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In the early part of the last century many charitable minded and philanthropic Parsis created trusts for charitable or religious purposes to celebrate gaham­bars on festive occasions. A gaham­bar is a religious festival held for communal solidarity, celebrated in a spirit of togetherness with the people concerned. In olden days gahambars were held six times a year. Each gahambar lasted for five days and on the last day, the most important day, a great communal feast was held where the entire congregation, rich or poor, young or old, sat side by side and participated in a spirit of brotherhood. This was usually preceded by a thanksgiving ceremony in the form of a jashan, thanking Lord Ahura Mazda for His benedictions. 

The feast in the gahambar is usually free — without charging any fee. However, each individual is supposed to make some contribution according to his status or means. In olden days contributions by way of a sheep or a goat, a bottle of wine, a bundle of firewood, etc were made on the occasion. If an individual was too poor to afford any contribution his presence at the festival was required to participate in the thanksgiving ceremony. In some cases a small fee was charged for the feast, usually at a subsidized rate (subsidized by the punchayet, the anjuman or the philanthropist concerned), as an incentive to individuals from specified localities to participate in the function.

During the last century the custom followed to celebrate the gahambar was that Parsis from rural south Gujarat and adjoining areas would come from different places either on foot or horse back or by using bullock carts, tongas, carriages and other means of transport (motor cars were not then known) to participate in the function. That cultivated and encouraged a spirit of solidarity and togetherness among Parsis residing in remote areas and many of them made it a point to attend the function to make it a festive occasion. 

The thanksgiving ceremony at the gahambar is at times preceded or followed by a lecture by a high priest or a scholar on religious or other matters of interest to people participating in the function. Gahambars were held at different places to celebrate different festivals. Gahambars in the Dae month (June-July) every year were very popular and attracted a large number of people. 

In some areas of rural South Gujarat these gahambars are observed even today with great enthusiasm and interest. People still relish the old memory when residents of different mohollas (streets) competed with each other in holding gahambars and in serving a variety of courses which were their specialities. All this evinced eloquent testimony to the popularity of gahambars. 

In the course of time, the population of Parsis in rural areas fast dwindled and  few Parsis were left to participate in the gahambars as contemplated by the original trusts. In many cases funds created for such gahambars remained unutilized or were not properly utilized and gahambars virtually became defunct. It is not known how the funds earmarked for gahambars are being used at present. 

In the changed circumstances the charitable intention of the settlor of the trust or the testator of the will to effectuate the gahambar or the original object of the charitable trust to establish the gahambar fund for Parsis could not be duly fulfilled or achieved and that would attract the cy pres doctrine applicable to trusts. 

Section 92(3) of the Code of Civil Procedure, 1908 deals with the doctrine of cy pres. This section provides that the Court may alter the original objects of a trust for public purposes of charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in the circumstances set out therein. 

According to this doctrine if there is a general intention expressed by a donor in favor of a charity, but the object fails initially or at some later stage, the Court will not permit the charity to be defeated but will step in to effectuate the general charitable intention and will effectuate it cy pres, i.e. as nearly as possible to the object which has failed. The doctrine contemplates that with the permission of the Court the income of a trust fund and properties donated to charitable objects which are no longer capable of being achieved or which have become defunct may be applied for other charitable purposes cy pres.

Trustees of many charitable trusts handling gahambar funds are not aware or familiar with the cy pres doctrine. 

Punchayets and anjumans would do well to review charitable trusts in which they hold funds and properties to effectuate the gahambars. In cases where such trusts have become defunct they should make an application to the court of competent jurisdiction for permission to use the income therefrom for other charitable purposes cy pres as mentioned above. 

Before the Court may sanction the alteration of the objects of a charitable or religious trust it must be satisfied that the original objects have failed or the carrying out of these objects has become impracticable or inexpedient. In such a case the general charitable intention expressed by the settlor of the trust to effectuate the gahambar cannot be duly enforced and there remains usually a surplus after the fund is applied for the purpose aforesaid. Court’s sanction can therefore be obtained without much difficulty. 

Due to lack of knowledge regarding the cy pres doctrine several gahambar funds have now become defunct and remain unutilized, wholly or partly. By invoking the doctrine they may be utilized for the advancement of the present generation. 

Rustom S. Gae, a former law secretary to the Government of India, is presently a senior advocate practising in the Supreme Court of India. He is known for his expertise on subjects relating to fiscal laws (including the income-tax law), company law and constitutional law. He writes frequently on legal and other issues pertaining to the community.