The India Trusts Act, 1882 is the law followed for private trusts in India.

A trust
allows the trustee to hold assets on behalf of the beneficiary. The parties in a
trusteeship are; Author of trust/trustor (one who creates the trust); the trustee (one
who holds the trust with confidence of author) and; the beneficiary (third party
who benefits from the trust). A trust can be created by a person who is competent
to contract, in an explicit or implicit manner. The author must communicate the
purpose, beneficiary, and property of the trust when showing intention of entering
into a trusteeship agreement. The trustee is responsible for preserving the
trusteeship property, and may get reimbursement from the property if they pay
from their own pocket to protect it. If the trustee breaches the trust, they are liable
to compensate the damage to the beneficiary.

INTRODUCTION

The India Trusts Act, 1882, is the law that governs private trusts and trustees in
India. The Act addresses the creation of a trust, types of trust, parties to a trust, and
the dissolution of trusts. A trust, as provided under Section 3 of the Act is defined
as “an obligation annexed to the ownership of property, and arising out of a
confidence reposed in and accepted by the owner, or declared and accepted by him,
for the benefit of another, or of another and the owner”. Simply understood, a trust
is created when one party (the (trustor) places their ‘trust’ or confidence in another
party (trustee), for the benefit of a third party (beneficiary). It allows the trustee to
hold assets on behalf of the beneficiary. One of the primary benefits of establishing
a trust is that it allows the trustorto manage his property with the help of another
person for the benefit of a third party. It is easier to obtain legal consent,
certificates or authorization in a trust, distinguishing them from ‘wills’. This makes
the management of property easier. Moreover, trusts are often used for charitable
purposes.

THE PARTIES IN A TRUST Trustor/ Author of the trust: This is the entity that
creates the trust. They declare their confidence in the trustee. Trustee: The person
appointed to control the administration of the asset, until it is transferred to the
beneficiary. A trustee should be a person who is competent to contract under the
Indian Contract Act 1872. This means they should have attained the age of
majority, should not be of unsound mind, or should not have been disqualified
from contracting by any law. Trusteeship is voluntary and a potential trustee can
choose to reject it, but if the trusteeship is accepted, then all rights, duties, and
liabilities of a trustee are entrusted to the trustee. Beneficiary- This is the party for
whose benefit the trust is created. They will benefit from the trust in the future.
They have the right to profits and rents obtained from the trusted property. They
may also compel the trustee to do or not do something to prevent the breach of
trust. The beneficiary can be anyone capable of holding property (Section 9).

RIGHTS AND LIABILITIES OF THE TRUSTEE

Rights: The trustee is entitled to the title of the trust deed and other related
documents. (Section 31) The trustee may reimburse themselves from the trust
property for all expenses incurred while preserving the property, or protecting the
beneficiary. (Section 32) If a person other than the trustee breaches the trust from
which they gain a benefit, the trustee has the right to get indemnified for the loss.
(Section 33) At the end of the trusteeship, they may examine and settle the
accounts related to the trust property. (Section 35) They also enjoy some authority
over the property to maintain and protect the property. (Section 36) In some cases,
the trustee may have the power to sell the trust property in parts or whole, via an
auction. (Section 37-38)

Liabilities: The liabilities of the trustee are given in Sections 23-30 of the Act. If
the trustee is involved in a breach of trust, they are liable for paying the damage
they caused to the property. If the breach causes a loss, it will be borne by the
trustee, if it causes some unfair benefit or profit to the trustee, the profit will be
transferred to the beneficiary. Generally, a trustee is not liable for breach of trust
by a co-trustee, but Section 26 prescribes the scenarios where the trustee may be
made liable.

ESSENTIALS TO CREATE A TRUST

The trust must be permitted by law. A ‘lawful trust’ is defined by Section 4 of the
Act which asserts that a trust must be “permitted by law; not against the provisions
of law; not fraudulent in nature; not regarded as immoral or against the public
policy; and, should not involve any kind of injury or harm to any person or
property of another”. It can be created by any person competent to contract.
Section 6 delineates the creation of a trust. It reads: “A trust is created when the
author of the trust indicates with reasonable certainty by any words or acts (a) an
intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the
beneficiary, and (d) the trust-property, and (unless the trust is declared by will or
the author of the trust is himself to be the trustee) transfers the trust-property to the
trustee.” This Section suggests that trusts can be implied, but in the communication
by the author must include the intention to create the trust, the purpose for which
the trust is created, who will benefit from it, and what property it will cover. A
further reading in the Act shows that the subject matter of the trust must
encompass property that can be transferred to the beneficiary, and must not be a
beneficial interest under an already subsisting trust. (Section 8)

EXTINCTION OF TRUSTS The process to put an end to trust is specified under

Sections 77 and 78 of the Act. Section 77 states a trust will be ‘extinguished’ or
dissolved when it fulfils its purpose; or the purpose for which the trust was created
becomes unlawful; or fulfilment of the purpose becomes impossible. The final way
to end the trust is by revocation which is given in Section 78.

CONCLUSION The India Trusts Act is the law governing private trusts in India. It
allows the trustor to give up their rights over a property and hand it over to the
trustee until the beneficiary is in a position to receive benefits. In 2015, the Indian
Trusts Amendment Bill (2015) removed some “archaic” provisions of the Act.
This amendment provided more autonomy to trustees and allowed them to invest
in securities notified by the Government by repealing Sections 20 and 20A of the
Act. This amendment removed restrictions on the investment of assets by the trust,
and at the same time, it enabled the Government to scrutinize the trusts'
investments at will.

(Section 4 to 10 – Creation of Trusts; 11 to 30 – Duties & Liabilities of a

Trustee ; Section 77 to 79 – Extinction of Trusts)

Classification of Trusts
Introduction.
Trusts are classified mainly based on:
(i)  number of beneficiaries (public or private), and
(ii) character under law (express or constructive).
 If the number of the beneficiaries of a trust are unascertainable, it will be public
trust; and if ascertainable, private trust.
Trust is created by a founder by dedicating property and by appointing trustee for
its administration. There must be a transfer of the property to the trustee. Trusts
covered by these express acts is called ‘express trusts’; and trusts resulted by
directives of law is called ‘constructive or implied trusts’.
Public Trusts and Private Trusts
The beneficiaries of the trust may be the general public or a limited number of
persons. Trusts for the former are public trusts and the latter, private trusts. Legal
incidents thereon are different. 
The Indian Trusts Act, 1882 is enacted primarily to govern private trusts; and
‘public or private charitable or religious endowments’ are expressly excluded
from its ambit. 
In Sec. 1, Indian Trusts Act, 1882, under the head, ‘Savings’, it is stated:
But nothing herein contained affects the rules of Mohammedan law as to waqf, or
the mutual relations of the members of an undivided family as determined by any
customary or personal law, or applies to public or private religious or charitable
endowments, or to trusts to distribute prizes taken in war among the captors; and
nothing in the Second Chapter of this Act applies to trusts created before the said
day.
Under Sec. 5, when a private trust is created upon an immovable property, it must
be registered under the Registration Act.
In Sec. 5 of the Indian Trusts Act, 1882 reads as under:
5. Trust of immovable property.—No trust in relation to immoveable property is
valid unless declared by a non-testamentary instrument in writing signed by the
author of the trust or the trustee and registered, or by the will of the author of the
trust or of the trustee.
On analysis, the crucial differentiating factor between public or private trust is the
‘purpose of trust’ envisioned by the author.
Dr. BK Mukherjea, J., ‘On the Hindu Law of Religious and Charitable Trusts’, has
set out the difficulty to make a distinction between public and private charitable
trust as under:
“The line of distinction between a public purpose and a purpose which is not
public is very thin and technical and is difficult of an easy definition.”
As to determination of the nature of a temple, whether public or private, it is held
in Deoki Nandan  Vs. Murlidhar,  as under:
“The distinction between a private and a public trust is that, whereas in the former,
the beneficiaries are specific individuals, in the latter, they are the general public or
a class thereof. While in the former the beneficiaries are persons who are
ascertained or capable of being ascertained, in the latter they constitute a body
which is incapable of ascertainment.”
Charitable Private Trust – Indian Law and English Law
Charitable trusts of public nature alone, and not of private nature, are accepted as
valid under English Law. English Jurists prefer to call it ‘charities’.  But, Indian
law admits private charitable and religious trusts also.
The distinction between English Law and Hindu Law has been stated by Dr.
Mukherjea in his Tagore Law Lectures ‘On the Hindu Law of Religious and
Charitable Trusts’ as under:
“In English Law charitable trusts are synonymous with public trusts and what is
called religious trust is only a form of charitable trust. The beneficiaries in a
charitable trust being the general public or a Section of the same and not a
determinate body of individuals, the remedies for enforcement of charitable trust
are somewhat different from those which can be availed of by beneficiaries in a
private trust. In English Law the Crown as ‘parens-patriae’ is the constitutional
protector of all property subject to charitable trusts, such trusts being essentially
matters of public concern. … One fundamental distinction between English and
Indian Law lies in the fact that there can be religious trust of a private character
under Hindu Law which is not possible in English Law.” 
‘Lewin on Trusts’ describes public trusts as those ‘constituted for the benefit either
of the public at large or of some considerable portion of it answering a particular
description’; ‘to this class belong all trusts for charitable purposes; and indeed
Public Trusts and Charitable Trusts may be considered in general as synonymous
expressions’. According to Lewin, ‘In private trusts, the beneficial interest is
vested absolutely in one or more individuals who are, or within a certain time may
be, definitely ascertained’.
Public Religious Trusts & Indian Trusts Act
The Indian Trusts Act, 1882 is enacted primarily to govern private trusts; but,
‘private charitable or religious endowments’ are expressly excluded from its
ambit. 
As shown above, in Sec. 1, under the head (Savings), it is stated that nothing
contained in the Act affects the rules of Mohammedan law as to waqf, or the
mutual relations of the members of an undivided family as determined by any
customary or personal law, or applies to public or private religious or charitable
endowments, or to trusts to distribute prizes taken in war among the captors; and
nothing in the Second Chapter of this Act applies to trusts created before the said
day.
Though the Indian Trusts Act does not apply, in terms, to the public trusts and
private charitable or religious trusts, the common legal principles, which cover
matters of these excluded trusts, especially the Sections that speak as to the Duties
and Liabilities of Trustees (Chapter III), Disabilities of Trustees (Chapter V), and
Chapter IX pertaining to implied trusts, apply to public trusts also. They ‘cannot
become untouchable’ merely because they find a place in the Trusts Act.
Our courts apply the general law of trusts, and the universal rules of equity and
good conscience upheld by the English judges in this subject, in appropriate
cases.So far as private religious trusts are concerned, there are no specific statutory
enactments to regulate their affairs. Such trusts are governed by the foundational
principles upon which they are established, as evidenced by documents, if
any;customs and usages;general law of contract and transfer of property, etc; apart
from the common law of the land applicable to such trusts.
Private Trust: Settlement of Scheme
Section 92 CPC will not apply to a private trust.  It does not necessarily mean that
the civil court has no jurisdiction to settle a scheme for the management of a
private trust. It is a civil right under Section 9 of the Civil Procedure Code and
governed entirely by the general law of the land which prescribes the remedies for
enforcement of civil rights. In Thenappa Chettiar  Vs.  Karuppan Chettiar the
Supreme Court held that even in the case of a private trust, a suit could be filed for
settlement of a scheme for the purpose of effectively carrying out the object of the
trust. If there is a breach of trust or mismanagement on the part of the trustee, a suit
can be brought in a Civil Court by any person interested for the removal of the
trustee and for the proper administration of the endowment.
If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of
debutter property or other neglect of duties, a suit can be instituted for remedying
these abuses of trust. A suit can also be filed for settlement of a scheme for the
purpose of effectively carrying out of the trust. 
Express Trusts and Constructive Trusts in the Trusts Act
According to the definitions of ‘trust’, there must be a deliberate intention on the
part of the author to create a trust. To accomplish a valid trust, the trustee should
have positively accepted the confidence reposed in by the author. The trustee must
have accepted the ‘obligations’ also.  The legal ownership of the trust property
must have been vested in the trustee. Transfer of ‘the trust-property to the trustee’,
for administration, is also a legal requirement of trust.  The trustee is bound to deal
with the trust-property in a fiduciary manner for the benefit of the beneficiaries. He
is bound to act with prudence and consciousness for attaining the objectives
intended by the author.
Underhill in Law of ‘Trusts and Trustees’ points out that no technical expressions
are necessary for the creation of an express trust. It is sufficient if the settlor
evinces with reasonable certainty: (a) an intent to create a trust; (b) the trust
property; (c) the persons intended to be beneficiaries; and (d) the purpose of the
trust so that the trust is administratively workable and not capricious. If all the
above factors are present, there will be an express trust.
The trust covered by this express declaration is referred to in Sections 4 to 79 of
the Indian Trust Act, 1882as (merely) ‘trusts’. English Courts call this branch of
trusts as ‘express trusts’. Sections 80 to 96, in Chapter IX of the Act state that the
persons specified in these sections are bound by the ‘obligations in the nature of
trust’ ‘for the benefit of another’. English Law classifies these trusts as
‘constructive or implied trusts’.
Precatory Trusts
Precatory trusts are created by expressions of wish or desire.  On true construction
they also amount to declarations of trust and include in express trusts. In such
cases, the Court has to find, as a matter of construction, that the settler had actually
expressed, indirectly, an intention to create a trust.
‘Constructive or Implied Trusts’
Constructive trust arises by operation of law.It emerges without regard to the
intention of the parties to create a trust.It arises as from the date of the
circumstances which give rise to it. The function of the court is only to declare that
such a trust that has arisen in the past. It is not a trust declared by any person either
by clear or even by doubtful words.  It arises in a variety of situations. Eg. 
Trustee-de-son-tort, holder of lost good, husband possessing dowry,money paid
under a plain mistake of fact etc. Since there may be no intention for the parties to
create a trust relation, it is said: ‘A constructive trustee may not know that he is a
trustee.’
Constructive trust is ‘a trust to be made out by circumstances’. It is more than a
concept. It is a remedy. It is akin to fiduciary duty with responsibility,
accountability, etc. Such fiduciary obligations are incorporated in the statute,
principally to render justice and also to extend protection to the legally deserving
ones from those who unlawfully enrich otherwise. These are benevolent legal
safeguard in favour of dissipated and exhausted ones, on equitable considerations.
Public benefit is a necessary condition of constructive trust. When an ostensible
owner holds a property for the benefit of another under an obligation annexed to
the ownership, he is said to hold the property in trust for that other person.
Constructive trust may be an implied trust. That is, it may be applied on the ground
of‘implied intention’. Its forms and varieties are practically without limit. It is
gathered by a court of equity whenever it becomes necessary, in justice and good-
 conscience, that such a trust should exist. The categories of constructive trusts are
never closed.
Constructive trust is an equitable remedy.If it becomes necessary, the courts in
India, as courts of equity, will invoke the doctrine of constructive trust and deal
with the holder of property as a trustee for the party who in equity is entitled to the
beneficial enjoyment. Lord Denning has said as under: 
 “It is an equitable remedy by which the court can enable an aggrieved party to
obtain restitution.”
Lewin on Trust speaks on Constructive Trust as under:
 “A constructive trust is raised by a court of equity wherever a person, clothed with
a fiduciary character, gains some personal advantage by availing himself of his
situation as trustee; for as it is impossible that a trustee should be allowed to make
a profit by his office, it follows that so soon as the advantage in question is shown
to have been acquired through the medium of a trust, the trustee, however good a
legal title he may have, will be decreed in equity to hold for the benefit of his
cestuique trust. A common instance of a constructive trust occurs in the renewal of
leases; the rule being, that if a trustee, or executor, or even an executor de son tort,
renew a lease in his own name, he will be deemed in equity to be trustee for those
interested in the original term. The new lease is deemed to be a graft upon the old
one”.
Professor AW Scott in his book on Trusts has explained the “constructive trust” as
follows:
 “Similarly, where chattels are conveyed or money is paid by mistake, so that the
person making the conveyance or payment is entitled to restitution, the transferee
or payee holds the chattels or money upon a constructive trust. In such a case, it is
true, the remedy at law for the value of the chattels or for the amount of money
 paid may be an adequate remedy, in which case a court of equity will not
ordinarily give specific restitution. If the chattels are of a unique character,
however, or if the person to whom the chattels are conveyed or to whom the
money is paid is insolvent, the remedy at law is not adequate and a court of equity
will enforce the constructive trust by decreeing specific restitution. The beneficial
interest remains in the person who conveyed the chattel or who paid the money,
since the conveyance or payment was made under a mistake …
 The beneficial interest in the property is from the beginning in the person who has
been wronged the constructive trust arises from the situation in which he is entitled
to the remedy of restitution, and it arises as soon as that situation is created. For
this reason, the person who is wronged is entitled to specific restitution from the
wrongdoer even though the wrongdoer becomes insolvent before suit is brought,
and he is entitled to specific restitutions from a person to whom the wrongdoer has
transferred the property, if the transferee is not a bona fide purchaser, even though
the transfer is made before suit is brought for restitution. It would seem that there
is no foundation whatever for the notion that a constructive trust does not arise
until it is decreed by a court. It arises when the duty to make restitution arises, not
when that duty is subsequently enforce.”[35]
The Supreme Court, in Swami Shivshankargiri Chella Swami Vs. Satya Gyan
Niketan,[36] considered whether a trust would arise when the donor waqfed
(gifted) property to a society registered under the Indian Societies Registration Act,
1960, for the development and publicity of the Hindi Language. The property was
gifted on condition that the society would not have a right to mortgage or right of
sale. The society had not been taking any interest in achieving the purpose. The
Apex Court observed that prima facie it appeared that a constructive trust was
created. Accordingly, the application filed under Section 92 of CPC would be
maintainable.
 The principles of constructive trust and fiduciary relationships are equitable
principles, and equity never operates in an absolute manner or in a vacuum. In fact,
the very basis of the law of equity is its flexibility to take care of mutual concerns
of the parties. Equity is about balancing the competing interests- by preventing the
erosion of interests of one party while ensuring a free exercise of legally enshrined
discretionary powers to the other. No doubt, specific fiduciary duties could
definitely be recognised in the specific facts of the case but the manner of
performance of such duties cannot be dictated in regulatory matters. Legal
recognition of the role of a trustee and fixing actual obligations to be performed
under such role are two separate matters. The latter is dependent on the nature of
discretion and on the diligence of other party.
Constructive Trust: Jurisdiction Derived from S. 151 CPC & S. 88 Trusts
Act.
Sections 80 to 96 of the Indian Trusts Act, 1882 lay down the specific instances in
which the doctrine of constructive trust could be applied. Apart from these
particular instances, the general principles as to constructive trusts had been
contained in Sec. 94 of the Trusts Act. Sec. 94 was deleted by Sec. 7 of the Benami
Transactions (Prohibition) Act, 1988.
Erstwhile Sec. 94 read as under:
 94. Constructive trusts in cases not expressly provided for. – In any case not
coming within the scope of any of the preceding sections, where there is no trust,
but the person having possession of property has not the whole beneficial interest
therein, he must hold the property for the benefit of the persons having such
interest, or the residue thereof (as the case may be), to the extent necessary to
satisfy their just demands.
 In Gopal L. Raheja Vs. Vijay B. Raheja, the Bombay High Court accepted the
argument that the position of law in India, did not permit a recourse to the doctrine
of constructive trust inasmuch as Sec. 94 had been deleted.
But, our Apex Court after considering the Bombay decision in Janardan Dagdu
Khomane Vs. Eknath Bhiku Yadav it was held as under:
 “In Gopal L. Raheja Vs. Vijay B. Raheja, the Bombay High Court restrained itself
from exercising its equitable jurisdiction to apply the English doctrine of
constructive trust when the legislature had specifically deleted it from the Indian
Trusts Act.
 In our view, the repeal of Section 94 of the Act does not put any fetter in declaring
a trust, even if the situation falls outside the purview of the Act. Its jurisdiction can
be derived from Section 151 of CPC and Section 88 of the Indian Trusts Act.”
Sec, 88 of the Indian Trusts Act, 1882 reads as under:
 88. Advantage gained by fiduciary.—Where a trustee, executor, partner, agent,
director of a company, legal adviser, or other person bound in a fiduciary character
to protect the interests of another person, by availing himself of his character, gains
for himself any pecuniary advantage, or where any person so bound enters into any
dealings under circumstances in which his own interests are, or may be, adverse to
those of such other person, and thereby gains for himself a pecuniary advantage, he
must hold for the benefit of such other person the advantage so gained.
The Andhra Pradesh High Court in Abdul Razack Vs. Mohammed
Rahamatullah inferred a constructive trust under section 88 of the Indian Trusts
Act. The Division Bench held as under:
 “The principle, however, is quite clear, in that a person who is in a fiduciary
position and is bound to protect the interests of another person and who takes
advantage of the same and makes profit or derives benefit or acts in any manner
adverse to the interests of that person he would be liable to that person or holds the
benefit as a trustee of that person whose property he had utilised or against whose
interests he had acted. The principle embodied in that section is wide. It embraces
all cases of dealings entered into by the person under circumstances in which his
own interests may be adverse to that of the beneficiary. This section also was held
not to be exhaustive and is wide enough to cover the case of those transferees who
had taken the property with notice of the transferor’s defective title.”
12. Mutual & Reciprocal Trusts and Secret Trusts
Our Apex Court explained these matters in Shiva Nath Prasad Vs. State of West
Bengal as under:
“To understand the basis of the complaint we need to understand the concept of
mutual wills, mutual and reciprocal trusts and secret trusts. A will on its own terms
is inherently revocable during the lifetime of the testator. However, “mutual wills”
and “secret trusts” are doctrines evolved in equity to overcome the problems of
revocability of wills and to prevent frauds. Mutual wills and secret trusts belong to
the same category of cases. The doctrine of mutual wills is to the effect that where
two individuals agree as to the disposal of their assets and execute mutual wills in
pursuance of the agreement, on the death of the first testator (T1), the property of
the survivor testator (T2), the subject matter of the agreement, is held on an
implied trust for the beneficiary named in the wills. T2 may alter his/her will
because a will is inherently revocable, but if he/she does so, his/her representative
will take the assets subject to the trust.”
Active and Passive Trustees
Duty of the trustees may be passive or active according to the nature of the
trust.Underhill has defined a simple trust as a trust in which the trustee is a mere
 repository of the trust property, with no active duties to perform. In Principles of
Equity by H. A. Smith which reads: 
 “A trust is a duty seemed in equity to rest on the conscience of a legal owner. This
duty may be either passive, such as to allow the beneficial ownership to be enjoyed
the some other person, named the cestui que trust, in which case the legal owner is
styled a bare trustee; or it may be some active duty, such as to sell, or to administer
for the benefit of some other person or persons; such for example are the duties of
a trustee in bankruptcy.”
Constructive Trust in Indian Trusts Act: Sections 80 to 96
Chapter IX,‘Certain Obligations in the Nature of Trusts’, of the Indian Trusts Act
incorporates instances of implied or constructive trust. Sec. 80 reads as under:
 80. Where obligation in nature of trust is created.—An obligation in the nature of a
trust is created in the following cases.
Sec. 83 onwards considers the following. (Secs. 81, 82 and 94 were repealed by the
Benami Transactions (Prohibition) Act, 1988, Sec. 7.)
 83.    Trust incapable of execution or where the trust is completely executed
without exhausting the trust property. The trustee must hold the trust property, or
so much thereof as is unexhausted, for the benefit of the author of the trust or his
legal representative.
 84.    Transfer for illegal purpose. The transferee must hold the property for the
benefit of the transferor.
 85.    Bequest for illegal purpose. The legatee must hold the property for the
benefit of the testator’s legal representative.
 86.    Transfer pursuant to rescindable contract, or induced by fraud or mistake.
The transferee must, hold the property for the benefit of the transferor.
 87.    Debtor becoming creditor’s representative. He must hold the debt for the
benefit of the persons interested therein.
 88.    Advantage gained by fiduciary. A trustee, executor, partner, agent, director of
a company, legal adviser, or other person bound in a fiduciary character must hold
for the benefit of such other person the advantage so gained.
 89.    Advantage gained by exercise of undue influence.The person gaining such
advantage must hold the advantage for the benefit of the person whose interests
have been so prejudiced.
 90.    Advantage gained by qualified owner. A tenant for life, co-owner,
mortgagee, or other qualified owner of any property, must hold, for the benefit of
all persons interested, the advantage so gained.
 91.    Property acquired with notice of existing contract must hold that property for
the benefit of the latter to the extent necessary to give effect to the contract.
 92.    Purchase by person contracting to buy property to be held on trust must hold
the property for their benefit to the extent necessary to give effect to the contract.
 93.    Advantage secretly gained by one of several compounding creditors – must
hold, for the benefit of such creditors, the advantage so gained.
Secs. 95 and 96 deal with connected general matters. They read as follows:
 95. Obligor’s duties, liabilities and disabilities.—The person holding property in
accordance with any of the preceding sections of this Chapter must, so far as may
be, perform the same duties, and is subject, so far as may be, to the same liabilities
and disabilities, as if he were a trustee of the property for the person for whose
benefit he holds it:
 96. Saving of rights of bona fide purchasers.—Nothing contained in this Chapter
shall impair the rights of transferees in good faith for consideration, or create an
obligation in evasion of any law for the time being in force.
OVERVIEW OF THE DOCTRINE OF CYPRES

The word “Cypres” is a Latin word which means, “as nearly as possible” or
“approximation”. About the charity, it means the application of that fund to the
objects or a purpose which are not precisely those the donors provided for but
which are as nearly as possible fit for his intention. This term is primarily
applicable to trusts and in its technical sense means that if the wishes of the author
of a trust cannot be accomplished literally, they will be performed as nearly as
possible in the way desired by the author.

Application of the Doctrine of Cypres

The doctrine of Cypres pertains to a charitable trust and does not apply to any
private trust. This doctrine is acceptable in the following three situations:-
1. Where the general philanthropic purpose is committed but the author of the
trust has not expressed or has failed to convey with the reasonable method
by way of which it has to get it out by the court.
2. Where the author of the trust has made a gift to the particular charity or a
trust but the gift is or becomes inadequate for taking effect.
3. Where the charitable purpose expressed by the settler does not exhaust the
property affected.
Meaning of Charitable Trust
To better understand the meaning of Cypres, one should know the meaning of
“Trust” under the Indian Trust Act. The Act provides for two kinds of Trust:-
1. Private Trust.
2. Public Trust.
The word Cypres deals with Public Trust.
A Charitable Trust may be defined as a trust to attain the following objective and
which is profitable to the public:
1. Improvement of an Education.
2. Trust was created for the objective of the development of religion.
3. Trust created for the Relief of Poverty.
4. Trust is created for the end of any disease.
5. Trust is created for any medical relief etc.
Conditions for the Doctrine of Cypres
Following are the conditions for the Doctrine of Cypres:-
1. It must be challenging to carry out a donor’s intention literally with the
literal interpretation.
2. The donor must have embodied a paramount intention of charity.
3. The new objective to which the property is to be associated must be in
nature as nearly as possible to the particular objective expressed by the
settler but incapable of taking effect.
Application of Doctrine of Cypres in Muslim Law
This doctrine applies to waqfs also. Thus, if from the alteration of conditions and
lapse of period, or for some distinct adequate justifications, it has become
challenging to pertain the property of the waqf in the manner authorized by the
waqif, the court may apply
 1. for identical objectives by distinct means as nearly as possible, to the actual
intentions of the grantor or
2. for the privilege of the poor in diverse ways, and 
3. It also has the ability to vary the strategy accordingly.
Where the testator has indicated a general charitable intention in the gift made by
him, and if these gifts fail, the court can commit the property of religious,
charitable objectives, according to the Cypres doctrine.[1] Where the clear motive
is expressed in the instrument of waqf, it will not be authorized to fail because the
objects, if specified, happen to fail, still, the income will be applied for the benefit
of the poor or as nearly as possible to the objects which failed.[2] For example, if a
waqf is created for eliminating ignorance among the adults of a region, but after
some period it is established that illiteracy among the adults of that region has been
removed. If they have become literate, then the earnings of that property may be
utilized for lending them additional education or for educating children of that
region.
Legal incidents of Waqf
The following are the legal incidents of Waqf :
1. Irrevocability:- According to the view of Abu Hanifa is that a Waqf can be
invalidated by Waqif unless a decree of the court has substantiated the
proclamation. But Abu Yusuf takes a contradictory perspective and holds
that a declaration of Waqf is in its nature irrevocable. In India, the viewpoint
of Abu Yusuf is regarded.
2. Perpetuity:- Perpetuity is an essential condition of Waqf. A waqf for a
limited period is not valid.
3. Inalienability:- As the Waqf estate belongs to God, no human being can
disaffect it for his objectives. Therefore, Waqf estate cannot be sold,
transferred, or encumbered. The estrangement of the Waqf estate except for
 the necessities of the Waqf and without the Court’s authorization is invalid.
Similarly, Waqf property is not liable to attachment and sale in the
commission of a personal decree against the mutawalli nor can the rents and
profits, therefore, be confiscated in execution.
4. Holy or Charitable use of usufruct:- The produce and benefits of the Waqf
property are utilized for such objectives which are acknowledged as
religious, pious, and charitable under Muslim Law.
5. Absoluteness:- The settlement of the property in Waqf is absolute. A
conditional or contingent Waqf is invalid.
Under Muslim, Law Waqf has been categorized into two categories:-
1. Public Waqf
2. Private Waqf.
A public waqf is one for the public, religious or charitable objectives, wherein a
private waqf is one for the settlor’s own family and descendants and is technically
called, waqf- ul- aulad. It was contemplated at one time that to comprise a valid
waqf there must be the dedication of property solely to the adoration of God or to
religious or charitable objectives and a private waqf is in no case valid. But this
extreme perspective is now no longer justifiable, and private waqf may now be
formulated subject to specific constraints.
Situations where the Doctrine becomes Inapplicable
The doctrine cannot be applied for rationalizing the recreation of the waqf funds
committed for one purpose, to another use.[3] The intention of the waqif must
invariably be taken into deliberation, and they would regulate the application and
destination of the waqf property exclusively.[4] In cases where the commitment
was illusory, or it was not purposeful for charity, Still only to profit the members
of the waqif’s family, such waqfs were not held valid before the passing of the
Waqf Validation Act and in cases of such downfalls, the Cypres doctrine was not
applied.
The Wakf Validation Act, 1913
The Privy Council legislated in Abdul Fata Mohammed Irshad v. Rassomoy Dhur
Chowdhary,[5]that if the primary object of waqf is the aggrandizement of family
and the gift of charity is illusory where from the small amount or its uncertainty
and remoteness, the waqf persists invalid. No effect can be given to it. This
decision of the Privy Council created umbrage among the Muslims of India, They
made dominant indications to the consequence that the rule as applied down was a
deviation from the Muslim Law. Accordingly, the Wakf Validation Act of
1913 was enacted, under which a Mohammedan can formulate a waqf for the
privilege of his descendants, provided that the absolute benefit is earmarked for
charity.
Under the Wakf Act 1913, a Muslim can bind his property in perpetuity for the
support of his family, children, and descendants, provided that he creates a
prerequisite that the supreme benefits go to a charitable object of a durable nature.
It is now open to him to suspend benefits being bestowed upon charity, till the
demise of all his family descendants. Such a reservation of absolute privilege may
be made either expressly or impliedly. Under this Act, a Hanifa Muslim cannot
enjoy the aggregate income or a life interest in the income of the trust property. He
can only share in the revenue by way of maintenance. The Act also substantiates,
in the case of a Hanifa Muslim a provision for the payment of the debts of the
settler out of the rents and profits of the property committed. Before the Act, he
could not make a condition that his debts should be paid from the estate.
On July 25, 1930, The Mussalman Wakf Validation Act of 1930 came into effect
retrospectively and was made applicable to wakfs created before March 7, 1913.
Before the legislation of the Wakf Act, 1995, the following enactments dealt with
the administration and supervision of wakfs:
1. Wakf Act, 1954.
2. U.P. Wakf Act, 1950.
3. Bengal Wakf Act, 1934.
4. Bihar Wakf Act, 1937.
5. Bombay Public Trust Act, 1950.
6. Durgah Khwaja Saheb Act, 1955.
7. Section 92 of the Code of Civil Procedure.
Conclusion
Cypres means approximately next, or as maybe it comes into operation as a case of
a religious or charitable trust when the undertaking of charitable trust becomes
inexpedient the court will commit its cypres. The objective of such a trust must be
Generous. It can be said that the Doctrine of Cypres is a legal concept that gives
the court the power to interpret the terms after will, gift, or charitable trust.