1. Sir Patrick Spens, C.J.— The events which led to the enactment by the Madras Provincial Legislature of the Madras Temple Entry Authorisation and Indemnity Act, 1939 (Madras Act No. XXII of 1939), the validity of which is called in question in this appeal, took place on the 8th July, 1939. On that date, certain members of the excluded classes, including respondents 2 to 6, led by the Advocate-President and Secretary of the local Harijana Seva Sanga (respondents 7 and 8) entered and offered worship from the Ardhamantapam in the temple of Sri Minakshi Sundareswaral Devastanam at Madura in the Province of Madras. Their entry and worship was not obstructed by the first respondent, the Executive Officer and Trustee of the temple. Their worship was aided by the ninth respondent, a temple Bhattar. These actions of the respondents caused grave offence to many other Hindus, including the appellants, as amounting to a most serious defilement of the temple. Immediate protests were made, followed by an action started by the appellants and others in the Court of the Subordinate Judge of Madura (O.S. No. 48 of 1939) by a plaint dated the 13th July, 1939. The reliefs claimed in the action were that the first respondent should be directed to cause the requisite purification and ritual ceremonies to be duly performed, that the respondents should pay the expenses of such ceremonies, and that various injunctions should be granted against the respondents to prevent any repetition of such events as had taken place on the 8th July, 1939.

2. On the 11th September, 1939, the Madras Temple Entry Authorisation and Indemnity Act, 1939 (hereinafter referred to as “the Act”), having been assented to by the Governor-General on the 4th September, 1939, was first published in the Fort St. George Gazette and thereupon prima facie became law. On the 18th September, 1939, one of the respondents took objection in the said action that by virtue of the Act the action was no longer maintainable. Accordingly, on the 26th September, 1939, the Subordinate Judge settled that the question whether the suit was barred by the Act should be tried as a preliminary issue. On the trial of the issue, the validity of the Act was challenged, on the ground that it went beyond the legislative powers conferred on the Legislature of Madras by the Government of India Act, 1935. On the 3rd April, 1940, the Subordinate Judge held that the Act was validly enacted and that it operated to bar the main claims in the action. He went on, however, to hold that it might have to be decided in the action, from what places within the temple the various sections of the Hindu community could properly worship, and he accordingly directed that the respondents should file written statements setting out their case on those matters. After written statements had been filed and various interlocutory applications had been made and disposed of, the suit was finally heard in the Court of the Subordinate Judge of Madura in January, 1942. By that time Mr. R. Rajagopala Ayyar had succeeded as Principal Subordinate Judge, and on the 26th January, 1942, he dismissed the action in its entirety, accepting his predecessor's decision as to the validity of the Act but taking the view that on the plaint no question was raised for determination by the Court as to the places within the temple from which different sections of the Hindu community could properly worship. From this decision the appellants appealed to the District Judge, Madura. On the 26th June, 1943, the District Judge dismissed the appeal. The appellants then appealed to the High Court of Madras. The appeal was heard on the 7th and 8th December, 1944, by Leach, C.J., and Shahab-ud-din, J., and judgment was delivered on the 15th December, 1944, dismissing the appeal.^* The learned Judges held that by virtue of Entry No. 34 in List II (The Provincial Legislative List) or Entry No. 9 in List III (The Concurrent Legislative List) in the Seventh Schedule to the Government of India Act, 1935, the Madras Provincial Legislature had power to enact the Act in question and that arguments to the contrary on behalf of the appellants, including an argument based on S. 298 of the Constitution Act, were ill-founded. The learned judges also agreed with the decisions of the Courts below that no question was raised by the plaint for a decision by the Court as to places within the temple which the various communities should use for the purpose of worship. Having regard to the question raised as to the validity of the Act, the learned Judges granted a certificate under S. 205 of the Government of India Act, 1935. By petition dated the 13th March, 1945, the appellants appealed to this Court from the said decision of the Madras High Court.

3. In this appeal we have had the benefit of very full and learned arguments from Counsel for the appellants and the respondents and from the Advocate-General of Madras as intervener, in which the arguments advanced in the High Court have again been put forward and elaborated. We do not, however, propose to deal with all the arguments at length. In our judgment the matter can best be concluded and the case decided on the construction of Entry No. 34 of List II in the Seventh Schedule to the Government of India Act, 1935. That entry is in these words:—

4. “34 Charities and charitable institutions; charitable and religious endowments.”

5. Summarising the main arguments on the construction of this entry put forward on behalf of the appellants, it was submitted by Counsel for the appellants that having regard to the introduction in the latter part of the entry of the distinction between charitable and religious endowments, only a narrow meaning, excluding religious charities and religious institutions, could be given to the words “charities” and “charitable” in the earlier part of the entry. In this connection Counsel for the appellants also pressed the principle referred to in Maxwell on the Interpretation of Statutes (8th Ed.), page 283, that when two words or expressions are coupled together, one of which generally includes the other, it is obvious that the more general term is used in a meaning excluding the specific one. Counsel further urged that from the express reference to “religious endowments” in entry No. 34, following on the express reference in entry No. 33 to “religious” societies and associations amongst the unincorporated societies and associations therein referred to, it must be presumed that when Parliament intended in List II to give to Provincial Legislatures exclusive legislative powers in respect of religious matters, it did so by express use of the word “religious.” These arguments were reinforced by the submission that the narrow construction of the words “charities” and “charitable institutions” in entry No. 34 was in accordance with a long course of legislative practice in British India, by which in enactments an express distinction had often been drawn between religious and other charitable trusts, purposes, endowments and so forth. Reference was made to the Religious Endowments Act (Act No. XX) of 1863; the Charitable Endowments Act (Act No. VI) of 1890, particularly the definition of “charitable purpose” in S. 2; S. 539 of the Code of Civil Procedure of 1877 (“trust created for public, charitable purposes”); S. 539 of the Code of Civil Procedure of 1882 (“trust created for public, charitable and religious purposes”); S. 92 of the Code of Civil Procedure of 1908 (“trust created for public purposes of a charitable or religious nature”); the Religious Societies Act (Act No. I) of 1880; the amendment to S. 10 of the Indian Limitation Act (Act No. IX) of 1908 made by S. 2 of the Indian Limitation (Amendment) Act (Act No. I) of 1929; S. 48 of the Administrator-General's Act (Act No. III) of 1913 “religious, charitable and other objects”); the Charitable and Religious Trusts Act (Act No. XIV) of 1920; S. 4(3)(i) of the Indian Income-Tax Act (Act No. XI) of 1922; Ss. 2(a) and (3)(f) of the Mussalman Wakf Act (Act No. XLII) of 1923; S. 118 of the Indian Succession Act (Act No. XXXIX) of 1925; and the Madras Hindu Religious Endowments Act (Act No. II) of 1927. It was further argued that an intention to impose a limitation on the right of Provinces to legislate in respect of religious institutions and matters, other than religious endowments or religious societies and associations, might properly be ascribed to Parliament when it passed the Act of 1935, having regard to the fact that the only subjects of this nature included by the Devolution Rules in the list of Provincial subjects prior to 1935 were “Religious and Charitable Endowments” (entry No. 23).

6. Dealing at once with the last point, we feel that very little assistance can be derived from a consideration of the legislative powers of the Provincial Governments prior to the Government of India Act, 1935. The whole scheme of legislative powers was entirely different under the previous Government of India Act. The basic conception underlying the previous Government of India Act was that of a unitary state. The Devolution Rules were only made “for the purpose of distinguishing the functions of local governments and local legislatures from the functions of the Governor-General in Council and the Indian legislature” (S. 45-A). The legislative power of the local legislature of any Province was based on the wide and historic power to make laws for the peace and good government of the territories for the time being constituting that Province [S. 80-A(1)]. The proviso to S. 80-A preserved the validity by subsequent assent of the Governor-General of any enactment of a local legislature which should not have been enacted without the previous sanction of the Governor-General and S. 84(2) prevented the validity of any local Act being impugned in a Court of law on the ground that the Act affected a Central subject. The scheme of the Government of India Act, 1935, is utterly dissimilar with its structure for a federal state and its strict provisions for exclusive legislative powers in the Central Legislature on some subjects, exclusive legislative powers in the Provincial Legislatures on other subjects, and concurrent legislative powers of both Central and Provincial Legislatures on others. It may well be that the fact that entry No. 23 did appear in the list of Provincial subjects in the Devolution Rules may explain why it was thought advisable to add to the words “charities and charitable institutions” in Entry No. 34 in List II in the Seventh Schedule to the Government of India Act, 1935, the same words, viz., “religious and charitable endowments” that had appeared in Entry No. 23. Omission of them might have raised a doubt as to the power of Provincial Legislatures to legislate in respect of religious and charitable endowments. Beyond that, it seems to us impossible to deduce anything with any certainty from the scheme of the previous Government of India Act. We prefer to address ourselves to the task of construing Entry No. 34 as we find it in the Government of India Act, 1935, having particular regard to its context in and the other provisions of that Act.

7. It is true that the general principle referred to earlier in this judgment and taken from Maxwell on the Interpretation of Statutes may often properly be applied. But all such general principles of construction must yield to definite indications in the context that the portions of an enactment to be construed have not been drafted on the basis of any such principle. In our opinion it is only necessary to consider in detail a number of entries in the Lists in the Seventh Schedule to come to the conclusion that so far from the principle referred to having been kept in view throughout the drafting of these Lists, a very different principle has in fact been adopted in a large number of cases. In such last mentioned cases, it seems to us that the entries start with the use of some term or phrase of very general and far-reaching conception, and that then such term or phrase is followed by a number of words or phrases with meanings which might well be included in the meaning of the opening term or phrase, if that had been left to stand alone, or with meanings indicating a somewhat different approach to the subject of legislation intended to be included in the opening term or phrase. Such additional words and phrases are added for the purpose of removing doubts as to the wide scope of the meaning of the opening term or phrase. The subsequent words and phrases are not intended to limit the ambit of the opening general term or phrase but rather to illustrate the scope and objects of the legislation envisaged as comprised in the opening term or phrase. In List I, Entries Nos. 3, 7, 20 and 33; in List II, Entries Nos. 4, 13, 18, 19, 20, 21 and 27; in List III, Entries Nos. 10, 18 and 27, may all be referred to as instances of entries where the meaning of the opening general term or phrase is not intended to be cut down by anything that follows, unless expressly so provided, as for instance by the last words of Entry No. 10 of List III. In some instances, that this is the proper principle of construction of entries in the Lists is made clear by the opening term or phrase being followed by the expression “that is to say” or the use of the word “including.” But these additional helps to construction are by no means always used in entries of this description. Cf. Entry No. 27 in List III.

8. Entry No. 34 of List II opens with the term “charities” a term of very wide legal significance in the law of England, Ireland, Scotland and British India. A power to legislate in respect of “charities” would in our judgment always clearly include power to legislate in respect of “charitable institutions” and “charitable endowments.” Nothing can be added to the scope or ambit of the power to legislate in respect of “charities” by the addition of the words “charitable institutions” and “charitable endowments.” On the other hand, if these additional phrases were to be construed as conferring powers of legislation separate and distinct from the power to legislate in respect of charities, it would indeed be difficult to delimit what would be within the scope of the limited power to legislate in respect of charities in this narrow sense. In our judgment the additional phrases “charitable institutions” and “charitable endowments” in Entry No. 34 are only illustrative of the directions, which the power, the really enabling power, to legislate in respect of charities may, amongst others, take. Is there any reason why the same effect should not be given to the phrase “religious endowments” also Why it should not merely be another illustration of the direction in which the general power of legislating in respect of charities may be exercised

9. We appreciate the argument based on the legislative practice relied upon by the appellants that for many years, at any rate from 1863 onwards, many enactments have been so drawn as to indicate expressly when religious as well as, or as opposed to, secular charitable trusts, purposes, trustees, institutions, or societies are or are not made the subject or object of the legislation in question. This has generally been done, for some very specific reason, as for instance for the purpose of securing that religious trusts, trustees, endowments or institutions shall be treated separately and differently from secular trusts, trustees, endowments and institutions as in the Religious Endowments Act of 1863, or to ensure that they shall all be treated in the same way, in cases where doubts have been or might be cast on the scope of the legislation as in S. 539 of the Code of Civil Procedure of 1882. But the very fact that the distinction has been expressly so often made in legislative enactments indicates that fundamentally the scope and meaning of the terms “charity” and “charities” may be at least as comprehensive in British Indian law of religious charities and institutions, or charities and institutions for religious purposes, as it is in English Law. The express inclusion of “religious endowments” in entry No. 34 will in this view be an indication that “charities” is here used in its most comprehensive sense. The position appears to us conveniently set out in para 782 of Mayne on Hindu Law and Usage (10th Ed.) at pages 913 and 914:

10. “According to English law, ‘charitable trusts’ in the legal sense comprise 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. All charities to be administered by the Court must fall within one or other of these divisions but not every object which falls within those divisions is charitable unless it is of a public nature, intended to benefit the community or some part of it and not merely private individuals or a class of private individuals. The Courts in India have, in relation to Hindu wills and gifts, adopted the technical meaning of charitable trusts and charitable purposes which the Courts in England have placed upon the term ‘charity’ in the statute of Elizabeth. All purposes which are charitable according to English law will be charitable under Hindu Law. But, in addition, under the head of advancement of religion, there are other charitable objects in Hindu law which will not be charitable according to English law; for that law forbids bequests for superstitious uses, a restriction which does not apply to grants of this character in India, even in the Presidendy towns, and such grants have been repeatedly enforced by the Privy Council. What are religious purposes and what religious purposes will be charitable must of course be entirely decided according to Hindu law and Hindu notions.”

In our judgment therefore the word “charities” is an appropriate generic term of wide scope and meaning apt to include all public, secular, charitable and religious trusts and institutions recognised as such by British Indian Law, and a power to legislate in respect of “charities” will include a power to legislate in respect of all matters connected with religious charities and institutions. For the reasons indicated earlier the reference to “religious” endowments will not therefore in this context cut down the wide scope of the power of legislation conferred by the opening word of the entry any more than the addition of the words charitable institutions and charitable endowments.

11. Moreover, if the appellants' arguments were sound that the only powers to be found in the Constitution Act of 1935 to legislate in respect of religious institutions are limited to legislation in respect of religious associations and societies in Entry No. 33 of List II, and religious endowments in Entry No. 34 of the same List, and that Entry No. 9 in List III is not applicable to legislation in respect of religious institutions, then both Central and Provincial Legislatures are without any general powers of legislation in respect of religious institutions, religious trusts and other religious matters. Any legislation in respect of such omitted subjects would have to be authorised by S. 104 of the Government of India Act, 1935, or made the subject of an amending Act of Parliament. We find it difficult to believe that such could have been the intention of Parliament, particularly when the references to religious societies and associations in Entry No. 33 and to religious endowments in Entry No. 34 show that legislation in respect of religious matters must have been considered. We cannot believe that such a far-reaching curtailment of legislative powers would have been made in a sphere of legislation of such importance to British India by mere silent omission. Rather we should have expected, if such had been the intention of Parliament, to have found some express prohibition or curtailment of legislation on these subjects, such as is to be found in S. 108 of the Act. We should moreover in any event prefer a construction which would enable legislation on a subject of such vital importance in India to be enacted by some legislative body rather than leave it to be dealt with under S. 104. The presence in the Government of India Act, 1935, of S. 104 makes it impossible to apply directly to the provisions of that Act principles which have been applied in the construction of the British North America Act, as in the British Coal Corporation v. The King, a case pressed upon us by Counsel for the respondents. In the Canadian Constitution Act, there is no provision in respect of omitted subjects of legislation. Every subject must be held to be either within the legislative powers of the Dominion Parliament or of the Provincial Legislatures. In the Indian Constitution Act, S. 104 has been inserted for the very purpose of enabling legislation to be enacted in respect of subjects omitted from the three Lists in the Seventh Schedule. There is not therefore the same necessity for Courts in India to find that a subject must be comprised within the entries in the Lists. But when there is a choice between two possible constructions of an entry or entries, one of which will result in legislative power being conferred by some entry or entries in the Lists and the other in a finding of no existing power, but if legislation is required that recourse must be had to S. 104, the first construction should on principles analogous to those applied to the Canadian Constitution be preferred. A fortiori such a construction should be preferred where it can be deduced from some entry or entries in the Lists or some provision elsewhere in the Act that at the time of the compilation of these Lists and the enactment of the Act the subject of legislation was considered and no express prohibition or curtailment of power of legislation on the subject is to be found in the Act. Lastly, such a construction should be preferred where there is actual legislation on the subject, in which case the Court will incline to a construction which will give validity to such legislation. On this point we would refer to and adopt the opinion of the majority of the Judges in this Court in the passage at page 330, In re Levy of Estate Duty .

12. In our judgment therefore the Madras Provincial Legislature had power by virtue of Entry No. 34 in List II to legislate in respect of religious institutions within the Province of Madras in the manner in which it purported to legislate by the Act in question in this case. It was argued that the fact that the legislation would affect rights claimed by Hindus domiciled outside the province of Madras would also make the Act ultra vires. There is nothing in this point. Any rights affected are rights in respect of the temple at Madura which can only be exercised within the boundaries of the Province of Madras.

13. It was also argued that S. 298 of the Constitution Act prohibited any such legislation as that contained in the provisions of the Act in question. Even if we were prepared to agree with Counsel for the appellants that any rights of his clients which have been affected by the legislation in question were “property” within the meaning of that word in the section—to which we certainly are not prepared to commit ourselves—it is impossible to make good the argument that the section applies. It is clear that the challenged legislation does not amount to a prohibition of the holding by his clients of such property on grounds only of religion. If Sub-S. (1) does not apply, Sub-S. (2) cannot apply. The suggestion that Sub-S. (2), though framed as a proviso to Sub-S. (1), amounted to a separate and general protection in all circumstances of all existing rights attached to members of a community by virtue of some personal law or customs having the force of law is ill-founded.

14. In our judgment therefore the Madras Temple Entry Authorization and Indemnity Act, 1939, was validly enacted by the Madras Provincial Legislature, having regard to the powers of legislation conferred on Provincial Legislatures by the Government of India Act, 1935, and in particular by Entry No. 34 of List II in the Seventh Schedule.

15. It accordingly becomes unnecessary to express our views on the question whether the legislation could also have been justified under Entry No. 9 of List III.

16. The appeal fails and must be dismissed. The appellants must pay to the respondents their costs of this appeal to be taxed.