1. This suit has been instituted by the Advocate-General of Bengal for a declaration that the objects of a certain trust known as the Silver Wedding Fund are the education and assistance of children and dependants of Indian officers and soldiers (including non-combatants) who rendered military service under the Crown during the late Great War, or who took part or may hereafter take part in subsequent warlike operations and for an order that the defendants as administrators of the Silver Wedding Fund may be directed to give effect to the said objects and apply the income of the said fund towards helping those who come under the said objects.
2. The facts are as follows:-On the occasion, of the -anniversary of the Silver Wedding of Their Majesties the King-Emperor and the Queen Empress in 1918, a large sum of money was subscribed as an offering to Her Majesty the Queen-Empress as a token of loyalty and affection. Her Majesty the Queen Empress was pleased to accept the gift and to express a desire that the said gift should be devoted to the benefit of His Imperial Majesty's Indian subjects and further that the contributions made should form a fund for promoting the education of the children of Indian soldiers who had fallen in the Great War. The said fund is now vested in the Treasurer for Charitable Endowments. 'By a vesting order made by the Governor-General in Council under the provisions of the Charitable Endowments Act, 1890, the income of the fund was directed to be devoted and applied to and for the higher education of the children of the Indian soldiers (including non-combatants) who had fallen or been permanently disabled during the War. A scheme was settled for the administration of the said fund and certain administrators were appointed. The defendants are the present administrators.
3. For some years past, the entirety of the income of the said fund has not been spent on the said objects, it having been found impracticable to do so, with the result that there has been an accumulation of income of the said fund, which has been added to the capital of the said fund. It was, therefore, suggested that the objects of the said trust, should be extended so as to include the education and assistance of children and dependants of Indian officers and soldiers (including non-combatants) who rendered military services under the Crown during the late Great War, or who have taken part or may hereafter taken part in subsequent warlike operations. The proposed extension having been brought to the notice of Her Majesty the Queen-Empress, she has been graciously pleased to intimate that she agrees to the objects of the trust being extended in manner suggested.
3. The plaintiff, as His Majesty's Advocate-General of Bengal at the relation of the Treasurer of Charitable Endowments, has now instituted the present suit for obtaining the leave of this Court for the extension of the objects of the said fund in manner indicated above. The defendants, who are the present administrators of the said fund, are agreeable to the objects of the fund being extended in the way prayed for by the plaintiff.
4. There is evidence before me that Her Majesty the Queen Empress, who is the author of the trust, is agreeable to the extension of the trust, and therefore, the only question which I have got to determine is whether in the event which has happened, namely, the income of the fund having become greater than is necessary for the purpose originally named, this Court has power to apply the surplus to such other purposes as it may deem proper upon the cy-pres principle. In my opinion, there can be no doubt that the Court has power, in the circumstances which have happened, to apply the surplus to such other purposes as it may deem proper upon cy-pres principle. The term cy-pres is translated to mean 'as near as may be'. The doctrine of cy-pres is, therefore, the doctrine of nearness or approximation and it appears in English Jurisprudence in three separate departments, yet with similar operation and effect; firstly, it is applied in the law of testament; secondly, in the law of private trusts; and, thirdly, in the law of charitable trusts where gifts have been made for charitable purposes, which either originally or in course of time cannot be literally executed. Story in his Equity of Jurisprudence points out that the doctrine has been borrowed from the -Roman Law, for by that law donations for public purposes were sustained and were applied cy-pres to other purposes at least one hundred years before Christianity became the religion of the Empire. In the present case there is a surplus which remains after satisfying the prescribed objects and the present case comes within the rule laid down by Lord Selborne, L. C, in the case of Chamberlayne v. Brockett (1872) L. R. 8 Ch. App. 211., where he says as follows:- 'If the fund should either originally or in process of time be or become greater in amount than is necessary' for that purpose, or if direct compliance with the' wishes and directions of the author of the trust 'should turn out to be impracticable, this Court has 'power to apply the surplus or the whole, as the case 'may be, to such other purposes as it may deem 'proper upon what is called the cy-pres principle.' (See also 4 Halsbury at page 194.)
5. In this view of the matter, I am satisfied that the extended objects are such as this Court will approve. Those objects are, as near as may be, within the meaning of the doctrine referred to above and I therefore make the declaration asked for in the prayer B of the plaint. There will also be a direction as prayed for in prayer C of the plaint. The costs of both parties will come out of the fund as between attorney and client.