ABID HATIM MERCHANT Vs. JANAB SALEBHAI SAHEB SHAIFUDDIN

JUDGEMENT

(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: