FAMILY LAW II

ASSIGNMENT 1- RESEARCH
PAPER
(F – slot)

The Doctrine of Cy-pres in Family Law: A Critical

Analysis of its Application, Implications, and Case Law

NAME: R. ZAHEER ULLA SHRIFF

REG NO: 21BLA1122
SUB: FAMILY LAW-2
VITSOL
Date of submission: 11/06/2023
Abstract:
The doctrine of cy-pres, traditionally associated with trusts and property law, has
found its way into family law. This research paper critically analyzes the use of cy-pres
principles in family law matters, with a focus on its potential to promote the best
interests of children and uphold the intentions of family law legislation. By examining
relevant case law, statutes, and scholarly works, this paper contributes to the existing
knowledge on the doctrine of cy-pres in family law. It critically explores the historical
evolution of cy-pres, its theoretical underpinnings, the legal framework, practical
implications, and case law related to the doctrine.

Introduction:
Cypres, a Latin word, refers to applying funds to objects or purposes that
are as nearly as possible to the original intended purpose. It originated in English law
and is used in relation to charitable trusts. Gifts for such trusts can fail if the precise
object or mode of application is uncertain. The court will settle a scheme for applying
funds to another purpose as near as possible to the truster's prescribed purpose. The
power to alter the power of a trust is only used when it is impossible or impracticable
to give literal effect to the intended purpose.

The presence of a wider or paramount charitable intention can save a gift

from initial failure. The doctrine of cy pres is available without width of charitable
intent and jurisdiction depends on section 13 of the Charities Act, 1960. If there is a
surplus of funds after the specified charitable object has been carried out, the same
will be applied cy pres, provided a paramount intention of charity appears. The court
has no authority to sanction deviations from the donor's expressed intention, and the
application of trust property or income to another purpose would be more expedient
or beneficial.

The Doctrine of Cy-pres: A Critical Examination:

The doctrine of cy-pres, a related Islamic legal system doctrine, has evolved
over time and has faced controversies and challenges. It is essential for determining the
validity of waqf dispositions and property settlement efficacy. Cypres is applicable to
wills and charitable gifts by deed inter vivos, and its application is based on a general
charitable intent. It is a doctrine of equity that has been liberally applied to prevent
charity failures, but its effectiveness in achieving its intended objectives is critical. The
scope and applicability of cy-pres in family law should be discussed, analyzing its
effectiveness in achieving its intended objectives.
Cy-pres in Family Law: Applicability:
The connection between family law and charitable principles should
be assessed, examining any tensions or conflicts. The doctrine of cy-pres, which
means "as near as possible," can be used to balance the best interests of children
with parental intentions, acknowledging potential limitations or unintended
consequences. A resulting trust arises when a fund is constituted for a specific
purpose and fails or has been fulfilled with a surplus left over. The court may execute
a trust cy-pres if there is a general paramount intention for the benefit of charity, but
only if there is a disposition for a well-defined specific purpose. The doctrine is
applicable to trusts created by wills and not to those created by deeds or intra vivos
words of mouth. Compensation money must be applied to another object of charity
by applying the doctrine of cy-pres. Evaluate the alignment of cy-pres with family law
objectives and values, considering any inconsistencies or challenges.

Applicability in Hindu law:

In the case of Mayor of Lyons v A.G. of Bengal, the Judicial
Committee adopted English law principles in India. General Claude Martin
bequeathed over 30 lakh rupees of his properties to charities, including a gift for the
release of prisoners for debts in Calcutta, relief for poor prisoners in Lyons, liberation
for poor prisoners in Lucknow, three bequests to found charities in Calcutta, Lyons,
and Lucknow, and a gift of the residue equally between them. The will directed that
the fund should remain in the estate if the bequest failed. The Mayor of Lyons
appealed against the decision to the Privy Council, arguing that the Cy pres doctrine
could not apply when the residue of the testator's estate was given to charity.
The Judicial Committee held that the Cy pres doctrine could not be
displaced when the residuary bequest is to charity or if there is something analogous
to the benefit of survivorship. The court gets jurisdiction to act on the Cy pres
principle, regardless of whether the residue is given to charity or not. In applying the
Cy pres doctrine, search should be made for objects akin to the failed object, though
the court may have regard to other objects of the testator's bounty as mentioned in
the will.
The application of the Cy pres principle to surplus income of a trust fund
is illustrated by the Calcutta High Court's decision in Advocate-General of Bengal v
Capt. S. Webb Johnson, which related to the Silver Wedding Trust Fund. The fund was
held for charitable endowments and the income was applied for the higher education
of children of Indian soldiers who had fallen or become permanently disabled during
the last Great War. The court applied the Cy pres principle and extended the scope of
the trust to include the education and assistance of children and dependents of
Indian officers and soldiers who rendered military service during the war or
participated in subsequent warlike operations.

Legal Framework and Case Law Analysis:

Critically examine the relevant statutory provisions and case law related to the use of
cy-pres principles in family law, identifying any gaps, inconsistencies, or areas of
potential improvement.
Analyze key family law cases where cy-pres has been applied, critically evaluating the
reasoning, outcomes, and potential impacts on affected parties.
Assess the judicial interpretation and application of cy-pres in family law cases,
identifying any concerns or limitations in the current approach.

1. Ratilal vs. State of Bombay, A.I.R 1954 SC 388.2.

2. Shankarnarayan vs. H.R.R Board Madras, (1948) 74 IA 230,3.
3. Thakersy Devraj vs. Harbhan Narsy, 8 Bom 432 ILR4.
4. Jamnabai vs. Khimji, 14 Bom 1,ILR 5.
5. Gulam vs. Ajia,4 Mad HC 44
&…etc…

Application of the Cy pres doctrine in Muslim Law

The Cypres doctrine is a legal principle that states that a wakf
cannot be applied to desired objects due to changes in circumstances or lapse of
time. The English doctrine is narrower than the Muslim doctrine, but both systems
have a common feature: there must be a valid trust or wakf in existence before this
doctrine can fix itself. The purposes of a wakf are not always indicated with
reasonable certainty, and there is a divergence of views between modern authorities
and ancient doctors. In Morrice v. Bishop of Durhan, a leading case on charities in
England, it was held that a bequest for uncertain and vague objects was invalid. This
ruling was followed by the Privy Council in Runchordas v. Parvatibai, leading to a
tendency among the Indian High Courts to hold that a wakf for good objects in
general was void. However, Justice Ameer Ali argued that the principle of Morice v.
Bishop of Durham was not applicable to the law of wakfs, as the Cypres doctrine is
carried to the utmost limit in the Moslem system. In cases where the primary object
fails, the failure accelerates the ultimate application. The property dedicated to a
religious or charitable institution that ceases to exist may be applied to another
religious or pious institution similar in character to the one that has failed, or to any
other object by which benefit may accrue to human beings. The latest trend in
Islamic law agrees with Ameer Ali and Tyabji's views that a good wakf is created when
there is a bonafide intention on the part of the wakf to create a wakf and divest
himself completely of the property. The Cypres doctrine aims at a judicial
determination of a particular purpose to which the trust fund shall be applied and
which is as near to the settlor's intention as possible.
However, there is no provision or machinery for such determination
under Islamic Law. The Cypres doctrine does not mean that courts should apply the
wakf property or its income to other purposes simply because they considered them
more expedient or more beneficial than the settlor had directed. The Shia law
extends this doctrine further than under the Hanafi Law, allowing the usufruct of a
wakf for "good purposes generally" and preference is given to an object as near as
possible to the object of the original wakf. In cases where the object is partly valid
and partly invalid, the property relating to invalid objects will revert back to the wakif.
The Madras Court observed that the whole income of such a wakf can be applied to
the valid objects.

Practical Implications and Recommendations:

Critically evaluate the practical implications of utilizing cy-pres in family
law, considering potential ethical dilemmas, unintended consequences, and social
implications. Provide critical recommendations for enhancing the fair and
appropriate application of cy-pres in family law, suggesting alternative approaches or
additional safeguards to address identified limitations.

Conclusion:
The theory states that when a clear charitable purpose is contained in the
Wakf instrument, it will not be permitted to fail because if the objects listed fail, the
revenue will be for the benefit of the needy or to objects as close to the failed objects
as practicable. Unless the original wakf is legitimate, this theory is inapplicable. The
application of the concept cannot legitimise a wakf that is devoid of doubt.
Furthermore, the concept cannot support the diversion of wakf property to other
uses.
The question of whether wakf property can be provided to other religious
or charitable purposes must be resolved in light of the wakif's intentions, which must
always be taken into account and control the application of the income. Thus, if the
wakf did not indicate a broad benevolent intent in favour of the poor or other
charitable objects for the benefit of the public in general for as long as the
descendants were living, it would be breaching the intention of the walkif to convert
from a wakf-alal-aulad to a public wakf.
References:
Include a comprehensive list of all sources, statutes, cases, and scholarly works cited
in the paper.
https://blog.ipleaders.in/all-you-need-know-about-cy-pres-doctrine/
https://www.wallcliffslawfirm.com/uploads/newsletter-files/20210106154805169-
Legal_Angle_-_January_2021_-_Issue_01.pdf
https://www.investopedia.com/terms/c/cy-pres-doctrine.asp
https://www.studocu.com/in/document/amity-university/trade-laws/doctrine-of-
cypress-good-notes/56421583
https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?
article=3421&context=ilj
Note: In this analysis, it is crucial to engage with alternative viewpoints and critically
evaluate the strengths and weaknesses of the doctrine of cy-pres in family law.
Consider incorporating scholarly critiques, addressing any identified
limitations or ethical

Thank You…😊

R. Zaheer Ulla Shriff

21BLA1122