The Most Reverend Joseph Colgan … vs Administrator-General Of Madras … on 2 March, 1892

Madras High Court
The Most Reverend Joseph Colgan … vs Administrator-General Of Madras … on 2 March, 1892
Equivalent citations: (1892) ILR 15 Mad 424
Bench: A J Collins, Kt., Handley


1. This appeal relates only to the sum of Rs. 28,000, part of the sum of Rs. 42,000 bequeathed by the testatrix Hosannah Arathoon to her granddaughter Maria Hosannah Chambers, afterwards Mrs. Supple, and her children, which sum of Rs. 28,000 in the event, which has happened, of Maria Hosannah Chambers dying without issue, testatrix directed should go and be added to the therein-before mentioned sum of Rs. 28,000, so that the income of the last-mentioned sum of Rs. 28,000 should be added to the income of the former Rs. 28,000 and be given to perpetual masses for the benefit of her (testatrix’s) soul and for the souls in purgatory. The first point raised in appeal is that this sum of Rs. 28,000 does not form part of the estate of Hosannah Arathoon and therefore that the Administrator-General has nothing to do with it, because, by the settlement made upon the marriage of Maria Hosannah Chambers with Mr. Supple, the Government promissory note, then representing the sum of Rs. 42,000, of which this Rs. 28,000 is part, became vested in the trustees of that settlement upon the trusts thereby declared. We think there is nothing in this point. The settlement could only deal with the interest which Maria Hosannah Chambers took under the will and could not affect the dispositions of the will which were to take effect in the event of her dying without issue. The disposition of the sum of Rs. 42,000, in the events which have happened, is governed by the will and the Government promissory note representing that sum having through the proceedings in the equity suit got into the hands of the Administrator-General, he is right in asking the Court for directions as to its proper application under the will of his testatrix.

2. The other and most important question argued in this appeal is as to the validity of the gift over of this sum of Rs. 28,000 on the death of Maria Hosannah Chambers without issue. The point has been argued very fully by Counsel on both sides and a number of authorities bearing on the question have been cited. On a careful consideration of the arguments and the cases quoted, we must agree with the learned Judge in the Court below that the case is concluded by authority and that the bequest in question is void as violating the rule against perpetuity.

3. That a bequest for the performance of masses, according to the forms of the Roman Catholic religion, whether the masses be for the testator’s own soul or for souls generally, would be void if the case occurred in England, is admitted. The eases of West v. Shut tleworth 2 My. & K., 684, Heath v. Chapman 2 Drewry, 417, in re Blundell’s Trusts 30 Beav., 360 are sufficient authorities for that position. But it is argued for appellants that these and other analogous cases were decided upon the English law of superstitious uses which has no application to this country. West v. Shuttleworth 2 My. & K., 684 certainly was decided on the law of superstitious uses. There the testatrix gave legacies to certain Roman Catholic priests and chapels for the benefit of their prayers and masses for the repose of her soul and that of her husband. The Master of the Bolls, after quoting with approval the observation of Sir W. Grant in Cary v. Abbot 7 Ves., 490, that there was no statute making void superstitious uses generally and that the statute of Edward VI., related only to superstitious uses of a particular description then existing, goes on to say:–” The legacies in question are not therefore within the terms of the statute of Edward VI., but that statute has been considered as establishing the illegality of certain gifts; and, amongst others, the giving legacies to priests to pray for the soul of the donor has in many cases collected in Duke, been decided to be within the superstitious uses intended to be suppressed by that statute. I am therefore of opinion that these legacies to priests and chapels are void.” The other cases following West v. Shuttleworth 2 My. & K., 684 seem also to have been decided on the law of superstitious uses. This law has, in several cases in the Calcutta High Court, been held to have no application to this country. Das Merces v. Cones 2 Hyde, 65, Andreivs v. Joakim 2 B.L.R., O.C. 148, Judah v. Judah 5 B.L.R., O.C. 433. As far as we know, the question has never been decided in this Court, but we see no reason for dissenting from the view taken by the Calcutta High Court. But this is not sufficient to establish the validity of bequests such as those in question in this suit. There is another ground on which they may be invalid, viz., that they infringe the rule against perpetuities. On this ground many bequests have been held invalid by the English Courts, e.g., gifts for the keeping in repair monuments or tombs. Rickard v. Robson 31 Beav. 244, Fowler v. Fowler 33 Beav., 616, Fisk v. Attorney General L.R.,4 Eq., 521, Dawson v. Small L.R., 18 Eq., 114.

4. The general rule is that all gifts, whether of real or personal property, which purport to appropriate property to a certain purpose in perpetuity, are void as contrary to public policy unless the purpose be a charitable one. What is a charitable purpose so as to make the gift a valid gift, although it purports to create a perpetuity, has been the subject of very many decisions of the English Courts, which have taken as their guide the preamble of the Statute 43 Eliz., Cap. 4, which enumerates various charitable purposes, though the Courts have not confined themselves to the charitable purposes there enumerated, but have included as charitable other purposes analogous thereto. The general principle appears to be that a charitable purpose must be one for the benefit of the public or a section of the public, and not for the private benefit of the donor or his family or of certain individuals. It is not necessary, however, in the present case to discuss the question whether on general principles gifts for masses for the soul of the donor or those of others, should be considered to be for charitable purposes so as to exempt them from the rule against perpetuities. The contrary has been decided in many cases by which we consider we are bound. In the case of West v. Shultletvorth 2 My. and K., 684 before quoted, though the gift was held void on the ground that it was for superstitious uses, it became necessary to decide the question whether the purpose was a charitable one in order to determine what was to become of the void legacies, for if the purpose was a charitable one, the duty of appropriating the amount of the legacies to other charitable purposes devolved upon the Crown, if on the contrary the purpose was not charitable the next of kin took. The Master of the Rolls held that the purpose of the legacies was not charitable and therefore that they went to the next of kin. In Heath v. Chapman 2 Drewry, 417 trusts were declared by a will for certain Roman Catholic chapels for saying masses and requiems for the soul of the donor and for other souls and for the souls of the “pious dead” and for other pious purposes. The gift for masses, etc., was held to be void as being for superstitious uses and as the pious uses could not be separated from the void uses, the whole gift was held bad and the purpose not being a charitable one, the property was decreed to go to the residuary legatees. A similar decision was passed in re Blundell’s Trusts 30 Beav., 360. In the case of Yeap Cheah Neo v. Ong Cheng Neo L.R., 6 P. 381 a Chinese woman resident in Penang by will directed (inter alid) that a house termed ” Sow Chong ” for performing religious ceremonies to the testatrix’s deceased husband and herself should be erected. It was held by the Judicial Committee that the devise was void being in perpetuity and not for a charitable purpose. Their Lordships quote with approval the decision of the Chief Justice Sir P. Benson Maxwell in the case of Choah Choori Nioh v. Spottis-woode (Wood’s Oriental Cases) that whilst the English Statutes relating to superstitious uses and to mortmain ought not to be imported into the law of the Colony, the rule against perpetuities was to be considered a part of it and go on to observe:–” This rule which certainly has been recognised as existing in the law of England independently of any statute, is founded upon considerations of public policy, which seem to be as applicable to the condition of such a place as Penang as to England, viz., to prevent the mischief of making property inalienable, unless for objects which are useful or beneficial to the community.” And further on in the judgment they observe, speaking of the ceremonies to be performed in the Sow Chong House:– “Although it certainly appears that the performance of these ceremonies is considered by the Chinese to be a pious duty, it is one which does not seem to fall within any definition of a charitable duty or use. The observance of it can lead to no public advantage and can benefit or solace only the family itself. The dedication of this Sow Chong House bears a close analogy to gift to priests for masses for the dead. Such a gift by a Roman Catholic widow of property for masees for the repose of her husband’s soul and her own was held in West v. Shuttleworth 2 My. and K., 684 not to be a charitable use, and, though not coming within the statute relating to superstitious uses, to be void. The learned Judge was therefore right in holding that the devise being in perpetuity was not protected by its being for a charitable purpose. It is to be observed that in this respect a pious Chinese is in precisely the same condition as a Roman Catholic who has devised property for masses for the dead or as the Christian of any Church who may have devised property to maintain the tombs of deceased relatives. All are alike forbidden on grounds of public policy to dedicate lands in perpetuity to such objects.” It is sought to distinguish this case from the present on two grounds–(1) that the gift there was of immoveable property; (2) that the rule against perpetuities does not exist in India, where dedications of property in perpetuity for the performance of religious ceremonies, maintenance of tombs and other purposes not allowed by English law to be charitable, have always been held lawful amongst Hindus and Muhammadans.

5. As to the first point we observe that the rule against perpetuities has always been held to apply equally to gifts of personal as to those of real property. The cases as to monuments and tombs quoted above were all of them cases of money bequests.

6. As to the second point we think it is not a correct statement of the law applicable to India to say that because certain dispositions of property in perpetuity not allowed by English law are allowed to Hindus and Muhammadans, therefore the rule against perpetuities has no application to India. The rule being founded on public policy must be a part of the territorial law of England in all her Colonies and Dependencies. But Hindus and Muhammadans have had their respective personal laws preserved to them by the Charters of the High Courts and by the Regulations. The personal law of the Hindus is intimately connected with their religion, and therefore allows of gifts in perpetuity to religious objects to a much greater extent than the English law. Thus absolute gifts of land or money in perpetuity to an idol and for other religious purposes have been recognised by many decisions. See Mullick v. Mullick 1 Knapp, 245, Juggut Mohini Dossee v. Mussnmat Sokheemoney Dossec 14 M.I.A. 289. In his judgment in Alami v. Konnu Appeals Nos. 80 and 105 of 1886 Mr. Justice Muttusami Ayyar observes:– “Neither the English law which forbids bequests for superstitious uses, nor the rule which prohibits the creation of perpetuities is applicable to gifts to idols in this country;” so the Muhummadan law of Wakf or appropriation founded on the Muhammadan religion, allows of the appropriation of property in perpetuity for the performances of religious services, the maintenance and repair of tombs and other purposes not held to be charitable by the English law. See the judgment of WEST, J., in Fatmabibi v. The Advocate-General of Bombay I.L.R., 6 Bom., 42. The Armenian or other Roman Catholic has no personal law reserved to him and we fail to see how lie is in any different position with regard to his power to dispose of property for charitable purposes from the subject of the decision in Yeap Cheah Nev v. Ong Cheng Neo L.R., 6 P.C., 381. The principles laid down in that decision have been held by the High Court of Bombay to apply to Parsees–Limji Nowroji Banaji v. Bapuji Buttonji Limbuwalla I.L.R., 11 Bom., 441, and, in our opinion, they are equally applicable to the members of the community to which the testatrix whose will is in question in this suit belonged. Were the matter res integra we are inclined to think that either the rule against perpetuities, which is founded on considerations of public policy, should be applied in the same manner to all classes of the community in India, or the relaxation of the rule which has been allowed to Hindus and Muhammadans should be allowed also to those professing other religions. Upon general principles there seems to be no reason why a Hindu or Muhammadan should be allowed to dedicate property in perpetuity for the services of his religion or the maintenance of the tombs of his family, and a Christian should be forbidden to do the same. But we conceive that we are not at liberty to extend the relaxation of the rule against perpetuities conceded to Hindus and Muhammadans by virtue of the reservation of their personal law, to other inhabitants of India to whom no personal law has been reserved. It may be that legislation in the direction of placing all Her Majesty’s subjects in India upon a more equal footing in this respect is desirable. The decisions of the High Court of Calcutta before quoted–Das Merces v. Cones 2 Hyde, 65, Andrews v. Joakim 2 B.L.R. O.C. 148 are no doubt express authorities in favour of the validity of gifts such as that in question in this suit, but the question of the rule against perpetuities was not raised in them; they were decided solely on the ground that the law against gifts for superstitious uses was not applicable to India. So far as they are authorities for the validity of gifts for the performance of masses they must be taken to be overruled by Yeap Cheah Neo v. Ong Cheng Neo L.R. 6 P.C. 381. We must agree with the learned Judge in the Court below in holding that the bequest in question was void and that the legacy falls into the residue. We think, however, that the fourth and fifth defendants, the Roman Catholic Archbishop and Vicar-General of Madras are entitled to their costs out of the fund throughout. The litigation was caused by the will of the testatrix, and they could not well have done otherwise than come forward and support the legacy given for purposes recognized as lawful and beneficial by their religion. We shall modify the decree of the lower Court by directing that the costs of fourth and fifth defendants of this suit be paid by the Administrator-General out of the estate of Hosannah Arathoon, In other respects, we confirm the decree of the lower Court and dismiss this appeal. We also direct that the costs of all parties to this appeal be paid out of the estate.

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