Avadh Behari Rohatgi, J.
(1) Many, years ago there lived a man called Ganga Sahai in village Bhartal near Delhi. He owned much land in the village. In 1913 he purchased land bearing. Khasra No. 1177 from Ranjit and Ram Singh, sons of Gulab Singh. They were the predecessors-in-interest of the present respondents 2 to 5 to this appeal. This land Ganga Sahai purchased without share in shamlet deh. In revenue record he got mutation effected in his name. Ganga Sahai had no son. He, thereforee, gifted the land to his daughter's son, Ram Sarup, the present appellant in 1928. This he did by means of a registered gift deed dated 15-3-1928. Mutation was accordingly effected in favor of Ram Sarup. On this land admeasuring 13 bighas-7 bids was Ganga Sahai had built a dharamshala, a well and a piao.
(2) On 29tb May, 1932 before a gathering of the people of the village Ganga Sahai's daughter Mst. Khem Kaur, on behalf of her minor son, the present appellant, made a statement that there was no dharamshala in village Bhartal and, thereforee, he, the appellant, dedicates the land, dharamshala, well, khel and kotha for the benefit of the public. Ram Sarup appeared before as. He told us he is now 68 years of age. In 1932 he was a boy of 15 or 16 years. thereforee, on his behalf, the mother made the statement dedicating the land and the building of dharamshala to the use of the public. This is what appears from the mutation entry No. 413 (Ex. A-14) dated 29-5-1932. There is a further entry by the Revenue Officer where he says that the construction of dharamshala, well, khel kotha is complete and the Piao, which is most needed at this spot. is properly functioning. Then the Revenue Officer goes on to say 'Because this act has been done for the welfare of the public and donor (Ram Sarup) belongs to Jat caste and is an agriculturist and dedicates the land to Dharamshala, a non-agriculturist, thereforee, mutation be sent to the Deputy Commissioner for sanction.' This shows that the dharamshala was retarded as an abstract person, a non-agriculturist. for purposes of chrarity. The Deputy Commissioner sanctioned the mutation on 14-6-1932.
(3) In 1941 there was a consolidation of land in this village. The old Khasra No. 1117 was converted into Khasra No. 539 measuring 13 bighas-7 biswas. In 1954 the Delhi Land Reforms Act came into force. In exercise of his powers under section 2(c) of the Act the Chief Commissioner exempted this land from the operation of the Delhi Land Reforms Act in August, 1957.
(4) In the Gazette Notification dated October 31, 1959 (Ex. C-1) the following entry appears :
No. Name Khewat Name of the Name of the Field Area Re- of No owner with tenants with No. marks village - - - remarks remarks Number Khatauni (1) (2) (3) (4) (5) (6) (7) (8) 151 Dharamshala of Ram Sarup, S/o 539 13-7 village Bharatal Hans Raj, 197 Malik Kabza, caste Jat, Ranjit entered r/o Bhartal, in Khewat No. non-occupancy 145. tenants.
(5) This again shows that there was a dedication to charity. Dharamshala, an abstract person, was the owner of the land. 'A gift with a general intention of charity is essentially a gift to charity considered as an abstract person' [Tudor on Charities (5th ed.), page 145].
(6) Subsequently this land was compulsorily acquired by the government. Notification under section 4 of the Land Acquisition Act (the Act) was issued on 3-12-1971. Declaration under section 6 of the Act was made on 17-5-1972. The Collector made the award on 29-1-1973. He awarded compensation to the tune of Rs. 41,825.50 with solarium and interest at the rate of 6 per cent per annum. Possession of the land was taken by the Collector from the appellant (A-6) on 29-1-1973.
(7) Before the Land Acquisition Collector the appellant, as ex-owner of the land, demanded that the compensation be paid to him. On the other hand, respondents 2 to 5 laid their own claim being the successor-in-interest of Ranjit, the original vendor who had sold the land on 28-2-1913 (A-24) to Ganga Sahai. There being a dispute to compensation the collector made a reference under ss. 30 and 31 of the Act to the court of the District Judge Delhi. Before the judge rival claims were made by the appellant, on the one hand, and respondents 2 to 5 on the other. the learned Additional District Judge heard the reference. He took oral and documentary evidence. He came So the conclusion that respondents 2 to 5, successor-in-interest of Ranjit, are entitled to compensation of the land. He accordingly ordered that compensation be paid to them. from his order dated 20-12-1977' the appellant Ram Sarup appeals ie this court
(8) The judge found that the appellant had dedicated the land to Dharamshala and thereforee he had no right to compensation. By a curious reasoning he gave compensation to respondents 2 to 5 simply on the ground that the appellant was not entitled to it, at bait that he was the founder. In a private selfish fight of two rival claimants public benefit received no attention. So the charity went away disappointed from the court.
(9) The clear-cut issue is : Who was the owner of the land and who is entitled to get the compensation It appeals that the land had been dedicated to charity. So were the dharamshala, well, khel, kotha and piao. The dharamshala is shown as the owner of the land in the revenue records. Dharamshala represents charity. It was personified. Now the dharamshala having been acquired by the Government the compensation amount represents the charity. Neither the appellant nor respondents 2 to 5 can lay any personal claim to the amount of compensation. The appellant had dedicated the land and the dharamshala for the benefit of the public. thereforee, public charity is the owner.
(10) The predecessor-in-interest of respondents 2 to 5 had sold the land on 28-2-1913 by means of a registered sale deed and thereforee Ranjit had no interest left in the land after sale. He was only entitled to a share in shamlet. Ganga Sahai had not purchased the share in shamler. and for this reason the name of Ranjit figures in jamabandi as 'malik kabza hakdar shamlet'. With shamlet we are not concerned in this appeal. The subject-matter of this appeal is compensation for the acquired land bearing Khasra No. 539 admeasuring 13 bighas 7 bids was of which dharamshala is shown as the owner in the revenue records. We have, thereforee, no hesitation in rejecting the claim of respondents 2 to 5 to compensation.
(11) The question for decision is : What do we do with this money As we have said, the land was dedicated to charity. On the land a dharamshala had been built. Dharamshala has been acquired along with the land. So the original purpose of the trust has failed. The compensation amount must thereforee be applied to another object of charity. This can be done by applying the doctrine of cy pres and by framing a scheme. But the object must he a work of public advantage. The word used in revenue record of 1932 is 'Rafac-am' which means purposes beneficial to the public, public welfare. The money must be applied for the benefit of the public or a section of it. The characteristics of a charitable trust are the expression of a definite charitable purpose and the indefiniteness of the beneficiaries. Public charity is a charity wherein the benefit is conferred on indefinite persons composing the public or some part of the public. Any purpose of general benefit untainted by motives of private 'am is charitable. The fundamental requirement of a charitable gift is in my opinion, correctly stated in the following passage in Tudor on Charities (5th ed.) p. 11 :
'IN the first place it may he laid down as a universal rule that the law recognises no purpose as charitable unless it is of a public character. That is to say a purpose must. in order to be charitable, be directed to the benefit of the community or n section of the community'.
(Re Cumpton, Powell v. Compton, per Lord Greene, M.R. at pp. 128, 129).
'THERE are hospitals where patients pay something according to their means, but that does not prevent, such a hospital from being a charity in the legal sense, nor do I think a school would be prevented from being a charity because the boys who received the benefit paid for their education a moderate sum proportionate to their means'.
(Re Webster. Pearson v. Webster.
(13) Under section 92 of the Code of Civil Procedure the Court of the District Judge nas the power to administer public charities. Sub-section (3) of section 92 embodies the doctrine of cy pres Sub-section (3) is new and has been inserted by the Amendment Act 197t). Sub-section (3) says :
'(3)The Court may alter the.' original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust. or any portion thereof to be applied cy pros in one or more of the following circumstances, namely:
(A)where the original purposes of the trust, in whole or in part,
(J)have been. as far as may be. fulfillled: or
(II)cannot be carried out at- all. or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or
(B)where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(C)where the property available by virtue of the trust and other property available for similar purposes can he more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(D)where the original purposes. in whole or in part, were laid down by reference to an area which then was. but has since ceased to be a unit lor such purposes: or
(E)where the original purposes, in whole or in part, have, since they were laid down,
(I)been adequately provided for by other means, or
(II)ceased, as being useless or harmful to the community, or
(III)ceased to be in law charitable, or
(IV)ceased in any other way to provide a suitable and effective method of using the property available by virtue of the (rust, regard being had to the spirit of the trust.'
(14) No attention was given to this sub-section (3). This subsection has been copied from section 13 of the Charities Act of 1960 of England. Even before the enactment of sub-section (3) the Indian courts did have the power under the law to apply cy pres doctrine to public trusts. Sub-section (3) really extends the occasions on which the property may be applied vy pres. This provides the circumstances in which the 'original purposes' of a charitable or religious trust can be altered and the property can be applied cy pres. It even allows consolidation of a number of charities under sub-section (c). The jurisdiction created by sub-section (3) and in particular sub-cl and affords the most important relaxation of the old cy pres rule and will probably be of the most practical use in enabling funds to be utilised for the maximum benefit of the public.
(15) 'THE original purposes' of the trust, an expression used again and again in the sub-section, can be altered where they cannot be fulfillled or cannot be carried out according to the directions given and the 'spirit of the trust'. The phrase 'spirit of the trust' recurs in the sub-section. It is not a new phrase. It is taken from the Charities Act of 1960 of U.K. There it was borrowed from the Education (Scotland) Act 1946, (See section 116(2) of the Act of 1946). Although doubts about its meaning have been expressed by the editor, Mr. J. M. Shelat of Mulla's Code of Civil Procedure, 14th edn. at page 562 that it is a vague term and will give 'scope for fresh disputes and the consequent litigations', in our opinion, it should not create any real difficulty. It has been judicially paraphrased as 'equivalent in meaning to the basic intention underlying the gift, as ascertained from its terms, in the light of the admissible evidence.' (Re. Lepton's Charity 1972 Ch. 276).
(16) Sub clause (iv) of clause (e) provides the widest illustration of the doctrine of cy pres. But although the words are very general it does not have a completely unlimited effect. It is still necessary to take into account the 'spirit of the trust'. And this will prevent a cy pres scheme being made simply because the original purpose selected by the donor would be less effective than some other application. It is still essential to establish that the mode of application which the donor selected has 'ceased' to be 'a suitable and effective method'. In Re Lepton's Charity it was held that the court had jurisdiction where the original purposes, in whole or in part, cannot be carried out according to the direction given and to the spirit of the trust, to direct an application of the property cy pres. The jurisdiction to make a scheme is exerciseable by the court under section 92(3) of the Code. (See Generally Parkar and Mellowes Modern Law of Trust 5th ed, pp. 230-232; Riddall Law of Trusts 2nd ed pp, 108-109).
(17) We have said enough on section 92(3) of the Code of Civil Procedure because the matter will have to go to the District Judge. He will frame a scheme after hearing all the interested parties and in particular the appellant and respondents 2 to 5. We direct him to formulate a scheme for the execution of a charitable trust. The court acts pro bono public for the protection of charities. It applies the overriding test whether the purpose is for the public advantage. Hospital, library, school lie in the heart of the province of charity.
(18) The appellant made a request to us that the charity to which the compensation amount is to be donated should be named after his maternal grand-father. We have acceded to this request. The appellant was the donor. To perpetuate the memory of his maternal grand-father we have agreed to the request and order that the charity to which the compensation amount will be applied will be called 'Ganga Sahai Ram Sarup Charity.
(19) There remains to consider one argument which was raised by the appellant. Mrs. Pappu, his counsel, submitted that the appellant in his personal capacity was entitled to the compensation amount on the ground that there was a resulting trust in his favor. We were referred to Keetan's Law of Trusts 9th ed. page 171 and Underhill's law of Trusts and Trustees 12th ed. page 196. We cannot accept this argument. If it should be impossible or impracticable to apply funds for the precise charitable purpose intended by the donor, the question arises whether the trust should fail, or whether the funds should be applied for a slightly different charitable purpose. Generally the resulting trusts doctrines do not apply to property once dedicated to charity (Mandsley and Burns Trusts and Trustees 3rd ed. p. 404). The cy pres doctrine makes possible the application of funds to purposes as near as possible to those selected by the donor.
(20) SUB-SECTION (3) of Section 92 now provides a comprehensive treatment of the subject. Before the introduction of sub-section (3) the cy pres doctrine could only be applied if it was 'impossible or impracticable to carry out the purpose of the trust : This requirement, although the word 'impossible' was widely construed, caused a number of difficulties; for nothing could be done in cases where the continued administration of the trust was highly inconvenient, but not 'impossible' ; nor where, perhaps through changes in the needs of society or the vahe of money, an old charity served no useful purpose in modern times. The whole matter has been modernised by the Chantries Act of 1960 (sections 13 and 14) in England and section 92(3) in India.
(21) In the case of initial failure where at the commencement of the trust, the object cannot be carried out, it may be possible to infer a resulting trust, if the language of the instrument shows that there was no charitable intention generally. But in a case of subsequent failure there is no requirement to establish that the donor had a paramount charitable intention. If the trust has once operated as a charitable trust, the problem of charitable intention no longer arises. 'Once money is effectually dedicated to charity, whether in pursuance of a general or a particular charitable intent the testator's next of km or residuary legates are for ever excluded'. (Re. Wright 1954 Ch. 347 at p. 362, per Romer III) ' If the money is not used for the hospital' we can imagine a donor saying, 'I want it back' Re: UIeverston and District New hospital Building Trusts (1956) 3 All Er 164. But if the trust is possible at the outlet and only becomes impossible at a later date, then no general charitable intention need be shown in order that the property may be applied cy pres. (Riddall Law of Trusts p. 109).
(22) It must be remembered as Lord Simonds said:
'A charity once established does not die, though its nature may be changed.'
Commissioner of Inland Revenue v. National Ante Vivisection Society 1948 (28) RTC 311). In Mayor of Lyons v. Advocate General, Bengal. (1) Calcutta 303(4) at 318 the Privy Council said:
'THE principle on which the doctrine rests appears to be, that the court treats charity in the abstract as the substance of the gift, and the particular disposition as the mode, so that in the eye of' the Court the gift, notwithstanding the particular disposition may not be capable of execution, subsists as a legacy which never fails and cannot lapse.'
(23) The rule was founded on the presumption that although the gift might be to a particular charily, the intention was to give to charity generally, and the Court thereforee, 'when the particular disposition could not be carried in effect undertook to make a cypres application of the funds in order that charily should not be disappointed. After application to charity, there is no resulting trust for the donor (Hanbury and Mandsley Modern Equity 11th ed. p. 595). This is exactly the case here. The appellant, thereforee, cannot claim that there is a resulting trust in his favor.
(24) The appropriate solution is cypres Section 92(3) is the neat answer. It has been well said that cy-pres is both a remedy as well as a doctrine (Hunbury --Modern Equity 11th ex. p. 509). Once trusts are effectively dedicated to charity, there can be no question of a lapse or a resulting trust save where the gift effectively provides for it. Width of charitable intent becomes irrelevant the moment dedication So a charity takes effect.
(25) The scope of Section 92(3) has yet barely been perceived. It gives powers beyond those of equity in administering trusts. How the property should be devoted to charitable pur poses is no easy question. Go to the 'spirit of the trust'. What was the intention underlying the gift If the donor has manifested a general intention to give to charity, whether in general terms or to charities of a defined character or quality, the failure of the particular mode in which the charitable intention is to be effectuated shall not imperil the charitable gill. If the substantial intention is charitable the court will substitute some other mode of carrying it into effect. So that charity endures for ever.
(26) The legislature was aware that many problems will be faced in keeping the law of public charities in line with modern developments. Much of the work previously done by voluntary bodies is now undertaken by the Government. It is no small problem to make the law of charity adjusted to the pattern of the modern welfare state. Courts have shown courage and enterprise, in their effort to keep' the concept of 'benefit to the community in line with modern needs. Now the legislature has armed the courts with an enlarged and expanded doctrine of cy-pres.
(27) The cold hand of the law fell upon the living body of the charity in 1973. But charity did not die It was not destroyed. The spirit of the trust lives on. The paramount charitable intention of the donor expressed by the mother in 1932 is clearly evidenced. The law will substitute another mode of devoting the property to charitable purposes on the compulsory acquisition of land. Many of the objects which our predecessors made during the last 100 years have in their turn grown out-of-date. The process of modifying the objects of charities is an ever-continuing process Many of these charities have to re-orientate themselves in modern conditions. So long as the power to work remains the work of charity is never finished.
(28) It must be mentioned here that after the decision of the Additional District Judge. respondents 2 to 5 withdrew the compensation amount on furnishing a security bond dated 8-3-1978 which was accepted by the learned Judge on .15-3-78. One Hope stood surety
'TO the extent of the principal amount, that is, Rs. 41,825.50 plus Rs. 15,175 as interest already accrued plus Rs. 17,100 as future interest on the amount of compensation at the rate of 6 percent per annum for the next five years. The total amount comes to Rs. 74,100.50......'
(29) We, thereforee, order respondents 2 to 5 and the surety to deposit in the court of the District Judge the sum of Rs. 74,100.50 paise with future interest from 8-3-83 till the date of deposit at the rate of 6 per cent per annum within one month. The learned District Judge will expeditiously frame a scheme under section 92(3) of the Code after hearing the appellant and respondents and such other persons as he may like to hear. He will then apply the compensation amount for the purposes of public charity under the scheme so framed by him.
(30) We are informed that a reference is pending before the Additional District Judge for enhancement of compensation at the instance of the parties. The amount enhanced in the reference or in appeal will be applied to charity under the scheme framed by the District Judge. The District Judge will inform the Court of the Additional District Judge that the enhanced amount be remitted to his court.
(31) For these reasons the appeal is allowed. The order of the Additional District Judge dated 20-12-1977 is set aside with the above directions. The matter will now go to the District Judge. The parties arc directed to appear before him or, 3-12-84. In view of the fact that the question, of charity was not raised by any of the parties nor considered by the Court we think if right to leave the parties to hear their own costs throughout.