- (1.) The issue before the Court in this Civil Appeal against the judgment of the Bombay High Court is rather short, to wit, whether the avowed object with which Sir Adamji Peerbhoy the great Philanthropist founded the trust for Dawoodi Bohra Community in 1883 A.D. needs a change of object under Cy pres doctrine having regard to constitutional parameters so as to make the Trust truly secular in nature since the situation of the early 19th century may not suit the purpose in the 21st century. The respondent Trust contended that the preamble to the Constitution itself declares India to be secular and as such what was possible in 1883 may not be proper and in line with lofty ideas of our Constitution since the constitutional mandate is to be obeyed in its observance rather than in its breach and it is this concept which is said to have prompted the Trustees of Sir Adamji Peerbhoy Sanatorium Trust to move the City Civil Court for variation and amendment to the scheme of the Trust as sanctioned by the Court in 1931.
(2.) Incidentally, be it noted that the expression, Cy pres in common English acceptation means and implies 'as near as possible' (to testators' or donors' intentions when these cannot be precisely followed).
(3.) In Halsbury's Laws of England (4th Ed. Vol. 5B) 'cy pres' doctrine has been referred to as below: "The cy pres doctrine: Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode cy pres that is as near as possible to the mode specified by the donor. An application cy-pres resuits from the exercise of the Court's ordinary jurisdiction to administer a charitable trust of which the particular mode of application has not been defined by the donor. Where he has in fact prescribed a particular mode of application and that mode is incapable of being performed, but he had a charitable intention which transcended the particular mode of application prescribed the Court in the exercise of this jurisdiction can carry out the charitable intention as though the partiular direction had not been expressed at all. The primary rule to be observed in the application of the cy-pres doctrine is that the donor's intention must be observed as far as possible. Thus, if the donor names a particular object which is capable of taking effect, any application cy-pres that becomes necessary must be restricted within the limits of that object, and the mode of application must as far as possible coincide with his wishes. A charity may by cy pres to the original object even though it seems to have no trace of resemblance to it, if no other can be found which has a nearer connection, but objects nearer the donor's intention will always be selected in preference to those more remote.";