaulay's Estate. Macaulay v. O'Donnell [1943] 1 Ch. 435. 16. (2) "Perpetual use," "use-always." This is the opposite principle. The cases without proceeding earlier are (1841) The Incorporated Society v. Richards [1841] 1 D & W 295, 259, Mahony v. Duggen [1884] L. R. 11 Ch. D. 260, In re: Amosto [1891] 3 Ch. 164, 159. In Macaulay's Estate. Macaulay v. O'Donnell [1943] 1 Ch. 435. 16. The question which I shall further discuss is how far without the usual or ordinary expressions creating a trust, a trust or use is to be inferred or found by the Court from the description, or the activities of the donee. (3) The third class of cases which in the course of discussion were described for convenience as "use-up" cases, for practical purposes begin with Cox v. Manners [1871] 12 Eq. 575 and become more and more common until the last case in In re: Price [1943] 1 Ch. 426. Those cases sometimes overlap those already mentioned in classes 1 and 2, as also those which consider whether a Court of Chancery will or will not insist upon a scheme see Tudor 182 and 183). They are an intermediate kind of remedy applied where a Court finds it impossible to apply the surgical remedy of free gift: where the Court cannot avoid a "use." but is able to avoid the hurdle of perpetuity and Mortmain and possibly non-administeribility by holding that although not an unfeterred gift and therefore although the subject-matter of the bequest is to be applied in the manner indicated those, to whom it has been given may use both as corpus and income. That being the case the Court need not frame a scheme and avoids the dangers of perpetuity and Mortmain. All three aspects have been discussed In re: Price [1943] 1 Ch. 426. 17. I now crime to discuss the free gift by which Mr. Clough sought to make and in my opinion, has made his escape. 18. In Bowman's case [1917] A. C. 406 an Incorporated Society with memorandum and articles indicating objects very similar to those of Defendants Nos. 2 and 3 received a residuary bequest in the following simple form "upon trust for the Secular Society. Ltd.," etc. The bequest was attacked on one ground and one ground only, that the objects of the Society were unlawful. 2 and 3 received a residuary bequest in the following simple form "upon trust for the Secular Society. Ltd.," etc. The bequest was attacked on one ground and one ground only, that the objects of the Society were unlawful. That was based upon the fact that the fundamental purpose of the Society was the elimination of revealed religion, in i.e., Christanity. Lord Finlay relying upon the earlier case Briggs v. Hartley [1850] 19 L. J. (Ch.) 416 held that the bequest was invalid because the objects of the donee company were illegal (at page 432). To all appearances those attacking the bequest did not raise the question of the trust : Lord Parker, however, raised the question of trust or use in order to knock it down with very mighty blows. The result of the observations of Lord Dunedin and Lord Parker on this point may. I think be summarised as follows:--(1) In order to invalidate a gift you must not import consideration of trust where no trust exists, (2) No trust can be implied or inferred from the fact that the articles and memorandum of association of a limited company impose or involve certain action or function which the donor may expect to be carried out by the donee. (3) No distinction was made between a limited company, a Society and an individual. The functions, of a company would be indicated in its memorandum and article those of an individual or association might be indicated by a deed as in the case in re: Price [1943] 1 Ch. 426 at p. 428. The principle which Mr. Clough deduced from this authority can, I think, be formulated as follows:--An assurance to X Limited became the objects of X Limited are charitable as demonstrated by the memorandum and articles does not make it an assurance to a charitable use. Similarly with regard to XXX, a group of individuals unincorporated and with regard to X as an individual. Secondly a gift to X in any of its forms) for X purposes excludes the conception of trust or use. Thirdly a gift to X for only some of X purposes may involve a conception of trust or use. Bowman's case [1917] A. C. 406 seems to me to indicate the high watermark of the tendency to regard what would have been bad as a trust, as a gift, and therefore good. Thirdly a gift to X for only some of X purposes may involve a conception of trust or use. Bowman's case [1917] A. C. 406 seems to me to indicate the high watermark of the tendency to regard what would have been bad as a trust, as a gift, and therefore good. The difficulties involved in the principle deduced by Mr. Clough carried to its logical conclusion are as follows:--Bequest to X for X purposes, trust excluded, cannot distinguish X and X purposes, result no purposes, only X. On the other hand X for purposes or to the use of purpose X2 out of three purposes X (1. 2 and 3), good. Mr. Clough says that this is the law [see In re: Price [1943] 1 Ch. 426]. Suppose a society has one purpose XI, the examples suggested by me in the course of the arguments were Ballygunje Society for Distribution of Milk. It seems to me to make no difference whether the name is Ballygunje Society for Milk Distribution or the Ballygunje Milk Society. I conceive the popular view would be that the Society would receive any donation or any bequest in that name, in trust for milk supply. Apart from the decision in Bowman's case [1917] A. C. 406, such would have been my view of the law. Another example is the Society for the Protection of Cruelty to Animals. Could it he said that a bequest or gift to such a Society in such a name would be of the nature of free gift? Some of the cases go very near, if they do not cover the point, for instance that already referred to in The, Incorporated Society v. Richards [1841] 1 D & W 295, 259. The gift was merely to "the Incorporated Society in Dublin for promoting the English Protestant Churches School." It was contended that there was no sufficient trust, and therefore a gift. Lord Sugden at page 294 stated his view. 19. "I take the words simply as they stand, and including as they do, the very objects for which the Society was incorporated they appear to imply that the devise was made to the Society in that character, and thereby, as it were, to impress the estate with the charitable purposes for which the Society was created. 19. "I take the words simply as they stand, and including as they do, the very objects for which the Society was incorporated they appear to imply that the devise was made to the Society in that character, and thereby, as it were, to impress the estate with the charitable purposes for which the Society was created. This view of the case is quite in accordance with good sense, and the interpretation, which any ordinary person would put upon the words: for, suppose a sum given to the Governors of the Deaf and Dumb Schools, or of any other institutions, no one would doubt, though the gift did not go to, say, in trust for the particular charity, but that the money was given for the use of that charity. No one surely would argue, that the Governors of the institution were to take the funds for their own benefit. On this part of the case, I see no difficulty." 20. It seems to me that it is splitting hairs to distinguish, for instance, the Ballygunje Society for the Distribution of Milk and the Ballygunje Milk Distribution Society. There are several authorities on the lines of the one just cited which support the view that where the object is charitable and the object is of such a description that it is clear that a beneficial or free gift is not intended, Bowman or no Bowman, "free gift" will not be the result. 21. The question arises whether it makes any fundamental difference when the object is incorporated as a company. I can see no fundamental difference. I see only this possible distinction that in case of an individual his activities are naturally unlimited and therefore any articles or statutes must indicate a narrower sphere; whereas in the case of company it has no activities or existence beyond its memorandum and articles. 22. Bowman's case [1917] A. C. 406, however, tends as I have already said to lay down a general principle, which appears to recognise no distinction between a bequest to X Ltd. to X. or to XXX or (The Ballygunje Society for Milk). In my opinion the bequests in this case are indistinguishable from that in Bowman's case [1917] A. C. 406, and the matter is therefore covered by authority. Mr. Clough makes his escape. 23. In my opinion the bequests in this case are indistinguishable from that in Bowman's case [1917] A. C. 406, and the matter is therefore covered by authority. Mr. Clough makes his escape. 23. On the other hand, if I had held that the bequests in this case were not free gifts, and there was a sufficient indication by reason of the nature of the donees of an intention to create a use, I should have held that the use was of the kind already described, in other words, it would come within the line of cases, Cock v. Manners [1871] 12 Eq. 575 and In re: price [1943] 1 Ch. 426. 24. I desire further to explain the observations which I made at the outset of this judgment in connection with these cases. Vice-Chancellor Sir John Wickens was the inventor of this remedy for perpetuity and Mortmain. 27th July, 1944. 25. The gift to the Dominican Convent was not a charitable trust. The question was: Was it void for perpetuity? [Carne v. Long 2 DeG. F. & J. 75 (1800)]. The endowment of Penzance Library was relied upon to invalidate the bequest. That case does not, I conceive, decide that a gift to a perpetual institution, not charitable, is is bad, for instance, in gift to a dab or to a limited company: but merely that the gift, in question there was a gift the trustees could only give effect to by holding the property (which seems to have been all real estate) forever, and applying the income according to the rules. Nothing of that sort is directed here; the gift is ordered to be paid to the Superior for the time being; and the Superior, when she receives it, will be bound to account for it to the Convent--to put it so to speak into the common chest: but when there, it will be subject to no trust which will prevent the existing members of the Convent from spending it as they please. [Cocks v. Manners [1871] 12 Eq. 575]. 26. In my reading of this case and in the cases which follow it, the phrase "as they please" should be read "as and when they please" or more properly when they please." I do not accept the contention that these cases exclude use. [Cocks v. Manners [1871] 12 Eq. 575]. 26. In my reading of this case and in the cases which follow it, the phrase "as they please" should be read "as and when they please" or more properly when they please." I do not accept the contention that these cases exclude use. On the contrary, I hold that they involve use, but a use which may be performed immediately. Whether or not, having regard to the nature of the rule against perpetuities, that should validate the bequest on the ground that perpetuities may be avoided if the perpetual donee do decide to spend, is another question. So, however, it has been decided in In re: Clarke [1901] 2 Ch. 110 the bequest was to the committee for the time being of the Corps of Commissionaires to aid in the purchase of their barracks, or in any other way beneficial to that corps." It was held non-charitable. Re Amos [1891] 3 Ch. 164, 159 was avoided. At page 114 the phraseology of Cocks v. Manners [1871] 12 Eq. 575 is used. Will the legacy when paid be subject to any trust which will prevent the existing members of the Association from spending it as they please ? If not, the gift is good. So, also, if the gift is to be construed as a gift to or for the benefit of the individual members of the Association." In my opinion the first class of case involves a use, but a potentially immediate use. 27. In 1902, 2 Chance on 7647, comes a case in In re: Delany [1902] 2 Ch. 647 judgment of Mr. Justice Farwell, bequest to certain named persons, Nazareth House, Hammersmith, or their successors. Contended : beneficial gift. Held: bequests were not gift to named individuals for their own personal benefit, but to them us holders of offices and for the benefit of the associations in which they respectively held office. Objects: charitable, and, therefore, gifts void under the Mortmain Act of 1736, the Will having been made in 1885. This case should more properly be placed among those establishing use by nature and description of donee. 28. Cocks v. Manners [1871] 12 Eq. 575 was against followed in In re: Drummond [1914] 2 Ch 91. Objects: charitable, and, therefore, gifts void under the Mortmain Act of 1736, the Will having been made in 1885. This case should more properly be placed among those establishing use by nature and description of donee. 28. Cocks v. Manners [1871] 12 Eq. 575 was against followed in In re: Drummond [1914] 2 Ch 91. A bequest for "the Old Bradfordians' Club to be utilised as the committee of the Club should think best in the interests of the Club." Therefore general purposes. Held: Non-charitable. Perpetuity avoided by applying Cocks v. Manners [1871] 12 Eq. 575. Phrase used by Mr. Justice Eve, a Chancery Judge, who began his judgment by saving "he could not hold, as the result of the Will and codicil together, that the residuary gift of realty and personality for the Old Bradfordians' Club was a gift to the members individually. There was, in his opinion, a trust . . . . but the legacy was not subject to any trust which, would prevent the committee of the Club from spending it in any manner they might decide for the benefit of the class intended. 29. In In re: Price [1943] 1 Ch. 426 again, absolute gift was rejected, page 427. In re: Drummond [1914] 2 Ch 91 accepted, and perpetuities, therefore, avoided. Contrast the case in the note; Macaulay's Estate [1943] 1 Ch. 435, where owing to the reference to "maintaining" a building the case was treated as an endowment, or permanent use, as in Carne v. Long 2 DeG F. & J. 75 (1800). The phrase in the 4th paragraph of the judgment is, however, liable, in my opinion, to misconstruction. His Lordships referred to In re: Drummond [1914] 2 Ch 91 and Carne v. Long 2 DeG F. & J. 75 (1800) and proceeded:--"Those two cases illustrate exactly the point for consideration. If the gift is to be for the endowment of the Society to be held as an endowment, and the Society is, according to its form perpetual, the gift is bad, but if the gift is an immediate beneficial legacy, it is good. I do not think Lord Buckmaster can have intended to convey that In re: Drummond [1914] 2 Ch 91 the gift was held to be a beneficial legacy. It was immediate in the sense that the corpus could be immediately spent. I do not think Lord Buckmaster can have intended to convey that In re: Drummond [1914] 2 Ch 91 the gift was held to be a beneficial legacy. It was immediate in the sense that the corpus could be immediately spent. It was not beneficial in the sense of free gift. 30. If, therefore, these bequests are to any use, they are to an immediate or Cocks v. Manners [1871] 12 Eq. 575 use and are not hit, in my opinion, by sec. 114 of the Indian Succession Act. 31. Under sec. 118, whatever kind of use they are, immediate or perpetual, they will be hit unless charitable or religious. For this purpose, and for this purpose only, does it become material to consider whether the Societies in question, the donees, are by reason of their articles charitable societies. 32. In view of the fact that this point arises only, in the event of my decision as to no use being erroneous, I have given to it no great attention. The objects are set out, as regards the company, at page 4 of the brief of correspondence, and as regards the National Secular Society, at page 1. They are analagous. The purposes are largely educational, partly what is regarded in the English Law as political, and the fundamental idea is the eradication of revealed religion, especially the Established Church, and its replacement by reason. Much change has taken place in the attitude of the English Courts towards such movements or organisations with such objects since the days of Brings v. Hartley [1850] 19 L. J. (Ch.) 416. In 1917 having regard to the decision in Bowman's case [1917] A. C. 406, "illegality" was eliminated. Since then still more change. See In re: Price [1943] 1 Ch. 426 and other cases. 33. I am of opinion however that according to the fundamental ideas which still obtain, the eradication of revealed faith, as such, does not harmonise with the English legal view of charity. A god of some kind is still a legal necessity. In my opinion, therefore, notwithstanding again the enlargement of views, to include purposes which formerly would have been considered political, these Societies would not be accepted as religious, and therefore charitable, or charitable societies. 34. A god of some kind is still a legal necessity. In my opinion, therefore, notwithstanding again the enlargement of views, to include purposes which formerly would have been considered political, these Societies would not be accepted as religious, and therefore charitable, or charitable societies. 34. This being the case, they would logically be regarded as organisations of a political nature, and the trust, if any, one for political objects. If a use exists of a permanent nature, these bequests might yet be defeated on the ground of "unadministrability." That line, however, is not at all open if there is no use, as I have held, or if the use is of an immediate nature, or of such a kind that the Court does not feel called upon to undertake any administration. [Ogden's case [1933] 1 Ch. 679]. 35. This suit is decided against the Plaintiff on the ground first discussed, namely, that on the authority of Bowman's case [1917] A. C. 406, no trust is involved. 36. The suit therefore, is dismissed. The point of law is, however, one of interest and intricacy, and I am clear that the costs should be payable out of the estate on sides as between attorney and client, including reserved costs. Costs may include fees actually paid to Counsel. 37. Certified for two Counsel for all parties. 38. All Bills of costs will be certified by Mr. H.N. Bhattacharjee of Messrs. Sandersons and Morgans. To-day will be treated as of a hearing.