JOHN VALLAMATTOM Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition under Art. 32 of the Constitution of India we are concerned with the constitutionality of the provisions of S. 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 S. 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that gift by Will after 24th June, 1736 of land for charitable purposes were void as a general rule. 1735 Act was repealed by Mortmain and Charitable Uses Act, 1888.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, device, 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 authorised 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.