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2003(5) Supreme 229
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
V.N. Khare, CJI., S.B. Sinha and AR. Lakshmanan, JJ.
John Vallamattom and Anr. -Petitioners
versus
Union of India -Respondent
Writ Petition (C) No. 242 of 1997
Decided on 21-7-2003
Counsel for the Parties :
For the Petitioners : Romy Chacko and Ms. V. Mohana, Advocates.
For the Respondents : P.P. Malhotra, Sr. Advocate, Ms. Anjani Aiyagari, S.N. Terdol and B.K. Prasad, Advocates.
Per V.N. Khare, CJI:
Held : Section 118 of the Act imposes a restriction only on the Indian Christians. The said restriction is not applicable to the citizens belonging to other religions including Parsis. The short question, therefore, which arises for consideration is as to whether the said restriction imposed by Section 118 of the Act is a reasonable one. The right to own or dispose of a property mainly arises either by operation of law or by reason of some act or event. An Indian Christian in terms of the impugned provision is forbidden from making any bequest excepting in the manner provided for therein. Such bequest is prohibited only in the event the testator has a nephew or a niece or any nearer relative. Indisputably, a wife of a testator, in terms of definition as contained in Section 28 read with the First Schedule of the Act would not be a near relative, although an adopted son would be. It is difficult to appreciate as to why a testator would, although, be entitled to bequeath his property by way of charitable and religious disposition if he has a wife but he would be precluded from doing so in the event he has a nephew or a niece. Furthermore, a charitable disposition of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety, or any other object beneficial to the mankind has specifically been acknowledged not only in different religious texts but also in different statutes. Section 18 of the Transfer of Property Act, 1882 states that restrictions in Sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of public in the advancement of religion, knowledge, commerce, health, safety, or any other object beneficial to mankind. The Indian Succession Act does not define as to what would be a charitable disposition, but the transfers to which it refers are the same as those described in Section 92 of the Code of Civil Procedure, 1908, as trusts created for a public purposes of a charitable or religious nature. The illustration appended to the impugned provision gives a list of bequests for religious or charitable uses which is of wide import. It is really baffling that no protection has been given to the near relatives against death-bed gifts for non-religious or charitable purpose. Furthermore, there is no restrictive provision with regard to gift intervivos. It is really strange as to how a statute may permit death-bed gifts to any other person for any purpose whatsoever including illegal or immoral purposes but restriction has been imposed on testamentary disposition for religious or charitable uses. It may be seen that as per Section 118 of the Act bequest of property for religious and charitable use fails if for any reason the testator suffers from the misfortune of death within twelve months of execution of Will or if it is not deposited in the place provided by law within 6 months. Since as per the impugned provision the testator who lives beyond the statutory period of twelve months is not able to execute his wishes in relation to his property, the impugned provision defeats the object of the Will. In this view of the matter, such a provision is unreasonable and arbitrary. (Paras 22 to 25)
Charitable purpose includes relief to poor, education, medical relief, advancement of objects of public utility, etc. As the aforesaid charitable purposes are philanthropic and since a person s freedom to dispose of property for such purposes has nothing to do with religious influence, the impugned provision treating bequests for both religious and charitable purposes is discriminatory and violative of Article 14 of the Constitution. Further, it may be seen that there is no rationale behind limiting the survival of the testator to a period of twelve months in order to give effect to his wishes. There is also no rationale in the classification between a testator, who survives beyond twelve months, and a testator, who does not survive beyond the same period, in declaring the will of the former as void and that of the latter as valid. Apart from the fact that the period or duration of life of a testator has no relation with the purpose of Will, there appears to be no reason behind fixing twelve months period. Testators constitute a homogeneous class and they cannot be divided arbitrarily on the basis of duration of their survival which is unrelated to the purpose of executing a Will. In that view of the matter, the period of twelve months has no nexus with the object of performing a philanthropic act. Thus, the impugned provision is violative of Article 14 of the Constitution. (Para 26)
Per S.B. Sinha, J. [Concurring Opinion]
Renouncement of world by a person following any religion is necessarily not the essential practice of the religion which is meant for commonness. Gandhiji also said renouncement and enjoy. Such preachings for renouncement from the world have no co-relation with the tenets of Article 25 of the Constitution of India. The impugned provision was enacted to prevent persons from making ill-considered death bequest under religious influence. The object behind the said legislation was, therefore, to protect a section of illiterate or semi-literate persons who used to blindly follow the preachers of the religion. Such a purpose has lost all significance with the passage of time and, therefore, has to be declared ultra vires Article 14 of the Constitution of India. (Paras 51 to 53)
Per AR. Lakshmanan, J. (Concurring Opinion)
Whether in an enactment religious bequests by a Christian is discriminatory and violative of Articles 14 and 15 of the Constitution must be determined as per the rule of procedure laid down by Section 118 of the Act, which comes with the purview of Articles 14 and 15 of the Constitution, and it is, therefore, necessary that all testators who are similarly situated should be subjected to the same rule of procedure. There cannot be any unusual burden on Christian testators alone when all other testators making similar bequests for similar charities and similar religious purposes are not subjected to such procedure. Therefore, in my opinion, Section 118 of the Act is anamalous, discriminatory and violative of Articles 14, 15, 25 and 26 of the Constitution and should be struck down. (Para 63)
There is also no acceptable answer from the respondent as to why it regulates only religious and charitable bequests and that too, bequests of Christians alone. The whole case, in my view, is based upon undue, harsh and special burden on Christian testators alone. A substantive restriction is imposed based on uncertain events over which the testator has no control. I, therefore, have no hesitation to hold that Section 118 of the Act regarding religious and charitable bequests of all testators who are similar should be subjected to the same procedure. As the law stands today, a Christian cannot make a bequest for religious or charitable purposes without satisfying the conditions and procedures prescribed by Section 118 of the Act. Such a burden, procedural burden and substantive law burden is not falling upon Hindu, Muhammadan, Jaina or Parsi testators. (Para 65)
(ii) Indian Succession Act, 1925-Section 118-Bequest to religious or charitable uses-Right of Christians to profess, practise and propagate religion-Whether violated by provisions of Section 118 of the Act-Inapplicability of Arts. 25, 26 of the Constitution-Constitution of India-Articles 25, 26.
Held : Article 25 is subject to the other provisions contained in Part III of the Constitution of India. What was thought of by the Constitution makers while conferring right to profess, practise and propagate religion was that freedom of conscience be supplemented by freedom of unhampered expression of spiritual conviction. Article 25 provides freedom of profession meaning thereby the right of the believer to state his creed in public and freedom of practice meaning his right to give it expression in forms of private and public worships [See Stainislaus Rev. vs. State of M.P. (AIR 1975 MP 163)]. A disposition towards making gift for charitable or religious purpose may be a pious act of a person but the same cannot be said to be an integral part of any religion. It is not the case of the petitioners that the religion of Christianity commands gift for charitable or religious purpose compulsory or the same is regarded as such by the community following Christianity. The petitioner has not been able to place any material to show that disposition of property for religious and charitable purposes is an integral part of Christian religious faith. Disposition of property for religious and charitable purpose is recommended in all the religions but the same cannot be said to be an integral part of it. If a person professing Christian religion does not show any inclination of disposition towards charitable or religious purposes, he does not cease to be a Christian. Even certain practices adopted by the persons professing a particular religion may not have anything to do with the religion itself. Article 25 merely protects the freedom to practise rituals and ceremonies etc. which are only the integral parts of the religion. Article 25 of the Constitution of India will, therefore, not have any application in the instant case. For the self-same reasons, Article 26 may also not have any application in the instant case. (Paras 37 to 40)
(iii) Constitution of India-Article 44-Uniform Civil Code-Non implementation of Article 14-Parliament is still to step in for forming a common civil code in the country-A common civil code will help cause of national integration by removing contradictions based on ideologies. (Para 41)
Key Points: - The judgment holds Section 118 of the Indian Succession Act, 1925 unconstitutional for violating Article 14 (equality before law) (!) (!) (!) . - Section 118 imposes discriminatory restrictions on bequests for religious/charitable uses specifically affecting Indian Christians compared to other religious communities (!) (!) (!) (!) . - The Court discusses the absence of uniform civil code enforcement (Article 44) and urges Parliament to address uniformity; it notes pre-constitution status of the Act and its continued force only insofar as consistent with Part III, but ultimately strikes down the provision (!) (!) . - The decision emphasizes that charitable/religious bequests are not inherently tied to Christian faith and are violative of Articles 25 and 26 when singled out (!) (!) . - The judgment references international covenants (ICCPR Article 18, Declaration on the Right to Development) in evaluating the impugned provision (!) (!) (!) . - The petitioners demonstrate that Section 118 creates an irrational 12-month survival requirement and six-month deposit, with no nexus to the object of the law (!) (!) . - The Court notes that other communities (Hindus, Muslims, Parsis, etc.) are not subject to Section 118, leading to an anomalous, discriminatory regime (!) (!) . - The judgment culminates in allowing the writ petition and declaring Section 118 unconstitutional; costs are to be borne by each party (!) .
JUDGMENT
V.N. Khare, CJI.-In this petition under Article 32 of the Constitution of India we are concerned with the constitutionality of the provisions of Section 118 of the Indian Succession Act, 1925 (hereinafter referred to as the Act ).
2. Petitioner No. 1 is an Indian citizen and is a Christian Priest belonging to the religious denomination of Roman Catholics. The second petitioner is also a member of the Christian community. The petitioners are aggrieved by the discriminatory treatment meted out to the members of the Christian community under the Act by which they were practically prevented from bequeathing property for religious and charitable purposes and that has led them to file this writ petition.
3. The history of Section 118 of the Act can be traced to an ancient British statute of 1735 known as Charitable Uses Act, 1735 [hereinafter referred to as "1735 Act"]. 1735 Act provided that gift by Will after 24th June, 1736 of land for charitable purposes were void as a general rule, 1735 Act was repealed by Mortmain and Charitable Uses Act, 1888. Part I of Mortmain and Charitable Uses Act, 1888 prohibited assurance of land to charitable corporations by providing that land shall not be assured to or for the benefit of or acquired by or on behalf of any corporation in Mortmain otherwise than under Royal Licence or statutory authority was provided for and if so assured shall be forfeited to the Queen. As per the Mortmain statute the expression assurance included gift, conveyance, appointment, lease, transfer, settlement, mortgage, charge encumbrance, devise, bequest and every other instrument by deed, will or other instrument. The said statute also provided that the land may be assured by Will to or for the benefit of any charitable but unless the recipient charity was authorized to retain land by the court or the Charity Commissioner, the land must, notwithstanding any contrary direction contained in the Will, be sold within one year from the testator s death or such extended period as may be determined. If the land is not sold within the appointed period, the land will vest in the official Trustee of charity lands and Charity Commissioner was required to take steps to enforce the sale. The further restriction provided that every assurance of immoveable property for any charitable use is void unless it is executed within a period of twelve months before two witnesses and enrolled in Chancery within six months before the death. The said Act was enacted with a view to prevent persons from making ill-considered death-bed bequests under religious influence. Amending Act 1891, further provided that the land may be assured by Will to or for the benefit of any charitable use; but in such case it was required to be sold, as a rule, within one year from the testator s death.
4. Even though the statute of Mortmain created severe restrictions on assurance of land for charitable purposes, it provided exemption in respect of assurance of land of any quantity for a public park, museum, universities, colleges or to any local authority, assurance by Will not exceeding 20 acres for a public park or two acres for a museum, etc. In this respect it is relevant to mention that while borrowing the restrictive clauses for Mortmain Statute at the time of enacting Section 118 of Indian Succession Act, the Indian Legislature omitted to include the exemptions in favour of the various charitable uses as provided in the Mortmain and Charitable Uses Act, 1888. The consequence is that as per the impugned provision the testamentary disposition of property in relation to all forms of religious and charitable purposes is subject to the same restriction as contained in Section 118 of the Act.
5. Ultimately, on account of the harshness and unreasonableness of Mortmain Statutes, the same were repealed by the British Parliament by an Act known as Charities Act, 1960. The consequential provision of repeal is provided hereunder:-
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