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.
There is a distinction between the English and the Muslim Law as regards the doctrine of Cypres. English Law enforces it’s an appliance to objects as near as possible to the objectives specified by the donor, At the same time, Muslim Law requires the income for the objects that have failed to be devoted to the poor, as in all Muslim waqfs the poor are the ultimate beneficiaries, whether named or not in the legacy.
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:-
- Where the general philanthropic purpose is committed but the author of the trust has not to express or has failed to convey with the reasonable method by way of which it has to get it out by the court.
- 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.
- 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:-
- Private Trust.
- 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:
- Improvement of an Education.
- Trust created for the objective of the development of religion.
- Trust created for the Relief of Poverty.
- Trust created for the end of any disease.
- Trust created for any medical relief etc.
Conditions for the Doctrine of Cypres
Following are the conditions for the Doctrine of Cypres:-
- It must be challenging to carry out a donor’s intention literally with the literal interpretation.
- The donor must have embodied a paramount intention of charity.
- 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
- for identical objectives by distinct means as nearly as possible, to the actual intentions of the grantor or
- for the privilege of the poor by diverse ways, and
- 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. Where the clear motive is expressed in the instrument of waqf, it will not be authorized to fail because of 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. 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. 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 :
- 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.
- Perpetuity:- Perpetuity is an essential condition of Waqf. A waqf for a limited period is not valid.
- 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.
- 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.
- 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:-
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 to 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. The intention of the waqif must invariably be taken into deliberation, and they would regulate the application and destination of the waqf property exclusively. 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,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 benefit 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:
- Wakf Act, 1954.
- U.P. Wakf Act, 1950.
- Bengal Wakf Act, 1934.
- Bihar Wakf Act, 1937.
- Bombay Public Trust Act, 1950.
- Durgah Khwaja Saheb Act, 1955.
- Section 92 of the Code of Civil Procedure.
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.
BY- Ruma Minj | Indian Institute of Legal Studies