Section 14 of the Transfer of Property Act rule against perpetuity as substantive law in India. It is, however, an equally well-established Rule of Law that this rule against perpetuities does not apply to Charitable Trusts. This exception to the rule is reproduced in Section 17 of the Transfer of Property Act, which enacts that the restrictions in Sections 14, 15 and 16 shall not apply to property transferred for the benefit of the public in the Advancement of Religion–Knowledge–Commerce–Health–Safety or any other object beneficial to mankind.

This exception in favour of Charitable Trust, is fully recognised in English law. In In re Bowen [1893] 2 Ch. 491 at p. 494: 62 L.J. Ch. 681 Stirling, J., says:” Property may be given to a charity in perpetuity.”

In Tudor on Charities and Mortmain, 4th Edition, at page 181, it is said: This exception from the rule against perpetuities is well established. It is founded upon grounds of public policy, and is essential to the useful existence of Charitable Trusts.

In order, however, to have the benefit of the exemption from the rule against, perpetuities, a Trust must be charitable within the meaning which the, law assigns to that term.

Meaning of Charity

Tudor, at page 35 of the 4th edition, most admirably sums up the result of numerous authorities as to what in law is the meaning of Charity, in the following passage: The word ‘charity’ has a technical meaning in English law, which can now only be defined by a reference to the Statute; 43 Eliz. ch. 4. “Its preamble enumerates” a list of charities so varied and comprehensive that it became the practice of the Court to refer to it as a sort of index or chart.

The objects enumerated in the preamble have in fact been treated as instances, the result being that ‘those purposes are charitable which the statute enumerates or which by analogies are deemed within its spirit or intendment.’ There is, moreover, one thread which connects the whole of the objects enumerated thereby, namely,’ the consideration whether, in order to fall within the Act, the gift was, as had been said, a gift for general public use which extended to the poor as well as to the rich.

Advancement of religion

One of the purposes which have been held charitable within the language or spirit of this preamble is “advancement of religion.”

In England on a review of the cases relating to Religious Trust, it will be found that Religious Trusts or Trusts relating to religion have been held void either as being forbidden by law or as falling under the doctrine of superstitious uses. In England there is an established Church.

In India we have no established Church. By some of the older statutes churches for certain denominations of Christians were established in India and supported from the revenues of the country, but that was merely for the purpose of encouraging Christians to go out to the country and for the convenience of such Christian, as came and settled either temporarily or permanently in India.

In this country we have unfettered religious toleration. Everyone is entitled to profess openly the religion he believes in. In the eye of the Law in India all religions are alike, and it follows therefore that each religious community professing a particular religion, and for the matter of that each member of such community, is entitled as of right to do anything that to him may seem right for the maintenance and advancement of the religion which, the community or individual member thereof professes and follows

Meaning of Charitable Trust

Mr. Justice Chitty in In re Foceaux [1895] 2 Ch. 501 at p. 504, says:

Charity in law is a highly technical term. The method employed by the Court is to consider the enumeration of charities in the Statute of Elizabeth, bearing in mind that the enumeration is not exhaustive. Institutions whose objects are analogous to those mentioned in the statute, are admitted to be charities and, again, institutions which are analogous to those already admitted by reported decisions are held to be charities.

The pursuit of these analogies obviously requires caution and circumspection. After all, the best that can be done in to consider each rose as it arises, upon its own special circumstances. To be a charity there must be some public purpose–something tending to the benefit of the community. The benefit in point of local area need not extend to the public at large; a trust for the benefit of the inhabitants of a particular district will suffice.

It was here held that societies for the suppression and abolition of vivisection were charities within the legal definition of the term Charity. The learned Judge concluded his judgment by observing:

The purpose of those societies, whether they are right or wrong in the opinions they hold, is charitable in the legal sense of the term. The intention is to benefit the community; whether, if they achieved their object, the community would, in fact, be benefited is n question on which I think the Court is not required to express an opinion.

Cases that held Religious Trusts good Charitable Trusts

It must be remembered that in England, after the Reformation, persons who differed from the established religion–such as Protestant Dissenters, Roman Catholics and Jews were held to be obnoxious to the law, everything that was calculated to have for its object the propagation of the rights of a religion not tolerated by the law was included in the comprehensive expression “superstitious use,” and all gifts for superstitious purposes or uses were held to be contrary to the Policy of the Law and therefore illegal.

Religious Trusts in India have a much greater analogy to Religious Trusts in Ireland since disestablishment of the Church in that country in 1869 by 32 and 33 Victoria, chapter 42. Of course, in later years in England many enabling and relieving Acts have been passed, and many disabilities against those who are not members of the established Church have been removed, but still those relieving Acts did not repeal the whole law of Superstitious Uses, and the doctrine still holds away–although in the present time to a limited extent even in England.

In Powerscourt v. Powerscourt (1824) 1 Molloy 616, a Testator by his Will devised £ 2,000 to Trustees in trust to lay out the sum at their discretion until his son came of age, in the Service of my Lord and Master, and I trust Redeemer.”

This bequest was held to be a good and valid bequest to charity and was ordered by the Court to be carried into effect. This is an Irish case, but in 1895 in the case of Farquhar v. Darling [1896] 1 Ch. 50, Mr. Justice Stirling refers to this case with approval and follows it. There the Testatrix bequeathed the residue of her property to the poor and to the service of God.”

Mr. Justice Stirling in giving judgment says:

I have to construe this Will according to the ordinary meaning of the language as used by English testators; and I think that when ‘the service of God’ is spoken of as it is in this Will, no one so construing the expression would hesitate to say that service in a religious sense was intended.

The learned Judge then quotes a passage from the judgment of Lord Manners, L.C., in Powerscourt v. Powerscourt (1824) 1 Molloy 616 and concludes his judgment in these words:

It has not been disputed before me that a bequest for religious purposes is a good charitable bequest; and, on the authority of the case to which I have just referred, as well as upon my own view of the true construction of the Will, 1 hold that the residuary estate is well given to charitable purposes.

In Webb v. Oldfield [1898] 1 Ir. R. 431, a Testator devised a portion of a perpetual yearly rent to two Vegetarian Societies in equal moieties for the use of the said societies, to be paid to them for ever.

The Master of the Rolls held that the objects of those Societies might be fairly described as charitable within the principle of decided cases, and that there was a valid gift to the two societies in equal moieties, and the Court of Appeal affirmed the decision.

In Straus v. Goldsmid (1837) 8 Sim. 614, the Court in England had before it the Will of a Testator professing the Jewish religion. He bequeathed a third of the residue of his estate to the Rulers and Wardens of the Great Synagogue in the City of London, with directions to them to utilise the interest and dividends of the said third of the residue every year on the eve of Passover in distributing, at least amongst 10 worthy men… to purchase meat and wine fit for the service of the two nights of Passover.

The Vice-Chancellor held that the bequest, being intended to enable persons professing the Jewish religion to observe its rites, was good, and the Trust was upheld.

In Attorney-General v. Stepney (1804) 10 Ves. Jun. 22, a bequest of the residue of personal estate for the increase and “improvement of Christian knowledge and promoting religion,” was held by Lord Eldon to be good charitable bequest, as it had for its object a General charitable purpose of promoting Christian knowledge.

In a later case, Baker v. Sutton (1836) 1 Keen 224; 5 L.T. Ch. 264, the Master of the Rolls, Lord Langdale, refers to this case and follows it. In this case the testator made a bequest of the residue of his personal estate for such religious and charitable institutions and purposes within the Kingdom of England as in the opinion of the testator’s trustees should be deemed fit and proper.

The Master of the Rolls, in the course of his judgment, observes (at p. 233):

All the cases, with one exception, go to support the proposition, that a religious purpose is a charitable purpose.

In the Attorney-General v. Stepney (1804) 10 Ves. Jun. 22. Lord Eldon assumes throughout his judgment, that a religious purpose was a charitable purpose…. I am of opinion that the bequest, in the present case, for such religious and charitable institutions and purposes as the trustees should think fit, is a good charitable gift.

Townsend v. Carus (1843) 3 Here 257 is another case in which a Testatrix bequeathed a legacy to Trustees upon trust to pay, divide or dispose thereof, unto or for the benefit or advancement of such societies, subscriptions or purposes, having regard to the Glory of God in the spiritual welfare of His creatures, as they shall in their discretion see fit.” This gift was construed to be a gift for religious purposes, and as such valid and restricted to such purposes.

Another very instructive case is that of the Attorney General v. Lawes (1849) 8 Hare 32. In that case the testatrix by her Will gave directions to executors “to pay unto Messrs. Drummonds, Bankers, a clear yearly sum of £100 for the sole use and benefit of any of the ministers and members of the churches now forming upon the apostolical doctrines brought forward originally by the late Edward Irving, who may be persecuted, aggrieved, or in poverty for preaching or upholding those doctrines, or half the sum may be appropriated for the benefit of the church founded by the late Edward Irving in Newman Street.”

This bequest was held by the Court to be a valid charitable bequest of a perpetual annuity. The Vice-Chancellor, at the close of counsel’s argument, observed that the bequest was not the less a charitable bequest from the fact that it was given for the benefit of a limited class of persons–that it was not the number of the objects which made the distinction between a public and private charity–that it was not the less a charity because it was confined to those members, of a particular class of persons who were subject to certain grievances and not to the class at large

In a very peculiar case of Thornton v. Howe (1862) 31 Beav. 14, the Testatrix Ann Essam bequeathed the residue of her estate both real and personal, in trust, for printing, publishing and propagating the sacred writings of Johanna Southcote.” The Heiress-at-Law of the Testatrix filed a Bill for a Declaration that the trust was void in law. She charged that the writings of Johanna Southcote…purport to declare, maintain or reveal that she was with child by the Holy Ghost and that a second Messiah was about to be born of her body, and that her writings were of a blasphemous and profane character, and that the trust was for the propagation of doctrines subversive of or contrary to the Christian religion.

The Master of the Rolls, Sir John Romilly, before giving judgment, himself studied the works of Joanna Southcote. He came to the conclusion that she was a foolish ignorant woman, of an enthusiastic turn of mind. He said he had found much in her writings that in his opinion was very foolish, but there was nothing in them that was likely to make persons who read them immoral or irreligious, and he declined to declare the devise of the testatrix as invalid by reason of the tendency of the writings of Johanna Southcote.

Lord Macnaghten, in the great judgment he delivered in the House of Lords in the case of the Commissioners for special purposes of Income Tax v. Pemsel [1891] A.C. 531 at p. 580; 55 J.P. 805, says:

That according to the law of England a technical meaning is attached to the word ‘charity’ and to the word’ charitable’ in such expressions as ‘charitable uses,’ ‘charitable trusts’ or ‘charitable purposes,’ cannot, I think, be denied. The Court of Chancery has always regarded with peculiar favour those trusts of a public nature which, according to the doctrine of the Court derived from the piety of early times, are considered to be charitable.

Charitable uses or Trusts form a distinct head of equity. Their distinctive position is made the more conspicuous by the circumstances that owing to their nature they are not obnoxious to the rule against perpetuities, while a gift in perpetuity not being a charity is void…. In Ireland, though neither the Statute of Elizabeth nor the so-called Statute of Mortmain extended to that country, the legal and technical meaning of the term ‘charity’ is precisely the same as it is in England.

His Lordship then goes on to enunciate the four principal heads under which he divides charities. He says:

‘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.