# JOHN VALLAMATTOM AND ANR v. UNION OF INDIA

- **Citation:** [2003] Supp. 1 S.C.R. 638
- **Court:** Supreme Court of India
- **Decided:** 2003-07-21
- **Bench:** V.N. Khare, S.B. Sinha, Dr. Ar. Lakshmanan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/john-vallamattom-and-anr-v-union-of-india-19217
- **Pages:** 28

## Headnote

Constitution of India, 1950; Articles 13, 14, 15, 25, 26, 51 and 3721
Indian Succession Act, 1925; Section 118:
Testamentary disposition of property by Christians-Restriction to
bequest property to religious or charitable uses-Constitutionality of-Held:
Though restrictions prevent testator from making ill considered death-bed
bequest under religious influence but restrictions are arbitrary/unreasonable
as it restricts only the Christians in bequeathing property for charitable
D purposes-Bequeathing of property for charitable/religious purpose only if
the testator has a wife but having no nephew/niece or the testator survives
for 12 months after execution of the Will-Interpretive changes of the statute
effected by passage of time-Such restrictions are unreasonable/arbitrary/
discriminatory-Hence, violative of Article 14 of the Constitution of JndiaCharitable Uses Act, 1935-Mortmain and Charitable Uses Act, 1858E Charities Act, 1960-/ndian Succession Act, 1865.
F
Words and Phrases:
'Testamentary disposition of property', 'bequest', 'death-bed disposition',
'philanthropic act', 'suspect legislation '-Meaning of
Petitioners are members of the Christian community aggrieved by the
discriminatory treatment meted out to them in India under the Indian
Succession Act. They were prevented from bequeathing property for
religious and charitable purposes under Section 118 of the Act. Hence the
G present Writ Petition.
H
It was contended for the petitioners that the impugned provision
was violative of Articles 14 and 15 of the Constitution of India as it
discriminates against a Christian vis-a-vis non-Christian, against
testamentary disposition by a Christian vis-a-vis non-testamentary disposition,
638
JOHN VALLAMATTOM v. U.0.1.
639
against religious and charitable use of property vis-a-vis all other uses A
including not so desirable purposes, a (:hristian who has a nephew, niece or
nearest relative vis-a-vis Christian who has no relative at all against a
Christian who dies within twelve months of execution of the will of which he
has no control; that since the impugned provision owes its origin to the Statute
of Mortmain which was repealed in England, it could not be retained in the
Indian Statute Book particularly when it does not conform to the provisions B
contained in Part III of the Constitution of India; that since petitioners are
citizens of India, they have right to effectuate their wishes according to their
discretion with freedom to choose legatee under the will for the purpose of
bequest; that the impugned provision is violative of Article I of the Vienna
Declaration in the World Conference on Human Rights; and that contribution C
for religious and charitable purpose is an essential and integral part of
Christian Religious Faith; and that the impugned provision violates Articles
25 and 26 of the Constitution of India.
On behalf of the respondent, it was submitted that since the Indian
Succession Act - a pre-Constitution enactment having regard to Article D
372 of the Constitution, continues to be in force within the territory of
India; that the Indian Parliament is not bound by the legislative changes
in any foreign country; that since Indian Christians form a separate class
distinct from other communities in India, they could not be treated equally;
and that the secular matters like succession/marriage could not be brought E
within the guarantee enshrined under Articles 25, 26 and 27 of the
Constitution of India.
Allowing the Petition, the Court
HELD: Per Khare, CJ: I.I. The history of Section 118 of the Indian F
Succession Act can be traced to an ancient British statute known as
Charitable Uses Act, 1735. The Act was repealed by Mortmain and
Charitable Uses Act, 1888. 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. While borrowing G

## Text

_Characters 0–39,826 of 70,952. This is a partial read: ask again with offset=39826 for what follows._

A
B
c
JOHN VALLAMATTOM AND ANR.
v.
UNION OF INDIA
JULY 21, 2003
[V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.]
Constitution of India, 1950; Articles 13, 14, 15, 25, 26, 51 and 3721
Indian Succession Act, 1925; Section 118:
Testamentary disposition of property by Christians-Restriction to
bequest property to religious or charitable uses-Constitutionality of-Held:
Though restrictions prevent testator from making ill considered death-bed
bequest under religious influence but restrictions are arbitrary/unreasonable
as it restricts only the Christians in bequeathing property for charitable
D purposes-Bequeathing of property for charitable/religious purpose only if
the testator has a wife but having no nephew/niece or the testator survives
for 12 months after execution of the Will-Interpretive changes of the statute
effected by passage of time-Such restrictions are unreasonable/arbitrary/
discriminatory-Hence, violative of Article 14 of the Constitution of JndiaCharitable Uses Act, 1935-Mortmain and Charitable Uses Act, 1858E Charities Act, 1960-/ndian Succession Act, 1865.
F
Words and Phrases:
'Testamentary disposition of property', 'bequest', 'death-bed disposition',
'philanthropic act', 'suspect legislation '-Meaning of
Petitioners are members of the Christian community aggrieved by the
discriminatory treatment meted out to them in India under the Indian
Succession Act. They were prevented from bequeathing property for
religious and charitable purposes under Section 118 of the Act. Hence the
G present Writ Petition.
H
It was contended for the petitioners that the impugned provision
was violative of Articles 14 and 15 of the Constitution of India as it
discriminates against a Christian vis-a-vis non-Christian, against
testamentary disposition by a Christian vis-a-vis non-testamentary disposition,
638
JOHN VALLAMATTOM v. U.0.1.
639
against religious and charitable use of property vis-a-vis all other uses A
including not so desirable purposes, a (:hristian who has a nephew, niece or
nearest relative vis-a-vis Christian who has no relative at all against a
Christian who dies within twelve months of execution of the will of which he
has no control; that since the impugned provision owes its origin to the Statute
of Mortmain which was repealed in England, it could not be retained in the
Indian Statute Book particularly when it does not conform to the provisions B
contained in Part III of the Constitution of India; that since petitioners are
citizens of India, they have right to effectuate their wishes according to their
discretion with freedom to choose legatee under the will for the purpose of
bequest; that the impugned provision is violative of Article I of the Vienna
Declaration in the World Conference on Human Rights; and that contribution C
for religious and charitable purpose is an essential and integral part of
Christian Religious Faith; and that the impugned provision violates Articles
25 and 26 of the Constitution of India.
On behalf of the respondent, it was submitted that since the Indian
Succession Act - a pre-Constitution enactment having regard to Article D
372 of the Constitution, continues to be in force within the territory of
India; that the Indian Parliament is not bound by the legislative changes
in any foreign country; that since Indian Christians form a separate class
distinct from other communities in India, they could not be treated equally;
and that the secular matters like succession/marriage could not be brought E
within the guarantee enshrined under Articles 25, 26 and 27 of the
Constitution of India.
Allowing the Petition, the Court
HELD: Per Khare, CJ: I.I. The history of Section 118 of the Indian F
Succession Act can be traced to an ancient British statute known as
Charitable Uses Act, 1735. The Act was repealed by Mortmain and
Charitable Uses Act, 1888. 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. While borrowing G
the restrictive clauses for Mort main Statute at the time of enacting Section
118 of the 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. The consequence is that as per the impugned provision
the testamentary disposition of property in relation to all forms of religious H
640
SUPREME COURT REPORTS [2003) SUPP. I S.C.R.
A and charitable purposes is subject to the same restriction as contained in
Section 118 of the Indian Succession Act. 1647-B-C, H; 648-A-BI
1.2. Clause 1 of Article 13 of the Constitution of India in no uncertain
terms states that all laws in force in the territory of India immediately
before the commencement of the Constitution, in so far as they are
B inconsistent with the provisions of Part Ill of the Constitution, shall, t11
the extent of such inconsistency, be void. Keeping in view the fact that
the Indian Succession Act is a pre-Constitution enactment, the question
as regards its constitutionality will have to be judged as being law in force
at the commencement of the Constitution of India. By reason of clause 1
C of Article 13 of the Constitution of India, in the event, it be held that the
provision is unconstitutional the same having regard to the prospective
nature would be void only with effect from the commencement of the
Constitution. Article 372 of the Constitution of India per force does not
make a pre-constitution statutory provision to be constitutional. It merely
makes a provision for the applicability and enforceability of preD constitution laws subject to the provisions of the Constitution and until
they are altered, repealed or amended by a competent legislature or other
competent authorities. (651-B-DI
E
Keshvan Madhava Menon v. The State of Bombay, 119511 SCR 228,
relied on.
1.3. The underlying principle contained in Section 118 of the Act
indisputably was to prevent persons from making ill-considered death-bed
bequest under religious influence. It is beyond any cavil of doubt that the
restrictions imposed thereby have a great impact on a person who desires
F to dispose of his property in a particular manner which would take effect
upon or after his death. The concept of ownership of a person over a
property or a right although is a varying one includes right to dispose of
his property by way of will. The Indian Succession Act confers such a right
upon all persons'irrespective of caste, creed or religion he belongs to. Section
118 of the Act imposes a restriction only on the Indian Christians. The said
G restriction is not applicable to the citizens belonging to other religions
including Parsis.1651-G-H; 652-A, q
1.4. 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 onl}' in the event the testator has a nephew or a niece or
H any nearer relative. Indisputably, a wife of a testator, in terms of definition as
-
.• 1
JOHN VALLAMATTOM v. U.0.1.
641
contained in Section 28 read with the First Schedule of the Act would not be A
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.1652-D-F]
1.5. A charitable disposition of property for the benefit of the public in B
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. 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 C
CPC as trusts created for public purposes of a charitable or religious nature.
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 D
has been imposed on testamentary disposition for religious or charitable uses.
1652-F-H; 653-A-B]
1.6. Assuming that the purpose of Section 118 of the Act is to prevent
bequest of property under religious influence, there is no justification in
restricting testamentary disposition of property for charitable purpose. E
As the 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. (653-E-F]
F
1.7. 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. Besides, G
the period of duration of life of a testator has no relation with the purpose of
will, there is 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. Hence, the period of twelve months has no nexus with the object of
H
642
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A performing a philanthropic act. Thus, the impugned provision is violative of
Article 14 of the Constitution.1653-G-H; 654-AI
1.8. Once it is held that the underlying purpose for enacting the
provision was merely to thwart intluence exercised by people professing
religion resulting in death-bed disposition, having regard to the fact that
B such a contingency has adequately been taken care of in terms of Section
51 of the Act, the purport and Gbject of the Act must be held to be non-existent.
It may be true that the Indian parliament is not bound to take note of and
amend its statutory enactments keeping i11 view the amendments made in
England. But there cannot be any doubt whatsoever that while interpreting a
C restrictive statute, one may consider not only the past history of the concerned
legislation but the manner in which the same has been dealt with by the
legislature of its origin. A right of transfer of land indisputably is incidental
to the right of ownership and must be construed strictly. The constitutionality
of a provision, it is trite, will have to be judged keeping in view the interpretive
changes of the statute effected by passage of time. Hence Section 118 of the
D Act being unreasonable is arbitrary and discriminatory and, therefore,
violative of Article 14 of the Constitution. 1654-C-E, Fl
E
Mis. DLF Qutab Enclave Complex Educational Charitable Trust v. State
of Haryana and Ors., 120031 2 SCALE 145 and Kapila Hingorani v. State of
Bihar, 120031 4 SCALE 712, relied on.
2. It is trite that having regard to Article 13(1) of the Constitution,
the constitutionality of the impugned legislation is required to be
considered on the basis of laws existing as on 26th .January, 1950, but while
doing so the Court is not precluded from taking into consideration the
F subsequent events which have taken place thereafter. It is further trite
that the law although may be constitutional when enacted but with passage
of time the same may be held to be unconstitutional in view of the changed
situation. In view of the matter even if a provision was not unconstitutional
on the day on which it was enacted or the Constitution came into force,
by reason of facts emerging out thereafter, the same may i>e rendered
G unconstitutional. The world has witnessed a sea-change. This Court, therefore,
while considering the constitutionality of Section 118 of the Act, is entitled
to take those facts also into consideration. Though a restriction to make
testamentary disposition of the property to some extent is prevalent under
the Mohammedan law but therein the purpose is to protect the near relation
H which cannot be said to be the sole purpose underlying Section 118 of the
JOHN VALLAMATTOM v. U.0.1.
643
Act. 1655-F; 656-B-EI
A
Clarence Pais and Ors. v. Union of India, JT (2001) 3 SC 82, referred
to.
3.1. In the instant case, this Court is not concerned with the right of
a person to freedom of conscience but is only concerned with a question B
as to whether by reason of Section 118 of the Act the right of Christians
to profess, practise and propagate religion is violated. 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. Disposition of property C
for religious and charitable purpose is recommended in all the religions
but the same cannot be said to be an integral part of it. 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
would not have any application and so Article 26 may also not have any
application in the instant case. 1657-C-E, G; 658-A)
D
Stainislaus Rev. v. State ofM.P., AIR (1975) MP 163, relied on.
3.2. The two provisions viz. Articles 25 and 44 of the Constitution of
India show that the former guarantees religi!>us freedom whereas the latter
divests religion from socia.l relations and personal law. It is no matter of doubt E
that marriage, succession and the like matters of a secular character cannot
be brought within the guarantee enshrined under Articles 25 and 26 of the
Constitution. Any legislation which brings succession and the like matters
of secular character within the ambit of Articles 25 and 26 is a suspect
legislation. [658-C-E)
Smt. Sar/a Mudgal, President, Kalyani and Ors. v. Union of India and
Ors,. ll 995) 3 SCC 635, relied on.
Per Sinha, J. (Supplementing):
F
I. I. Message of charity and compassion is to be found in all religions G
without any exception. Only because charity and compassion are preached
in every religion, the same by itself would not be a part of the 'religious
practice' within the meaning of Article 25 of the Constitution of India. Thus
the Religion of Christianity encouraging the Christians to practise charities
to attain spiritual salvation is of not mucli relevance for this purpose. H
644
SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A Renouncement of world by a person following any religion is necessarily not
the essential practice of the religion which is meant for commonness. Such
preachings for renouncement from the world have no co-relation with the
tenets of Article 25 of the Constitution of India. (658-H; 659-A, B, GI
Lily Thomas and Ors. v. Union of India and Ors., (20001 6 SCC 224,
B referred to.
English Dictionary by Crillins, referred to.
1.2. The impugned provision was enacted to prevent person from making
ill-considered death bequest under religious influence. The object behind the
C said legislation was 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 its significance with the passage of time and, therefore, has to be
declared ultra vires Article 14 of the Constitution oflndia. (659-H; 660-AJ
D
Per Dr. AR. Lakshmanan, J (Supplementing):
I.I. The harsh and rigorous procedure envisaged under Section 118 of
the Indian Succession Act in relation to testamentary disposition of property
for religious and charitable use does not apply to members of Hindu,
Mohammadan, Buddhist, Sikh or Jain Community by virtue of Section 58 of
E the Act. At the same time, since no exemption is granted by the State
Government to the members of the Christian community under Section 3 of
the Act, Christians cannot bequest property for religious or charitable use
unless fresh will is executed on the expiry of every 12 months, if the testator
does not suffer from the misfortune of death within the statutory period of 12
months. There is no justification in retaining the impugned provision in the
F statute book, which is arbitrary and violative of Article 14 of the Constitution,
since the Mortmain Statutes were repealed by the Charities Act, and by that
the very basis and foundation of the impugned provision has become nonexistent. The impugned provisions are also violative of Articles 25 and 26 of
the Constitution inasmuch as it is an essential and integral part of Christian
G religious faith to give property for religious and charitable purposes. The
impugned provision defeats object of the will and is harsh, unjust and arbitrary.
1661-B-FJ
1.2. The classification between testators who belong to Christian
community and those belonging to other religions is extremely unreasonable.
H All the testators who bequeath property for religious and charitable purpose
.JOHN VALLAMATTOM v. U.O.I.
645
belong to the same category irrespective of their religious identity and so the A
impugned provision, which discriminates between the members of one
commun~ty as against another, amounts to violation of Article 14 of the
Constitution. There is no rationale behind limiting the survival of testator to
a period of 12 months in order to give effect to his wishes. There is no rationale
in the classification between a testator who survives beyond 12 months and a B
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. There is no logic behind
fixing 12 months' period, and the testators who constitute a homogenous class
cannot be decided arbitrarily on the basis of the duration of their survival
which is unrelated to the purpose of executing a will. Since fixation of such
a period has no nexus with the object of performing a philanthropic act, the C
impugned provision is liable to be declared void as violative of Article 14 of
the Constitution. (661-H; 662-A-q
1.3. The first part of Article 14 of the Constitution of India is a
declaration of equality of civil rights for all purposes within the territory of
India and basic principles of republicanism and there will be no D
discrimination. The guarantee of equal protection embraces the entire realm
of 'State action'. It would extend not only when an individual is discriminated
against in the matter of exercise of his right or in the matter of imposing
liabilities upon him, but also in the matter of granting privileges etc. In all
these cases, the principle is the same, namely, that there should be no
discrimination between one person and another if as regards the subject- E
matter of the legislation their position is the same. All persons of similar
circumstances shall be treated alike both in privileges and liabilities imposed.
The classification should not be arbitrary; it should be reasonable and i.'. must
be based on qualities and characteristics and not any other who are left out,
and those qualities or characteristics must have reasonable relation to the F
object of the legislation. [662-D-F]
D.S. Nakara v. Union of India, [1983[ I SCC 305, relied on.
1.4. The contribution for religious and charitable purposes is a
philanthropic act intended to serve humanity at large and is also recognized
as a religious obligation. Therefore, bequeathing property for religious and G
charitable purposes cannot be controlled or restricted by the Legislature as
it would offend the fundamental rights of the testator under Articles 25 and
26 of the Constitution. Hence, the impugned provision is arbitrary and
unconstitutional. It is also violative of Article 26 of the Constitution inasmuch
as it is an essential and integral part of Christian religious faith to give H
646
SUPREME COURT REPORTS [2003) SUPP. I S.C.R.
A property for religious and charitable purposes. Every Christian shall have
the right to establish and maintain institutions for religious and charitable
purposes, manage its own affairs, own and acquire movable and immovable
properties and to administer such property in accordance with law. 1663-D-EI
1.5. There cannot be any unusual burden on Christian testators alone
B when all other testators making similar bequests for similar charities and
similar religious purposes are not subjected to such procedure. Therefore,
Section 118 of the Act is anomalous, discriminatory and violative of Articles
14, 15, 25 and 26 of the Constitution and should be struck down. 1663-G I
1.6. A substantive restriction is imposed based on uncertain events over
C which the testator has no control. Thus, Section 118 of the Act regarding
religious and charitable bequests of all testators who are similar should be
subjected to the same procedure. It is pertinent to notice that the judgment of
the Kerala High Court was not appealed against by the Union of India, in the
case of Preman v. Union of India*. However, even then the Parliament did. not
D remove the discrimination. Under such circumstances, this Court, in exercise
of its jurisdiction and to remedy violation of fundamental rights, is bound to
declare the impugned provision as invalid and being violative of Articles 14,
15, 25 and 26 of the Constitution. Hence Section 118 of the Act is
unconstitutional and is liable to be struck down as unconstitutional.
(664-E; 665-C-DI
E
*Preman v. Union of India, (1998) 2KLT1004, approved.
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 242of1997.
(Under Article 32 of the Constitution of India).
F
Romy Chacko and Ms. V. Mohana for the Petitioners
P.P. Malhotra, Ms. Anjani Aiyagari, S.N. Terdol and B.K. Prasad for the
Respondent.
The Judgment of the Court was delivered by
G
V.N. KHARE, CJ. 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').
Petitioner No. 1 is an Indian citizen and is a Christian Priest belonging
H to the religious denomination of Roman Catholics. The second petitioner is
JOHN VALLAMATTOM v. U.0.1. lV.N. KHARE, Cl]
647
also a member of the Christian community. The petitioners are aggrieved by A
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.
The history of Section 118 of the Act can be traced to an ancient B
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 C
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 D
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 bo~nefit 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 E
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 , period
of twelve months before two witnesses and enrolled in Chancery within six F
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.
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 a(;res
G
for a public park or two acres for a museum, etc. In this respect it is relevant H
648
SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A 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 vario•.1s charitable
uses as provided in the Mortmain and Charitable Uses Act, 1888. The
consequence is that as per the impugned provision the testamentary disposition
B 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.
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
C provided hereunder:
"No right or title to any property shall be defeated or impugned and
no assurance or disposition of property shall be treated as void or
voidable, by virtue of any of the enactment relating to mortmain on
29th July, 1960 the possession was in accordance with that right or
D
title or with assurance or disposition and no step has been taken to
assert a claim by virtue of any such enactment."
The Indian Succession Act, 1925 was enacted in the year 1925, by
reason whereof, the Indian Succession Act, 1865 was repealed. Section 3 of
the Act confers power on the State Government to exempt any race, sect or
E tribe residing therein from the purview of Sections 5 to 49, 58 to 191 and
212. Testamentary succession has been dealt with in Part VI of the Act.
Section 58 provides that the provisions of Part VI would not apply to the
testamentary succession to the property of any Mohammedan, Hindu, Buddhist,
Sikh or Jain. Section 59 provides that every person of sound mind not being
F a minor may dispose of his property by Will. Chapter VII of the Act deals
with void bequests.
G
H
Section i 18 is contained in the said chapter which reads as follows :
"Sec. 118. Bequest to religious or charitable uses - No man having a
nephew or niece or any nearer relative shall have power to bequeath
any property to religious or charitable uses, except by a will executed
not less than twelve months before his death, and deposited within
six months from its execution in some place provided by law for the
safe custody of the will of living persons."
The said provision, thus, postulates that a person having a nephew or
JOHN VALLAMA TTOM v. U.0.1. [V.N. KHARE, CJ.]
649
niece or any nearer relative cannot bequeath his property for religious or A
charitable use unless : (i) the will is executed not less than twelve months
before the death of testator; (ii) it is deposited within six months from its
execution in some place provided by law for the safe custody thereof; and
(iii) it remains in such deposit till the death of.the testator.
The section plainly means that to the extent to which the bequest is for B
religious or charitable uses, the application of this section is attracted despite
the fact that the bequest may be for only a part o..- the property or some
interest in the property.
The question as to who are the near relations for the purpose of Section
118 is to be determined according to the Table of Consanguinity, as per C
Section 28 read with Schedule 1 of the Act. The term 'any nearer relative'
includes father, mother, son, daughter, grandfather, grandmother, grandson,
granddaughter, brother or sister. The word 'relative' means legitimate relative
and has no application to any relationship by marriage. It includes adopted
son also. So a Christian testator having a nephew or niece or nearer relatives D
must execute the Will at least 12 months before his death, and deposit it
within six months, otherwise the bequest for religious or charitable use would
be void.
It is urged that having regard to the fact that the impugned provision
owes its origin to the statute of Mortmain which is repealed in England E
cannot be any reasonable justification for retaining the same in the Indian
statute books particularly in view of the fact that upon coming into force the
Constitution of India, the pre-constitution statute could remain valid only if
the same conforms to the provisions contained in Part III thereof.
Further according to the petitioners the said provision is violative of F
Articles 14 and 15 of the Constitution of India inasmuch as it :
(a) discriminates against a Christian vis-a-vis non-Christians;
(b) discriminates against testamentary disposition by a Christian visa-vis non-testamentary disposition;
(c) discriminates against religious and charitable use of property visa-vis all other uses including not so desirable purposes;
(d) discriminates against a Christian who has a nephew, niece or
nearest relative vis-a-vis Christian who has no relative at all; and
G
H
650
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A
(e) discriminates against a Christian who dies within twelve months
of execution of the Will of which he has no control.
It was submitted that a citizen of India is also entitled to live with basic
human dignity and, thus, has a right to effectuate his wishes according to his
own discretion by having a freedom to choose his legatee under the Will as
B well as the purpose of bequest.
c
It was also submitted that the said provision is violative of Article I of
the Vienna Declaration on the Right to Development adopted by the World
Conference on Human Rights of 1993 and Article 18 of the United Nations
Covenant on Civil and Political Rights 1966.
The petitioners have further raised a plea that it is an essential and
integral part of Christian Religious Faith to contribute for religious and
charitable purpose as has been prescribed in the Canon Law of the Code of
Canons of the Eastern Churches and the teachings of the Holy Bible, the
D impugned provision violates Articles 25 and 26 of the Constitution of India.
The contention of the respondent, however, is that the Indian Succession
Act, 1925 being a pre-constitution enactment having regard to Article 372 of
the Constitution of India, continues to be in force within the territory of
India. The respondent would not deny or dispute the legislative history of the
E said provision but contends that the Indian Parliament is not bound by any
legislative changes or development in this behalf in England or any other
foreign country. Further, contention of the respondent appears to be that the
Indian Christians form a separate and distinct class and in that view of the
matter they cannot be treated on equal footing to Muslims or Hindus in the
matter of bequeathing property for religious or charitable purposes. The
F respondent contends that marriage, succession and like matters of secular
character cannot be brought within the guarantee enshrined under Articles
25, 26 and 27 of the Constitution of India.
Before proceeding further I may notice that a Division Bench of the
Kerala High Court in Preman v. Union of India, (1998) 2 KL T I 004 held the
G said provision to be unconstitutional. A special leave petition filed there
against by a private party was, however, dismissed by a Bench of which I
myself as I then was, a party stating :-
H
"Permission to file SLP is granted.
Delay condoned.
.JOHN VALLAMATTOM v. U.O L (V.N. KHARE, CJ.]
651
We find that the Special Leave Petitions are at premature stage. A
Whatever grievance the petitioner may have, may be agitated in the
hierarchy of proceedings in petitioner's appeal. The Special Leave
Petitions are dismissed."
it is neither in doubt nor in dispute that clause 1 of Article 13 of the
Constitution of India in no uncertain terms states that all laws in force in the B
territory of India immediately before the commencement of the Constitution,
in so far as they are inconsistent with the provisio•-> o~ ?art Ill there, shall,
to the extent of such inconsistency, be void. Keeping in view the fact that
the Act is a pre-constitution enactment, the question as regards its
constitutionality will, therefore, have to be judged as being law in force at the C
commencement of the Constitution of India [See Keshavan Madhava Menon
v. The State of Bombay, (1951] SCR 228. By reason of clause 1 of Article 13
of the Constitution of India, in the event, it be held that the provision is
unconstitutional the same having regard to the prospective nature would be
void only with effect from the commencement of the Constitution. Article
372 of the Constitution of India per force does not make a pre-constitution D
statutory provision to be constitutional. It merely makes a provision for the
applicability and enforceability of pre-constitution laws subject of course to
the provisions of the Constitution and until they are altered, repealed or
amended by a competent legislature or other competent authorities.
The equality clause enshrined in Article 14 of the Constitution of India E
is of wide import. It guarantees equality before the law or the equal protection
of the laws within the territory of India. The restriction imposed by reason
of a statute, however, can be upheld in the event it be held that the person
to whom the same applies, forms a separate and distinct class and such
classification is a reasonable one based on intelligible differentia having nexus F
with the object sought to be achieved.
The underlying principle contained in Section 118 of the Act indisputably
was to prevent persons from making ill-considered death-bed bequest under
religious influence. It is beyond any cavil of doubt that the restrictions
imposed thereby have a great impact on a person who desires to dispose of G
his property in a particular manner which would take effect upon or after his
death.
The concept of ownership of a person over a property or a right
although is a varying one includes right to dispose of his property by Will.
H
652
SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A
The Indian Succession Act confers such a right upon all persons
irrespective of caste, creed or religion he belongs to. Section 59 of the Act
provides that every person of sound mind and who is not a minor is entitled
to dispose of his property by Will. Thus all persons who have sufficient
discretion and free will are capable of disposing of their property by Will.
B Section 51 provides that a Will, the making of which is caused by fraud or
coercion or by such opportunity which takes away the free agency of the
testator is void. Section 63 deals with execution of unprivileged Wills providing
that the Will shall be signed by the testator and it shall be attested by two or
more witnesses each of whom should have seen the testator sign or affix his
mark to the Will.
c
D
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
E 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
p 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.
G 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 ofreligion, 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
H transfers to which it refers are the same as those described in Section 92 of
JOHN VALLA MA TTOM v. U.0.1. [V.N. KHARE. Cl]
653
the Code of Civil Procedure, 1908, as trusts created for a public purposes of A
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 B
is really strange as to how a statute may pennit 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 C
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 D
matter, such a provision is unreasonable and arbitrary.
The matter may be examined from another angle. Assuming that the
purpose of Section 118 of the Act is to prevent bequest of property under
religious influence, there is no justification in restricting testamentary
disposition of property for charitable purpose. Charitable purpose includes E
relief to poor, education, medical relief, advancement of objects of public
utility, etc.